Jordan v. Barham

466 S.W.2d 160, 1971 Mo. App. LEXIS 713
CourtMissouri Court of Appeals
DecidedMarch 23, 1971
DocketNo. 33859
StatusPublished
Cited by1 cases

This text of 466 S.W.2d 160 (Jordan v. Barham) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Barham, 466 S.W.2d 160, 1971 Mo. App. LEXIS 713 (Mo. Ct. App. 1971).

Opinion

DOERNER, Commissioner.

While stopped at an intersectional stop sign in Flat River, Missouri, on May 27, 1968, about noon, the automobile being operated by plaintiff Mary Ann. Jordan was struck from the rear by a car being driven by defendant Edgar L. Barham. At the time Barham was acting within the scope of his employment with defendant Hollander and Company, Inc. Trial to a jury of plaintiff’s ensuing action for damages for personal injuries resulted in a verdict and judgment in favor of plaintiff and against both defendants for $10,000, from which defendants appeal.

Only two points relied on are raised in defendants’ brief. In the first they assert that the trial court erred in denying defendants’ request for a continuance after permitting plaintiff to amend her petition during the trial. Plaintiff went to trial on a petition in which she alleged, among other matters, that as a result of the collision, “* * * Plaintiff was thereby caused to become, and permanently will be sick, * * So far as the transcript before us shows defendants made no motion for a more definite statement as to plaintiff’s allegation that as a result of the accident she had been caused to become “sick.”

In the course of her direct examination plaintiff testified, without objection, that on June 20, 1968, following the accident, she was hospitalized for a period of 23 days for what she termed as bronchial pneumonia. Counsel for defendants cross-examined plaintiff about her illness at the time she entered the hospital and about the state of her health immediately prior thereto. During the direct examination of plaintiff’s treating physician, Dr. Bryan A. Michaelis, he stated, again without objection, that plaintiff was admitted to the hospital on June 20, 1968, under his care, for the reason that she was having shortness of breath and a cough productive of mucus; and that she remained in the hospital under his care until July 13. He also related that during that period plaintiff had continued to have a cough, had been given oxygen, was quite ill, and her recovery had been slower than usually expected.

Counsel for plaintiff then asked Dr. Michaelis whether, in his opinion, based upon reasonable medical certainty, there was a causal connection between plaintiff’s condition for which she had been hospitalized and the accident of May 27. Defendants’ counsel objected on the grounds that plaintiff’s illness was outside the scope of the pleadings. Before the trial court could rule on the objection the defendants’ counsel asked for and was granted leave to question the doctor on voir dire regarding his final diagnosis as shown on the hospital report; plaintiff’s counsel, at the request of defendants’ counsel, supplied the latter with the original hospital record, in which the diagnosis recorded was bacterial bronchitis; and defendants’ counsel sought and obtained from plaintiff’s counsel an agreement that defendants’ counsel might introduce the hospital record without further identification as he announced he would do.

At that point defendants’ counsel stated that if it was plaintiff’s intention to attempt to establish the causal connection he objected to it as being beyond the scope of the pleadings, and when plaintiff’s counsel replied that such was his intention, the objection was repeated. In the course of the colloquy about the hospital record the [162]*162parties had approached the bench, and apparently some discussion had occurred which was not recorded, for after the last objection the court remarked:

“THE COURT: In view of Counsel’s statement before we started back on the record that defense was apprised of this in the taking- of the doctor’s deposition, and in view of the Plaintiff’s testimony this morning that came in without objection that she had this attack of, I thought it said Pneumonia, but whatever —Bronchial Pneumonia is what she testified to, the Plaintiff’s Counsel will be permitted to include this incident that the doctor is now testifying to, in the—

Defendants’ counsel then interrupted to ask plaintiff’s counsel whether he was asking for the right to amend the pleadings, and plaintiff’s counsel replied in the affirmative. Thereupon, without waiting for the court’s ruling, defendants’ counsel interrupted to state that he had to change his objection, and asked for a continuance “on the grounds that the petition has been amended and an allegation which we did not anticipate ever being presented are now being made a part of the pleadings.” The court asked for the date of the deposition of Dr. Michaelis, which defendants’ counsel gave as October 23, 1969; the latter stated that no attempt was made in the deposition to establish the causal connection; and at the request of counsel for plaintiff defendants’ counsel stipulated that he had taken the deposition. The court then overruled the objection of counsel for defendants and also denied the request for a continuance. When the testimony of the doctor continued he expressed the opinion that plaintiff had had continuous discomfort and pain from the injuries to her neck suffered in the accident; that she was thereby unable, as a normal person would, to clear her bronchi of secretion which accumulated; and that as a result the germs grew in her body, as in a culture, and “* * * this is why I state that in my opinion this is a reasonable medical certainty that had she not had the pain from the accident that this would have been unlikely to have occurred.”

By the amendment made the allegation in plaintiff’s original petition that “ * * * Plaintiff was thereby caused to become, and permanently will be sick * * *” was amended to charge that “* * * Plaintiff was thereby caused to become sick, to-wit Bronchitis, bacterial * * In support of his complaint that the trial court erred in denying the defendants’ request for a continuance defendants cite Simon v. S. S. Kresge Co., Mo.App., 103 S.W.2d 523; Gaines v. Schneider, Mo.App., 323 S.W.2d 401; Hamilton v. Slover, Mo., 440 S.W.2d 947; Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679; Rodenberg v. Nickels, Mo.App., 357 S.W. 2d 551; and Pain v. Metropolitan Street Ry. Co., 170 Mo.App. 574, 157 S.W. 127. A careful examination of those cases (except the last, in which no question of amendment or continuance was involved) establish the general rule, well stated by this court in Simon (103 S.W.2d 523, 526), to be as follows:

“* * * the question of whether an amendment to a pleading should be allowed during the course of a trial, and, if so, whether a continuance should follow if applied for, are all matters reposing largely in the sound discretion of the trial court. * * *”

The extent of the wide discretion reposed in the trial court and its virtual immunity from appellate review has been repeatedly recognized by our Supreme Court:

“* * * Such discretion of the trial court is rarely interfered with by the appellate courts of this state, and then only when the trial court has palpably abused its discretion in permitting or refusing the amendment to be made. * * *” Dyer v. Harper, 336 Mo. 52, 77 S.W.2d 106, 109.

And see Civil Rule 55.54, V.A.M.R.; Hamilton v. Slover, supra; Parsons Construction Co. v. Missouri Public Service Co., [163]

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Bluebook (online)
466 S.W.2d 160, 1971 Mo. App. LEXIS 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-barham-moctapp-1971.