Kenniston v. McCarthy

858 S.W.2d 268, 1993 Mo. App. LEXIS 1109, 1993 WL 265174
CourtMissouri Court of Appeals
DecidedJuly 20, 1993
DocketNo. 62387
StatusPublished
Cited by8 cases

This text of 858 S.W.2d 268 (Kenniston v. McCarthy) 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
Kenniston v. McCarthy, 858 S.W.2d 268, 1993 Mo. App. LEXIS 1109, 1993 WL 265174 (Mo. Ct. App. 1993).

Opinion

CRANE, Judge.

Plaintiff, Terence P. Kenniston, brought an action against defendant, Timothy G. McCarthy, for damages sustained as a result of personal injuries suffered in an automobile collision. The jury found defendant 100% at fault and awarded plaintiff $5000 in damages. The trial court entered judgment in accordance with the verdict. Plaintiff appeals. He contends the trial court erred in 1) failing to grant a mistrial when collateral source payments were brought out at trial and 2) denying his motion for new trial due to inadequacy of the verdict. We affirm.

In this appeal the only factual issues concern the nature and the extent of the injuries suffered in the accident and whether the verdict adequately compensates plaintiff for those injuries. We view the facts in the light most favorable to the verdict and in the light most favorable to the trial court’s denial of a new trial on the grounds of insufficiency of the verdict.

On July 20, 1989 plaintiff, a Maryland Heights police officer, was driving south on the access road to Westport Plaza when his vehicle was struck by defendant’s northbound vehicle. The hospital emergency room where plaintiff was treated immediately after the accident recorded that he complained of pain in his left shoulder and left rib area. There was no mention of any impact or suspected injury to the knee. The hospital x-rayed his left shoulder, chest and left ribs. That night, after being treated, plaintiff wrote an accident report in which he described his injuries as follows:

Be advised that just before impact I attempted to brace myself by locking my left arm on the steering wheel and my left thigh under the steering wheel and turn my hand and torso to the right. That caused the injuries to my left wrist, left shoulder, and left thigh.

On July 21, 1989 plaintiff visited his personal physician and reported an injury to his left shoulder, mild neck stiffness, and a bruise on his left thigh. His personal physician subsequently treated his left shoulder and, because of continued pain in the shoulder, advised him to stay off work until August 7, 1989. Two weeks after the accident, plaintiff resumed lifting weights and running up to several miles per day. Plaintiff’s medical bills for emergency treatment after the accident and continued treatment of his shoulder did not exceed $514.65. Plaintiff lost twelve days of work with Maryland Heights and three days of work at secondary jobs before he returned to work on August 7. Plaintiff’s lost wages for this time off totalled $1,615.80.

On November 13, 1989 plaintiff visited his personal physician and complained of pain in his left knee for the first time. Plaintiff complained that his knee had become progressively worse due to running and exercising. On December 8, 1989 plaintiff visited an orthopedic surgeon who testified that plaintiff complained of knee problems over the past one and one-half years due to running. At that time plaintiff did not mention an automobile accident to the orthopedic surgeon. An MRI of plaintiff’s left knee showed a degenerative softening of the cartilage. On February 8, 1990 arthroscopic surgery was performed on plaintiff’s left knee. The medical bills for treatment of plaintiff’s left knee to-talled over $4000. Plaintiff lost eight days of work following the surgery. Almost one year later, on January 18, 1991, plaintiff first mentioned the automobile accident to the orthopedic surgeon.

For his first point on appeal, plaintiff asserts that the trial court erred in overruling his request for a mistrial. Plaintiff claims that defense counsel injected the issue of collateral source payments on two occasions: (1) when defense counsel asked about payment of plaintiff’s medical bills and (2) when defense counsel questioned plaintiff about payment of wages during his time off work. Plaintiff argues that the trial court should have granted a mistrial because the trial court had sustained a motion in limine to exclude evidence of workers’ compensation payments made to plaintiff and because the evidence was irrelevant and prejudicial in that plaintiff had [270]*270already presented evidence of lost wages and medical expenses.

On direct examination plaintiff presented evidence of wages lost and medical bills incurred as a result of injuries to both his left shoulder and his left knee. Defendant’s cross-examination of plaintiff began as follows:

Q. Mr. Kenniston, about those medical bills that you have listed, are those bills paid?
A. I didn’t pay them, sir.
Q. But have they been paid?
A. I think they probably have been taken care of, yes.
Q. Now, with regard to your lost time from the police department, I understand that you are on salary, is that correct?
A. Yeah, we’re salaried employees. But, since they pay us overtime they have broken it down into an hourly rate so they can figure a time and-a-half wage.
Q. Were you actually docked your salary for the time that you missed?
A. Was I docked my salary, no, sir.

After this answer was given, plaintiff objected to the question regarding docked wages on the grounds it violated the collateral source rule. Plaintiff moved for a mistrial, which the trial court denied. However, the trial court sustained plaintiff’s objection and, at plaintiff’s request, instructed the jury to disregard the last question and answer.

At the beginning of trial the next day, plaintiff made a record on his motion for mistrial outside the presence of the jury. Plaintiff testified that he was not paid his salary by his employer during .his time off work but instead received payments from his employer’s workers’ compensation carrier. Plaintiff also raised an objection to the two questions about payment of medical bills asked during the previous day’s cross-examination. He asserted that the questions violated the collateral source rule and constituted an attempt to bring workers’ compensation to the attention of the jury. The trial court overruled this objection on the grounds that plaintiff’s response that he had not paid the medical bills had been volunteered and that it was permissible to establish that the bills had been paid. After proceedings resumed before the jury, plaintiff was asked on redirect to “clear up” his previous response and testified that he had not received any pay from Maryland Heights for the time he was off work.

Plaintiff contends that the trial court erred in not declaring a mistrial when he testified to collateral source payments of both medical bills and lost wages. Because plaintiff only requested a mistrial with respect to the testimony regarding lost wages, we limit our review to that issue.

Plaintiff asserts that he was entitled to a mistrial because the evidence regarding payment of wages during his time off work was evidence of collateral source payments. Evidence that a plaintiff has received indemnity or compensation for an injury or loss from workers’ compensation is ordinarily inadmissible because it is unrelated to liability or damages and may raise a false issue in the case. Sampson v. Missouri Pac. R.R. Co., 560 S.W.2d 573, 584 (Mo. banc 1978). When a witness unexpectedly volunteers an inadmissible statement, the proper remedial action rests largely within the trial court’s discretion.

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Bluebook (online)
858 S.W.2d 268, 1993 Mo. App. LEXIS 1109, 1993 WL 265174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenniston-v-mccarthy-moctapp-1993.