Krame v. Waller

849 S.W.2d 236, 1993 Mo. App. LEXIS 298, 1993 WL 51091
CourtMissouri Court of Appeals
DecidedMarch 2, 1993
Docket61014
StatusPublished
Cited by20 cases

This text of 849 S.W.2d 236 (Krame v. Waller) 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
Krame v. Waller, 849 S.W.2d 236, 1993 Mo. App. LEXIS 298, 1993 WL 51091 (Mo. Ct. App. 1993).

Opinion

GRIMM, Judge.

In this jury-tried action, plaintiffs Francis L. (Fran) Krame and her husband Francis F. Krame sought to recover damages suffered as a result of two separate vehicular collisions Fran had; one with defendant Karen Waller, the other with defendant Daniel Fagnani. The jury found in Fran’s favor and assessed her damages at $1,000.00 against each defendant, for a total of $2,000.00. The jury found husband did not sustain any damages. On appeal, among other things, she contends the award was inadequate. We affirm.

I. Background

On October 6, 1986, while en route to Syberg’s, plaintiff’s 1 vehicle was struck in the rear by a vehicle driven by defendant Waller. The collision was described as a “fender-bender type accident.” Following the collision, her teeth and neck hurt. No medical treatment was obtained that evening. Rather, plaintiff continued on to her destination.

The next morning, plaintiff awoke in pain. She saw a chiropractor that day and continued seeing the chiropractor during 1986 and 1987.

Sixteen days after her collision with the Waller vehicle, defendant Fagnani’s vehicle collided with hers, pushing it into the side of a Bi-State bus. Plaintiff was bounced around in the car.

Between the time of the first collision and the trial in July 1991, plaintiff saw numerous types of physicians. Physicians prescribed about fifty different medications for her. She presented evidence that she incurred over $27,000.00 in medical bills and other expenses.

Medical evidence presented by defendants and plaintiff conflicted concerning whether plaintiff’s complaints and injuries were caused by the collisions. Photographs of plaintiff’s and defendant Waller’s vehicles, taken after the first collision, showed minimal damage to either vehicle.

II. Post-trial Motions

For her first point, plaintiff alleges the trial court erred in overruling her alterna *239 tive motions for j.n.o.v., additur or new trial because the $2,000.00 jury verdict “was grossly inadequate and against the weight of the uncontroverted medical evidence which showed that [she] had been injured as a result of the collisions and had incurred reasonable medical expenses as a result of the two collisions in the amount of $27,636.96.”

Plaintiff first asserts that her motion for j.n.o.v. should have been granted. However, where, as here, damages are un-liquidated, the amount of damages to be awarded is a jury question. Thus, the trial court did not err in denying plaintiff’s motion for a j.n.o.v.

Next, plaintiff asserts that additur was appropriate in this case. However, she did not develop this issue in the argument portion of her brief. As a result, she did not preserve this issue for appellate review. See Hall v. Hall, 804 S.W.2d 411, 415 (Mo.App.W.D.1991); see also Rule 84.-04; Big Boys Steel Erection, Inc. v. Hercules Constr. Co., 765 S.W.2d 684, 687 (Mo.App.E.D.1989) (“We are not required to address assertions made without reasoning.”)

Finally, plaintiff asserts that the trial court should have granted her motion for a new trial. She argues the jury verdict was grossly inadequate and against the weight of the evidence.

Our review of the trial court’s denial of plaintiff’s motion for new trial on these grounds is “limited to whether the trial court abused its discretion.” Barr v. Plastic Surgery Consultants, Ltd., 760 S.W.2d 585, 588 (Mo.App.E.D.1988) (citing Summers v. Fuller, 729 S.W.2d 32, 33 (Mo. App.E.D.1987)). Our consideration is confined to the evidence that supports the trial court’s ruling. White v. Otten, 810 S.W.2d 704, 705-06 (Mo.App.E.D.1991).

The trial court has broad discretion; it may consider the credibility of the witnesses and weigh the evidence. Id. 810 S.W.2d at 706. We, on the other hand, do not weigh the evidence. Lauber v. Buck, 615 S.W.2d 89, 91 (Mo.App.E.D.1981). We will disturb the trial court’s ruling “only when there is a complete absence of probative fact to support a verdict.” See Lau-ber, 615 S.W.2d at 91.

We acknowledge that plaintiff’s expenses exceeded the amount of damages the jury awarded. However, a finding of negligence does not require a jury to find “that all the post-accident ailments detailed by [plaintiff] ... were proximately caused by [defendants].” Foss v. Anderson, 745 S.W.2d 189, 192 (Mo.App.E.D.1987). Jurors are free to reject evidence, even expert testimony concerning causation.

We find no abuse of discretion. Our review of the evidence indicates there were rational bases for the jury’s award. The verdict was not unresponsive to the evidence. See id. 745 S.W.2d at 192-93. Point denied.

III. Physicians’ Letters

For her second point, plaintiff alleges “the trial court erred in allowing [defendant Fagnani’s] attorney to read into evidence excerpts from letters of Dr. Yoon and Dr. Shitut because they were inadmissible hearsay, the defendant failed to lay a proper foundation and because the court would not allow the entire letter to be read into evidence resulting in prejudice to the plaintiff.”

A. Hearsay

At trial, plaintiff never objected to these letters on the basis that they were hearsay. 2 “A party may not present for consideration on appeal a different ground than that asserted at trial.” Dummit v. Burlington Northern R.R. Co., 789 S.W.2d 136, 139 (Mo.App.E.D.1990).

B. Experts’ Qualifications

At trial, plaintiff objected to the reading of the excerpts because neither doctor had been qualified as an expert. The trial court overruled her objection.

“[Qualification of a witness as an expert is largely within the discretion of the trial *240 judge.” Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 208 (Mo.banc 1991). Here, plaintiff admitted that she sought the opinions of these physicians on her own. She further admitted that Dr. Yoon is a neurosurgeon, and Dr. Shitut, an orthopedic surgeon. She testified that both physicians, after examining her, advised her that surgical intervention was not necessary.

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Bluebook (online)
849 S.W.2d 236, 1993 Mo. App. LEXIS 298, 1993 WL 51091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krame-v-waller-moctapp-1993.