Stellwagen v. Gates

779 S.W.2d 351, 1989 Mo. App. LEXIS 1586, 1989 WL 135130
CourtMissouri Court of Appeals
DecidedNovember 9, 1989
DocketNo. 16363
StatusPublished
Cited by2 cases

This text of 779 S.W.2d 351 (Stellwagen v. Gates) 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
Stellwagen v. Gates, 779 S.W.2d 351, 1989 Mo. App. LEXIS 1586, 1989 WL 135130 (Mo. Ct. App. 1989).

Opinion

JOHN C. HOLSTEIN, Special Judge.

Defendant Barbara Gates appeals from a judgment awarding damages to plaintiff David Stellwagen due to injuries sustained by plaintiff when struck by a vehicle being operated by defendant.

The petition was filed in the “Associate Division of the Circuit Court of Lawrence County.” The case was tried before the associate circuit judge without a jury on July 17, 1987. At the conclusion of the trial, the case was taken “under advisement.” On January 22, 1988, more than six months after trial, the associate circuit judge made an entry on the docket sheet awarding plaintiff $4,500 in damages and finding defendant 100% at fault. A typewritten judgment reflecting the docket entry was entered on January 27, 1988. Defendant’s motion to set aside the judgment and for new trial was overruled. An appeal following that judgment was dismissed on the ground that the judgment was void because of the delay between the trial and the judgment entry. The cause was remanded with directions. Stellwagen v. Gates, 758 S.W.2d 195 (Mo.App.1988).

Pursuant to the order of remand, a new judgment was entered on April 14, 1989. Attached to that judgment were findings of fact and conclusions of law which were filed in response to a request by defendant. The new judgment, as the original, found defendant to be 100% at fault and assessed plaintiff’s damages at $4,500.

Defendant appeals claiming the court’s assessment of fault and damages are against the weight of the evidence. Appellate review of a court-tried action is circumscribed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). To conclude that a judgment in a court-tried case is against the weight [352]*352of the evidence, we must entertain a firm belief that the judgment is wrong. Id. An appellate court is bound to give due deference to the trial court’s resolution of conflicting evidence and give due regard to the opportunity of the trier of fact to have adjudged the credibility of witnesses. Citizens State Bank v. Friendly Ford, Inc., 686 S.W.2d 565, 567 (Mo.App.1985). In a court-tried action, the judgment is presumed to be correct. St. Louis County v. Oakville Dev. Co., 676 S.W.2d 919, 921 (Mo.App.1984). The reviewing court accepts as true the evidence and permissible inferences which may be drawn favorable to the prevailing party, and disregards contradictory testimony. Nail Boutique, Inc. v. Church, 758 S.W.2d 206, 208 (Mo.App. 1988). The evidence is discussed with the above principles in mind.

Plaintiff, a 77-year old semi-retired farmer, resides in Lawrence County. His home is located on the north side of Highway CC approximately two miles east of the intersection at Highway 39. Highway CC is a two-lane, blacktop highway, 21 feet wide, which runs in an east and west direction. Plaintiff’s mailbox is located on the south side of Highway CC across from his home. The post of the mailbox is three feet south of the paved portion of the highway. The highway is straight with no obstructions from the mailbox to the west for approximately one-half mile with a slight upgrade toward the east.

On March 7, 1987, between 11:00 and 11:30 a.m. on a dry, sunny day, plaintiff was standing on the east side of his mailbox facing the west, that is facing oncoming eastbound traffic, while retrieving his mail. He was struck by the right front fender of an eastbound automobile operated by defendant. According to defendant, she initially saw plaintiff “halfway across” the highway going to his mailbox as she drove toward the scene of the incident. She was traveling 30 to 40 miles per hour at the time. There was conflicting testimony as to the location of plaintiff at the time of impact. Defendant testified that upon seeing the plaintiff she slowed her vehicle and pulled over toward the centerline to allow more room for passing. Defendant also testified that plaintiff stepped backward and made a turn into the road causing the vehicle to strike plaintiff. According to plaintiff, his body was located approximately 24 inches south of the paved edge of the highway, and no part of his body extended over or protruded onto the paved portion of the road at the time of impact. Plaintiff further stated that he did not see the defendant’s automobile before he was struck. The automobile struck plaintiff in the upper portion of his right leg, below his hip. The impact threw him seven to eight feet into a three-foot ditch located on the south side of the mailbox. Plaintiff came to rest lying on his back with his legs pointing to the west and his head to the east. There was evidence that defendant did not sound a warning, apply her brakes, or swerve before impact.

Defendant stopped her automobile about 20 feet east of plaintiff on the paved portion of the highway and exited her car to inquire as to whether plaintiff was injured. Upon satisfying herself that plaintiff was not seriously injured, she drove off without giving her name and address or other identifying information. The plaintiff took note of defendant’s license plate number as the car drove away and later contacted law enforcement authorities.

Plaintiff suffered severe bruising on the inside of his right leg from his groin downward to the knee and a second bruise, approximately three inches in diameter, on the outside of his right leg. Plaintiff’s leg became swollen and black and blue, although x-rays detected no fractures. For approximately four weeks following the accident, plaintiff was unable to do any work because of the pain, swelling, and limitation of motion in his right leg and hip. Plaintiff was treated with ice packs, Tylenol, and “relaxing pills” at bedtime. He continues to suffer pain when he turns his hip in “a certain way.” The condition seems to persist as a “daily affair,” but at the time of trial it had stabilized. The medical bills introduced into evidence by the plaintiff totalled $141.90. Plaintiff sought damages of $7,500 against defendant for the injuries sustained. Based on [353]*353that evidence, the trial court found “the issues for the Plaintiff and against the Defendant, and assess Plaintiffs damages at the sum of $4,500 and finds Defendant 100% at fault.”

Defendant argues that the evidence adduced by plaintiff on his claim for damages was palpably insufficient to support the figure awarded by the trial court. In support of that contention, defendant asserts that because plaintiff (1) presented no expert testimony as to his injuries, prognosis or permanency of injuries; (2) sustained no cuts, abrasions, broken bones, or pulled ligaments; (3) did not require the use of crutches or other similar devices; (4) did not need continuing medical attention; (5) did not require any special assistance in his day-to-day care; and (6) only sustained severe bruising to his right leg, that his injuries did not warrant the amount awarded by the court. The argument ignores or minimizes the fact that plaintiff presented substantial evidence that he sustained medical expense, temporary disability, and pain and suffering.

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Cite This Page — Counsel Stack

Bluebook (online)
779 S.W.2d 351, 1989 Mo. App. LEXIS 1586, 1989 WL 135130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stellwagen-v-gates-moctapp-1989.