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Stephenson v. Air Products & Chemicals

OCTOBER 10, 1969.




Appeal from the Circuit Court of Madison County; the Hon. AUSTIN A. LEWIS, Judge, presiding. Judgment affirmed.


Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $300,000.

In the first trial of this case, the jury returned a verdict in favor of plaintiff, the circuit court ordered a new trial on the issue of damages only, and this court denied plaintiff's petition for leave to appeal.

The injuries of which plaintiff complained in the first trial were suffered on July 7, 1961. Prior to the second trial, plaintiff amended his complaint to allege that as a result of his permanent injuries he "has been caused to suffer additional injuries. . . ." Defendant filed a motion stating that upon taking plaintiff's deposition it learned of a fall allegedly suffered on June 24, 1966, and plaintiff was contending the fall occurred because of the condition of his leg as the result of the injuries sustained in July 1961. In compliance with an order entered by the circuit court, and to meet issues raised in defendant's motion to strike or make more definite and certain, plaintiff amended his complaint to allege that as a direct and proximate result of the injuries previously suffered "and inherently related to these same injuries, plaintiff was caused to fall on the 24th day of June, 1966, at Irving School in St. Louis, Missouri, while he was in the exercise of ordinary care for his safety and without the intervention of any intervening cause or condition, plaintiff did sustain severe and additional injuries to his head, body and right foot, including a fracture thereof, which said injuries are permanent and permanently disabling."

Plaintiff testified that he is 41 years of age, has a tenth grade education; prior to July 7, 1961, his health was good; he has been employed as a painter for 15 years; in July of 1961, a flagpole fell while he was painting it and he fell 20 to 25 feet to the rooftop on which it was mounted; he was treated by various physicians; he returned to work in 1963; he could not do the required lifting and his fellow workers helped him; his leg "folded up" on him on many occasions; he described falls while working in 1963 and 1964, and on other occasions when he was not working. In June 1966, while painting in a school his left leg "folded up" and he fell off a pick and broke his foot. A pick is a walk board that is placed on two ladders.

Louis Mifflin testified that he is a painter, had known plaintiff 10 or 15 years, was working with plaintiff on July 7, 1961, when a flagpole at defendant's premises gave way while plaintiff was working near its top; he worked with plaintiff on various jobs; prior to July 7, 1961, plaintiff had performed his work well, but on jobs between 1963 and 1966, plaintiff "performed his work very poorly" and needed help in carrying paints and ladders; plaintiff sustained several falls; he was working with him on June 24, 1966, when plaintiff started to make a step, "his leg collapsed" and he fell 8 feet off a pick.

Donald Cook, a painter, testified that he had worked with plaintiff at various jobs since April 1963, plaintiff fell on a job in "the middle of 1965" and said "his leg gave way on him"; he described falls suffered by plaintiff later in 1965 and May 1966.

Raymond Reed, a painter, had worked with plaintiff on various jobs since April 1963; on a job in September, 1964, plaintiff's leg gave way and he fell, he was laid off the job several times and Reed, as shop steward, intervened to get him back on; plaintiff needed help to lift things on the job; he fell on another occasion.

Dr. Bart Cole, an orthopedic surgeon, testified that he was called by Dr. Bowers to see plaintiff, who was then confined to St. Elizabeth's Hospital in Granite City. Plaintiff stated he had suffered a fall, prior to which he was in good health. He complained of pain in his neck, back and shoulders. The doctor identified X rays which he stated revealed loss of normal cervical lordosis and scoliosis. He made a diagnosis of cervical radiculitis and a lumbosacral joint derangement. Plaintiff was seen by Dr. Cole three times in 1961, seven times in 1962, in April 1963 and June 1964. He continued to have trouble with his neck, shoulder and back. There was a limitation of motion in lateral bending and a loss of left ankle reflex.

Dr. Cole saw plaintiff in 1966 at St. Mary's Hospital in East St. Louis. He gave a history of an injury several days earlier when his leg "gave way" and he fell. X rays revealed a compression type fracture of the right heel bone. X rays taken in January 1967 showed the loss of cervical lordosis and scoliosis as observed earlier, but with some improvement.

Examination in January 1967 showed a loss of motion in the right foot and an X ray in June 1967 showed subtaler arthritis.

Dr. Cole expressed the opinion that the condition found in plaintiff's neck and lower back might or could result from the fall on July 7, 1961, and was permanent. In answer to a hypothetical question he expressed the opinion that there might or could be a causal connection between the injuries suffered on July 7, 1961, and the fall on June 24, 1966. He stated that in his opinion the condition found in plaintiff's foot was permanent, and plaintiff was unable to carry heavy objects, climb, or walk on uneven surfaces.

Dr. John McMahan, a psychiatrist testified that he first saw plaintiff on September 17, 1962. He enumerated plaintiff's complaints, reviewed the history given him and stated he had made a diagnosis of psychophysiological musculoskeletal disorder. He prescribed tranquilizers, and because plaintiff's condition did not improve, he was hospitalized on October 19, 1962. He was given electric shock treatments, and discharged on November 2. In his opinion the disorder described was "connected with" the fall on July 7, 1961. He last saw plaintiff on April 30, 1963, at which time he stated he had gone back to work and "was getting along fairly well."

Dr. John W. Deyton, a specialist in physical medicine and rehabilitation, saw plaintiff for the first time on January 18, 1967. Plaintiff related a history of a fall while painting a flagpole in 1961, was hospitalized, and as the result of his injuries did not work again until April or May of 1963. He told him of a fall on June 24, 1966; he complained of headaches, pains in the shoulders and neck, pain in his arms, loss of grip, pain in the leg, nervousness, and inability to sleep. He wore orthopedic shoes and there was minimal weight bearing on the right foot.

Dr. Deyton testified that upon examination he found restriction in the range of motion of the neck, restriction of motion in the shoulders, limitation of motion of the back, evidence of a fracture of the right heel and ankle, tenderness of the back on palpation, and atrophy of the right leg. He expressed the opinion that plaintiff could not perform work which required bending or lifting, looking up, shoulder flexion or back extension. He found arthritis in the ankle and evidence of pain which would persist until ...

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