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08/02/83 ALFRED M. WEATHERLY v. THOMAS EUGENE

August 2, 1983

ALFRED M. WEATHERLY, PLAINTIFF-APPELLANT,
v.
THOMAS EUGENE MISKLE, DEFENDANT-RESPONDENT.



From the Circuit Court of St. Charles County; Civil Appeal; Judge Fred Rush.

Before Pudlowski, P.j., Smith, Kelly, JJ.

The opinion of the court was delivered by: Pudlowski

This is an appeal from a cause of action arising out of an automobile collision in which the jury's verdict was in favor of the defendant-respondent and against plaintiff-appellant. The principal issue on appeal is whether the trial court erred in admitting into evidence a letter written by a chiropractic doctor and sent through bulk mail advertising to attorneys. We affirm.

On June 4, 1980, appellant was operating his automobile in St. Charles County, Missouri. The appellant was stopped at a traffic signal when his automobile was struck from behind by an automobile operated by respondent. The impact of the collision caused appellant to strike the steering wheel and the roof of the car.

Respondent testified by deposition that it had been recently raining and the road was wet. Respondent further stated that while operating his vehicle, debris from passing vehicles splashed on his windshield. Respondent attempted to clear the debris by turning on his wipers but this resulted in smearing the windshield and obstructing his vision. When the debris finally cleared, respondent observed appellant's car in front of him but was unable to stop his vehicle in time to prevent the accident. Respondent estimated he was traveling at 30-35 miles per hour when first viewing appellant's vehicle.

Subsequently, appellant was taken by ambulance to St. Joseph's Hospital in St. Charles. At St. Joseph's, appellant was x-rayed and given instructions to apply ice and then heat to his neck and lower back. Upon leaving the hospital appellant was treated by Dr. William Schierman. After three visits, Dr. Schierman determined that no permanent injury resulted from the accident. One month later, appellant visited Anthony Sciortino, a chiropractic doctor. Dr. Sciortino testified by deposition that the accident of June 4 caused injuries to appellant's spine, neck and back and that these injuries are permanent.

On behalf of the respondent, appellant was examined by Dr. Edwin Carter, a medical doctor specializing in orthopedic surgery. Dr. Carter found no objective signs of any residual disability from the accident and no permanent disability.

Robert Holdman, a records custodian for Commercial Letter, Inc., also testified by deposition on behalf of respondent. He appeared in response to a subpoena duces tecum for records of mail advertising done by Dr. Sciortino. Holdman produced a four paragraph letter that was sent to Commercial Letter, Inc.'s mailing list of attorneys. On September 26, 1980 and September 29, 1980, Dr. Sciortino's letter was mailed to 2,081 attorneys. The letter reads as follows:

Enclosed is a brochure of the Northwest Chiropractic Centre which we hope you will find informative and interesting regarding the practice of Chiropractic.

At the Centre we have endeavored to keep pace with the evergrowing acceptance of Chiropractic in the field of personal injuries due to auto and work-accident injuries. We feel strongly confident that Chiropractic is able to provide the best possible care in a great majority of these accident cases.

We would be delighted to show you our office and demonstrate how Chiropractic can effectively treat conditions regarding post-injury care and discuss in detail Chiropractic's answer to soft tissue injury and other accident related problems.

We look forward to hearing from you.

Sincerely,

/s/ Anthony J. ...


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