Squires v. City of Chillicothe
| Decision Date | 07 June 1886 |
| Citation | 1 S.W. 23,89 Mo. 226 |
| Parties | Squires v. The City of Chillicothe, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. James M. Davis, Judge.
Affirmed.
C. H Mansur and Paul Dixon for appellant.
(1) The Carroll court had no jurisdiction. The petition for change of venue was not sworn to by the plaintiff, in whose favor the change was granted. Levin v. Dille, 17 Mo. 64; Huthsing v. Maus, 36 Mo. 101; Norvell v Porter, 62 Mo. 312; Ewing v. Brooks, 69 Mo. 49; Fields v. Malony, 78 Mo. 175. (2) Doctors McLeod and Marshall, as the personal physicians of the plaintiff, were incompetent to testify as to matters learned from a personal examination of plaintiff after the relation of patient and physician was once established. Sec. 4017, R. S. of Missouri 1879; Gartside v. Conn. Life Ins. Co., 76 Mo. 446. (3) The court erred in refusing instruction number three, offered by defendant, to the effect that the "defect in the sidewalk had to be so open and palpable, as to be apparent, and necessarily attract the attention of passers by, to make defendant liable." Dewy v. Detroit, 15 Mich. 307; Bonine v. Richmond, 75 Mo. 437; Hume v. New York, 47 New York, 639. (4) Instructions numbers six and seven, offered by defendant and refused, should have been given. Bassett v. St. Joseph, 53 Mo. 303; Brown v. Mayor of Glasgow, 57 Mo. 157; Craig v. Sedalia, 63 Mo. 417. (5) The question propounded to Dr. McLeod, if he was a competent witness, relative to the permanency of the injury and his answer thereto, are too remote and speculative in character, and open too wide a door to the jury to assess damages upon. Strohm v. Railroad, 96 N.Y. 305; White v. Milwaukee, 20 C. L. J. 11. (6) Fannie Squires, the sister, Sarah Squires, the mother, and John Squires, the father, gave incompetent and illegal testimony being a narrative of past events, and not exclamations or expressions of pain. Whar. Evid. [2 Ed.] sec. 268 and note 2; Bacon v. Charlton, 7 Cush. 581; Gray v. Marlborough, 9 Gray, 244. (7) The questions propounded to Leggett, Seiser and Butner, were competent, and the city could show that the sidewalk was of a greater width than the travel demanded, and that a sufficient width to accommodate the traveling public was in good repair and condition. Bassett v. St. Joseph, 53 Mo. 303; Brown v. Glasgow, 57 Mo. 157; Craig v. Sedalia, 63 Mo. 417; Rapalje and L.'s Law Dictionary, "Immaterial;" Shelton v. Durham, 73 Mo. 434; Kansas City v. Railroad, 77 Mo. 181; Rule 63, and illustration 13, Lawson's Ex. Ev.
Broaddus & Wait and Wynne & Davis for respondent.
(1) The court had jurisdiction and the objections made by appellant came too late. Potter v. Adams, 24 Mo. 159; State v. Knight, 61 Mo. 374; State v. Dodson, 72 Mo. 284. (2) The opinion of the medical experts was properly admitted. Campau v. North, 39 Mich. 606; Penn. Mut. Life Ins. Co. v. Wilson, 50 Am. Rep. 769. In Campau v. North, the court says that the party has rights in this case, and "that a rule intended as a shield is not turned into a sword." (3) The instruction asked by appellant is erroneous, and there was no basis for it, the city had actual notice through its mayor. And constructive notice, the law presumes notice after a reasonable length of time. Brady v. Lowell, 3 Cush. 121; Hutchison v. Littleton, 124 Mass. 289; Market v. City of St. Louis, 56 Mo. 189; Bonine v. City of Richmond, 75 Mo. 437. (4) Instructions six and seven asked by appellant are not the law and were properly refused. The case was fully presented by the instructions given. Weisenberg v. City of Appleton, 26 Wis. 56. (5) There was abundance of evidence tending to prove the permanency of the injury; certainly enough to submit it to the jury. Kelly v. Railroad, 70 Mo. 604. The fourth instruction for respondent was properly given. Railroad v. Donahoe, 70 Pa. St. 119; Whar, on Evid. 512; Sedgwick on Measure of Damages [Ed. 1868], side page 104. (6) The testimony of John Squires, Fannie Squires and Sarah Squires, was competent. "When questions as to the condition of the mind are in issue there are many things in the acts, deportment and appearance of the party that create and fix a reliable judgment in the mind of the witness, that cannot be conveyed by words," and that is the test. Whar. on Evid. 512; Railroad v. Budlong, 10 How. Prac. 283. Declarations of pain may be given in evidence. 1 Greenl. Ev. [8 Ed.] sec. 1021; Mattheson v. Railroad, 35 N.Y. 487; Murphy v. Railroad, 66 Barbour, 125; Barker v. Meriam, 11 Allen, 322; Knight v. Smyth, 57 Vt. 529, and authorities cited. Even though the party may testify (Kennard v. Barton, 25 Me. 39), or whether it be at time of injury or after (Quafs v. Railroad, 48 Wis. 573, and 25 Minn. above cited; 33 Am. Reports, 821, and note on page 829); the time refers to time of exclamation and not to injury. Citing Lush v. McDaniel, 13 Iredell, 485; Rogers v. Crain, 30 Texas, among others. (7) "Opinions of witnesses are never received when all the facts can be ascertained and made intelligible to the jury." Clark v. Fisher, 1 Paige Chan. 171; Dewitt v. Bailey, 9 N.Y. 392; Jefferson v. Cotheal, 7 Wendell, 72; Whittier v. Town of Franklin, 5 Am. Law Reg. [N. S.] 704.
This is an action against defendant for damages for an injury to plaintiff, alleged to have been occasioned by the neglect of defendant to keep its side walks in good repair, and in a secure and safe condition for the traveling public. Plaintiff states that she was walking upon the sidewalk and without her fault, in consequence of defects in said sidewalk, was thrown to the ground and seriously injured. The answer denied the material averments of the petition, and alleged that plaintiff's own carelessness and negligence were the occasion of her fall and injury. Plaintiff had a judgment, from which this appeal is prosecuted.
On the trial of the cause, plaintiff introduced as witnesses physicians who had attended her, to testify to her injuries, from knowledge derived from her, and from an examination of her person, and of this defendant complains, relying upon Gartside v. Ins. Co., 76 Mo. 446. That case has been overruled. Groll v. Tower, 85 Mo. 249. The testimony was admissible.
Nor did the court err in admitting the testimony of Fannie Squires and John Squires, as to the condition of her health and her complaints of suffering, after the fall on the sidewalk. Mr. Greenleaf in his work on Evidence says: " Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence." 1 Greenl. Evid., sec. 102. The testimony objected to related to the pain and suffering then experienced, indicating the present existence of pain, and had no reference to antecedent suffering, or pain, or its cause.
With regard to the permanency of the injury two physicians testified; one that he "found an enlargement of the uterus at the fundus in the hollow of the sacrum, an injury to the mouth of the womb, it being turned forward," and "that, if the disease still exists, it is probable that it will never be entirely removed, still it may possibly be." The other, that "by a digital examination in May or June, 1882, he found that there was prolapsus between the first and second degree." The injury occurred in April, 1882. Dr. McLeod examined the patient in September, 1882. The contention of appellant is, that there was "a mere possible continuance of disability by reason of the injury," and that this is not a proper element of damages. We do not so understand the testimony. The possibility is the other way, not that she may labor under a permanent disability, but that it is possible that the disability may be removed. There was a probability of a permanent disability, and a bare possibility that the disability would not be permanent.
Nor did the court err in refusing the following instruction asked by defendant:
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