237 S.W. 763 (Mo. 1922), Gricus v. United Railways Company of St. Louis

Citation:237 S.W. 763, 291 Mo. 582
Opinion Judge:JAMES T. BLAIR, C. J.
Party Name:EMILIA GRICUS v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
Attorney:Charles W. Bates and T. E. Francis for appellant. Hall & Dame and D. M. Robinson for respondent.
Judge Panel:JAMES T. BLAIR, C. J. Woodson, J., absent.
Case Date:February 09, 1922
Court:Supreme Court of Missouri
 
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Page 763

237 S.W. 763 (Mo. 1922)

291 Mo. 582

EMILIA GRICUS

v.

UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri

February 9, 1922

Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun, Judge.

Reversed and remanded (with directions).

Charles W. Bates and T. E. Francis for appellant.

(1) The ruling of the court, rejecting evidence by plaintiff's physician concerning complaints of pain made to him by plaintiff, was not reversible error, for the reason that the witness was subsequently permitted to fully testify regarding his own knowledge of the pain suffered by plaintiff. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. (2) The court did not err in refusing to allow plaintiff's doctor to testify that "plaintiff was in very bad shape," for the reason that the testimony was a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. Moreover, the witness was subsequently permitted to fully state the facts from which he drew the conclusion that plaintiff was "in bad shape," and this cured the error, if there were such. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. (3) The court did not err in refusing to permit plaintiff's doctor to testify that "her womb was still enlarged and she is suffering from all the effects of a chronic septicemic condition," or that "she is despondent and it seems impossible for her to do any work," for the reason that this alleged condition was in the nature of special damages and was not pleaded nor shown to be the necessary result of the injuries pleaded. Hall v. Coal & Coke Co., 260 Mo. 370. (4) The court did not err in refusing to allow Mrs. Burke to testify that, immediately after the collision, "plaintiff couldn't get up," for the reason that the testimony was a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. (5) Nor in refusing to allow Mrs. Burke to testify that, immediately after the collision, "witness asked plaintiff to stand up and she said she couldn't," for the reason that the testimony was hearsay. Plaintiff's alleged statement, "that she couldn't stand up," was not a spontaneous exclamation of pain, so as to be admissible as part of the res gestae, within the rule announced in Lindsay v. Kansas City, 195 Mo. 180, but was res inter alios acta and hence inadmissible. Moreover, the witness proceeded to testify that plaintiff was assisted to arise, from which the jury could draw the inference, instead of taking plaintiff's second-hand conclusion, that she was unable to get up unassisted, and hence the error, if any, was cured. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. (6) The court did not err in refusing to allow Mrs. Burke to answer the question, "Did she [plaintiff] need any assistance in getting up the step?" for the reason that the testimony would have been a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. Moreover, the witness was subsequently permitted to tell what she did toward giving plaintiff assistance, and this cured the error, if there were such. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. In addition to this, the ruling is not reviewable, for the reason that plaintiff made no tender of proof. Powell v. Railroad, 255 Mo. 446. (7) The court did not err in refusing to allow Mrs. Burke to testify "that plaintiff was always well," prior to the collision, for the reason that the testimony was the statement of a mere conclusion. (8) The court did not err in sustaining the objection to the question propounded, in crossexamination, to Dr. Pritchard, a witness for defendant, as to whether or not a shock can cause a miscarriage, for the reason that the petition pleads that plaintiff suffered a miscarriage as a result of certain injuries specifically pleaded, of which shock is not one. Hall v. Coal & Coke Co., 260 Mo. 370; Degonia v. Railroad, 224 Mo. 600; State ex rel. v. Ellison, 176 S.W. 13; State ex rel v. Ellison, 270 Mo. 651. (9) In view of the fact that the jury found, on conflicting...

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