Adolf v. Brown
| Decision Date | 18 September 1923 |
| Citation | 255 S.W. 947,213 Mo.App. 406 |
| Parties | GEORGE ADOLF, Respondent, v. GEORGE M. BROWN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Hamilton, Judge.
AFFIRMED.
Judgment affirmed.
Kelley Starke & Moser for appellant.
(1) The court erred in admitting incompetent, irrelevant, immaterial and hearsay evidence, which was highly prejudicial to defendant, given by plaintiff's witness Dr. M. W. Hoge over the objection of defendant. Mabill v. Boatmen's Bank, 288 Mo. 489; Gibler v. Railroad, 129 Mo.App. 93; Holloway v. Kansas City, 184 Mo. 19. (2) The court erred in overruling each and every one of defendant's motions to strike out incompetent, irrelevant, immaterial and hearsay evidence, which was highly prejudicial to defendant, given by plaintiff's witness Dr. M. W. Hoge, concerning statements alleged to have been made to said witness by plaintiff relating to past events, and symptoms, complaints and ailments which plaintiff claimed to have suffered from prior to time of said witness' first examination of plaintiff, and of which the witness had no personal knowledge, or means of knowledge. Magill v. Boatmen's Bank, 288 Mo. 489. (3) The court erred in permitting plaintiff's witness Dr. M. W. Hoge to give an expert opinion concerning plaintiff's condition based upon statements alleged to have been made to said witness by plaintiff relating to past events, and symptoms, complaints and ailments which plaintiff claimed to have suffered prior to the time of said witness' first examination of plaintiff, of which the witness had no personal knowledge, or means of knowledge. Magill v. Boatmen's Bank, 288 Mo. 489. (4) The court erred in giving and reading to the jury Instructions Nos. 1 and 3, given and read to the jury at the instance and request of the plaintiff, because: 1. The amended petition upon which this case was tried alleges a violation of section 1301, Revised Code of St. Louis 1914, as a ground of negligence, but nowhere alleges that the view of plaintiff and defendant's chauffeur of each other was in any way obstructed, but on the contrary alleges specifically that plaintiff was in plain view of defendant's chauffeur. Hence, the alleged violation of said section 1301 could not be made a basis of recovery. Section 1301, Revised Code of St. Louis 1914; Pannell et al. v. Allen, 160 Mo.App. 714. 2. The terms and provisions of section 1301 of the Revised Code of St. Louis 1914, only prohibit the running of automobiles at a rate of speed not greater than six miles per hour "when turning a corner of intersecting streets, avenues, boulevards or public places, or when traversing a curve or turn in the street, avenue, boulevard or public place where the view is obstructed," and said ordinance was not intended to, and does not limit the speed of automobiles when making a turn in the street, etc., nor where, as the evidence in this case shows, both the plaintiff's view of defendant's chauffeur and defendant's chauffeur's view of the plaintiff was unobstructed. Sec. 1301, Revised Code of St. Louis 1914; Pannell et al. v. Allen, 160 Mo.App. 714. 3. The evidence in this case conclusively shows that plaintiff does not come within the class of persons for whose protection and benefit section 1301, Revised Code of St. Louis 1914, was enacted. Mansfield v. Wagner Electric Mfg. Co., 242 S.W. 400. 4. Said instruction nowhere required the jury to find that the view of plaintiff or defendant's chauffeur of each other was obstructed in any way, and is therefore broader than the provisions of said ordinance. Sec. 1301, Revised Code of St. Louis 1914. 5. Said instruction nowhere required the jury to find that the view of plaintiff or defendant's chauffeur of each other was obstructed in any way, but tells the jury that the mere driving of the automobile in question when turning from Grand avenue into the alley mentioned in the evidence at a rate of speed greater than six miles per hour was negligence as a matter of law. Pannell et al. v. Allen, 160 Mo.App. 714. 6. There is no evidence in this record establishing a causal connection between the alleged violation of this ordinance and plaintiff's alleged injury. Battles v. Railways Co., 178 Mo.App. 596. 7. There is no evidence in this record that the alleged violation of said ordinance was the proximate cause of plaintiff's alleged injury, or that plaintiff's alleged injury would not have occurred even though said automobile had been running at a rate of speed not to exceed six miles per hour. Battles v. Railways Co., 178 Mo.App. 596. (5) The court erred in refusing to give Instruction No. 22, requested by defendant, withdrawing from the consideration of the jury the allegation of negligence, "That the driver of defendant, while turning the corner of Grand Avenue mentioned in the evidence, and the public alley mentioned in evidence, negligently and in violation of the ordinances of the city of St. Louis, ran the automobile mentioned in evidence at a rate of speed greater than six miles per hour. Pannell et al. v. Allen, 160 Mo.App. 714; Russell v. Barcroft, 1 Mo. 473 (side page 663); Higgins v. Railway Co., 197 Mo. 300; Roseman v. United Rys. Co., 197 Mo.App. 337; Allen v. Lumber Co., 171 Mo.App. 482.
Leonard, Sibley & McRoberts for respondent.
(1) (a) The testimony of Dr. Hoge, "Yes, he complained of headaches," etc., given in response to a question to which objection was made, was proper. The testimony was of symptoms and complaints present when the doctor made the examinations. A doctor "may testify about present symptoms and repeat the statements of the patient to him relating to such symptoms." Amick v. K. C., 187 S.W. 582, 584; De Courcy v. Const. Co., 140 Mo.App 169; Poumeoule v. Post. T. Co., 167 Mo.App. 533; Brady v. Traction Co., 140 Mo.App. 421. (b) Undoubtedly, at least part of the answer of the doctor was the giving of present symptoms and complaints, and was entirely proper. Therefore, the motion to strike out all the answer was not well taken, even though part of the answer be thought improper if standing alone. McMahon v. U. Rys., 203 S.W. 500; Dudley v. Railroad, 167 Mo.App. 647; Coombes v. Knowlton, 193 Mo.App. 554 (c) The testimony of the doctor was cumulative, undisputed and harmless, at worst. Its admission was not reversible error, even should the court take the view of the testimony advanced by defendant. When incompetent or other testimony is admitted on a fact which is proved otherwise by competent testimony, the error is immaterial and is not ground for reversal. Sec. 1276 and 1513, R. S. 1919; Smiley v. St. L. & Han. Ry., 160 Mo. 629; Scharff v. McGaugh, 205 Mo. 344; Porterfield v. Am. S. Co., 201 Mo.App. 8; Gibbs v. Haughowout, 207 Mo. 384; McMahon v. U. Rys. Co., 203 S.W. 500; Fellhauer v. Q. O. & K. C. Ry., 191 Mo.App. 137; Lindsay v. K. C., 195 Mo. 166; Heinbach v. Heinbach, 274 Mo. 301; Julian v. Calkins, 85 Mo. 202; Tuggle v. St. L. K. C. & N. Ry. Co., 62 Mo. 425; O'Keefe v. U. Rys., 124 Mo.App. 613; Lane v. Lane, 113 Mo. 504; Foster v. Railway, 115 Mo. 182; Fuller v. Robinson, 230 Mo. 22; Adams v. Q. O. & K. C. Ry., 229 S.W. 790. (2) (a) The testimony given by Dr. Hoge was mostly, if not entirely, of present symptoms and complaints, and came within the rules laid down by our courts. See cases cited above, point 1 (a). (b) At least part of practically every answer, if not every answer, now assailed, gave present symptoms and complaints, and the respective motions to strike out the whole of each and every answer were therefore too broad and should have been overruled. See cases cited above, point 1 (b). (c) All the testimony of Dr. Hoge was merely cumulative, undisputed and harmless. Its admission was not reversible eror. See cases cited above, point 1 (c). (d) Defendant made no objection to these answers. He waited until the answer was given and, then finding it unfavorable, moved to strike it out. This was too late, despite the remarks of the trial court. Foster v. Mo. Pac. Ry., 115 Mo. 165; Hickman v. Green, 123 Mo. 165; Budde v. Lamp Co., 193 Mo.App. 151; Burdoin v. Town of Trenton, 116 Mo. 358. (e) All the testimony of Dr. Hoge here assailed was part of the res gestae and was admissible. 22 Corpus Juris, pp. 268-69; Coghill v. Q. O. & K. C. Ry. Co., 206 S.W. 912. (3) (a) The opinion formed by Dr. Hoge was not based on history of past events, but on his personal examinations and findings and present symptoms expressed to him. (b) No objection was made; no motion of any kind was made by defendant to strike out testimony which defendant elicited in the cross-examination of Dr. Hoge, and which testimony or opinion defendant claims was based on hearsay evidence. (4) (a) Plaintiff's instructions Nos. 1 and 3 were correct. Defendant misinterprets section 1301, Revised Code St. Louis, 1914. The driver of an automobile must slow down to six miles an hour when turning a corner of intersecting streets, or a street and alley, whether the driver's view is obstructed or not. (b) The question of the construction of section 1301, Revised Code of St. Louis, is academic in this case. Plaintiff's instruction No. 1 on the merits, is in conjunctive form and required the jury to find, before it could return a verdict for plaintiff, not only that defendant's chauffeur ran the auto at a rate of speed in excess of six miles an hour, but that he also failed to give any signal or alarm while running same at the place in question. To predicate error on this instruction defendant would have to show that both theories left to the jury in the conjunctive form were erroneous. Chambers v. Hines, 208 Mo.App. 222; Jackson v. Railroad, 171 Mo.App. 430; Gibler v. Railroad, 129 Mo.App. 93; Troutman v. E. St. L. C. O. Co., 224 S.W. 1014;...
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