Aronovitz v. Arky

• Decision Date: 02 March 1920
• Docket Number: No. 20122.,20122.
• Citation: 219 S.W. 620
• Parties: ARONOVITZ v. ARKY.
• Court: Missouri Supreme Court

219 S.W. 620

ARONOVITZ v. ARKY.

No. 20122.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Toni Aronovitz against Sam Arky, doing business as the Sam Arky Commission Company. From order sustaining plaintiff's motion for new trial after verdict for defendant, defendant appeals. Reversed and remanded, with directions to set aside the order, reinstate the verdict for defendant, and enter judgment thereon.

Jourdan, Rassieur & Pierce, of St. Louis, for appellant.

Karl M. Vetsburg, of St. Louis, for respondent.

GOODE, J.

In the early part of 1915, and for perhaps a year before, Sam Arky, the defendant, conducted the business of selling live and dressed poultry, eggs, and other food products, at 2325 Franklin avenue, in the city of St. Louis. The building was on the north side of the street, facing south, was 30 or 35 feet wide, and extended back 100 feet. In the rear was a yard, paved with concrete, where poultry of different kinds were killed, dressed, and brought into the storeroom in front to sell to the trade. The floor of the storeroom at the rear was below the level of the yard back of it; the amount of the depression being differently estimated by the witnesses, but we conclude it was about 18 or 20 inches. To enable employés to pass to and fro between the storeroom and the yard, a board bridge, or runway, as it is termed in the record, was laid; one end being to the rear of the doorway and on the edge of the yard, and extending downward on an incline to the floor of the storeroom. This inclined bridge was several feet wide and about 12 feet long, and sometimes became slippery from the dropping of blood, feathers, and other offal onto it from the poultry carried over it. A barrel of sawdust was kept at hand to sprinkle the boards with to prevent them from becoming slippery. Willmos Aronovitz was employed by defendant as a poultry dresser and salesman, and, although their names were different, the two men were brothers.

Willmos Aronovitz came to this country a year or more before the time he suffered the injury which is the subject-matter of the present action, but the defendant and two other brothers, who lived in Oklahoma, had come earlier and taken the name of Arky. On February 13, 1915, Wilimos Aronovitz, while carrying some poultry from the back yard into the storeroom, slipped on the runway or bridge and fell, striking his head. One of the witnesses said he groaned, but arose immediately, went to the hydrant, washed his face, and left the store, complaining some of his head hurting him. He never returned to work, but took sick after, or was sick when he fell, was treated in St. Louis for grippe, and a few days afterwards went to Cushing, Okl., with another brother, who happened to be passing through St. Louis. He arrived in Cushing about the 24th or 25th of February, quite ill. Herman Arky, the brother with whom he stayed, called a physician, and shortly afterwards a swelling developed on the left jaw in front of the ear, which the physician at first thought might be mumps, but the swelling spread over the jaw to the eye, which became inflamed, and it turned out the patient had erysipelas. Meanwhile an abscess developed behind his eye, causing it to protrude very much, and thereupon an eye specialist, and later a surgeon, were called; the eyelid was opened and a large quantity of pus was discharged; in fact the patient developed septicæmia or blood poisoning, which spread through his entire body and caused his death on March 12th, a month after his fall.

This action was filed by plaintiff, as the widow of Willmos Aronovitz, to recover damages for the death of her husband, alleged to be due to the negligence of defendant. The specific negligence counted on was that the incline or bridge was dangerous if nothing was used to prevent any one from slipping on it, the surface having worn smooth; that on the date of the fall of plaintiff's husband the incline was wet, slimy, and slippery from poultry being dragged over it; that defendant had failed to cover the surface with sawdust or other material, so as to make it safe for use, although its dangerous condition was known to defendant, or would have been by the use of ordinary care; further, that defendant was negligent in the respects aforesaid and in failing to provide a safe and suitable place for Willmos Aronovitz to work. The answer was a general denial. Most of the evidence on both sides was directed to the issue of whether the death of deceased resulted from a septicæmie infection caused by the fall on the incline, or from such an infection brought about by erysipelas. Physicians who testified as experts for plaintiff traced the death of her husband to the fall in this manner, although there was no abrasion of the skin on the back of his head where it struck the bridge. The bleeding at the nose indicated, so some experts said, a rupture of the tissues inside the nostrils, or perhaps a fracture at the base of the skull, through which break in the continuity of his tissues or skull the germ entered the patient's blood and induced blood poisoning, and possibly meningitis. On the contrary, physicians who testified for defendant, in answer to hypothetical questions, and some who had treated deceased, were of the opinion that the fall had nothing to do with his death, which was due solely to erysipelas, or to blood poisoning induced by erysipelas. The jury returned a verdict for defendant, but a motion for new trial filed by plaintiff was sustained, for the reason that the court thought error had been committed in giving instruction 15 at the instance of defendant. Said instruction was of this tenor: That if the jury found from the evidence the deceased was not using ordinary care at the time and place of his injury, and the omission of such care contributed to cause the injury, they should find the issues for defendant; further proceeding to define what was meant by the term "ordinary care."

The defense of contributory negligence was not set up in the answer, and to submit that defense to the jury would have been error, had not plaintiff asked its submission in an instruction granted at her instance, which attempted to embrace all the issues necessary to be found to authorize a verdict for her. Among other findings required by the instruction for that result was this one: "And that at the time of his said fall said Willmos Aronovitz was using ordinary care for his own safety." Having herself asked that the issue of whether the deceased was in the exercise of ordinary care at the time he fell be left to the jury, plaintiff had no right to complain of the court for granting a counterpart of the instruction at the request of the defendant, and one no more general in its terms as regards the point in hand than was the one asked by plaintiff. White v. United Rys., 250 Mo. 476, 157 S. W. 593. It could not prejudice the plaintiff's case for the court to leave to the jury the issue of lack of ordinary care on the part of the deceased in the instruction said to be erroneous, when the jury had already been required to find he was exercising that measure of care in the instruction plaintiff requested. Numerous precedents in this state, some of which we cite, are opposed to the reversal of a judgment for such an assignment, and the rule, which is sound in principle, prevails generally. 2 Ency. Pl. & Pr. 519 et seq., and citations in notes; Thorpe v. Railroad, 89 Mo. 650, 2 S. W. 3, 58 Am. Rep. 120; Christian v. Insurance Co., 143 Mo. 460, 45 S. W. 268; Reilly v. Railroad, 94 Mo. 611, 7 S. W. 407; Holmes v. Braidwood, 82 Mo. 616; McGonigle v. Daugherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 388; Davis v. Brown, 67 Mo. 315.

Plaintiff contends the court erred in permitting defendant's counsel to ask a hypothetical question which was incorrect in some particulars of four medical experts. This question is long, and much the larger portion of it is not asserted to be improper and it need not be set out in full to make the point clear. The deceased, Willmos Aronovitz, was treated for grippe, on February 12th, by Dr. Fiegenbaum, in St. Louis, before he went to Oklahoma with his brother Her man Arky. Said physician also prescribed a tonic for the debilitated state in which he found deceased. After deceased reached Cushing, Okl., Dr. Jacoby, of that city, was called to see him, diagnosed his ailment as grippe, and prescribed anti-pyretics. Said physician also noticed a swelling in front of the patient's ear, for which he prescribed an ointment; the eye became inflamed, and at first the doctor thought this might be due to the ointment getting into the eye Later a diagnosis of erysipelas was made by Dr. Jacoby. In framing the hypothetica question, defendant's counsel, instead of assuming the deceased had grippe in St. Louis was debilitated there, had grippe upon arriving at Cushing, later had erysipelas, and hi; eyeball became inflamed, framed the question by assuming that Dr. Fiegenbaum, in St. Louis, had diagnosed his ailment as grippe that said doctor had prescribed a tonic for debility; that Dr. Jacoby, of Cushing, had diagnosed his ailment as grippe and later as erysipelas; and that at first Dr. Jacoby deemed the condition of his eyeball due to at ointment running into it. The general rule is that an expert opinion cannot be based on a prior expert opinion; and the right way to hypothesize the above facts was not to assume deceased's condition had been diagnosed by certain physicians as grippe, erysipelas, etc., but to frame the question on the assumption that he actually had sufferer from those ailments, as in fact was testifies by the physicians, and ask the conclusion o the experts to whom it was addressed as to what, in view of the facts assumed to be true, they thought was the cause of the death of the deceased. Kearner v. Tanner Co., 37 R. I. 203, 76 Atl. 833, 29 L. R....