Atkinson v. United Rys. Co.

• Citation: 228 S.W. 483,286 Mo. 634
• Decision Date: 07 March 1921
• Docket Number: No. 21669.,21669.
• Parties: ATKINSON v. UNITED RYS. CO.
• Court: Missouri Supreme Court

228 S.W. 483

286 Mo. 634

ATKINSON v. UNITED RYS. CO.

No. 21669.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Annie Atkinson against the United Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

T. E. Francis and G. T. Priest, both of St. Louis, for appellant.

W. E. Moser and Kelley & Starke, all of St. Louis, for respondent.

WHITE, C.

This is an action for personal injuries. The plaintiff, in the circuit court of St. Louis, recovered judgment in the sum of $12,000, from which the defendant appealed.

On the morning of October 3, 1918, the plaintiff, Annie Atkinson, who had employment with the Paris Cloak Company in the city of St. Louis, boarded an east-bound car on Cass avenue to go to her work. When the car on which she was riding arrived at Marcus avenue, which avenue runs north and south, a car on that street collided with the car on which she was riding. The Marcus avenue car drove into the Cass avenue car from the south with a violent crash, which did considerable damage to both cars. The plaintiff was thrown violently across the car from the seat on which she was riding. She received a number of bruises, contusions, and other injuries, which are fully described in the evidence. She suffered a great deal of pain, was incapacitated so that she could not work, and required medical treatment. The evidence was conflicting as to whether or not her injuries were permanent. The evidence for plaintiff tended to show that on account of the shock and the injuries which were received in the collision her hearing and her vision were impaired, and that she was suffering from traumatic neurosis.

It is a res ipsa loquitur case. The principal issue on the trial was as to the extent of the plaintiff's injuries. The errors assigned in this court, to which attention is chiefly directed, consist of remarks made by the attorney for plaintiff in his argument to the jury. It was further complained that under the circumstances the verdict was excessive, and that there was error in the instruction on the measure of damages. It is unnecessary to review the evidence at any length.

I. It is contended that the argument of Counsel for the plaintiff in his address to the jury was flagrantly improper, and requires a reversal. This argument and the colloquy interjected into it, with objections, are set out at some length in the abstract of the record. Several different aspects are presented:

(a) A number of statements made by Mr. Kelley, attorney for plaintiff, in the progress of his argument, when objected to, were held improper by the court. In each of such instances Mr. Kelley, so far as the record shows, refrained, and directed his argument to other lines. There is nothing to show that he transgressed any order of the court, and nothing more than often appears in cases where there is a heated argument, with interruption as it proceeds. We tie not find there was any error in that respect.

(b) Mr. Kelley proceeded to characterize the attitude of the defendants in the case as an attempt to "belittle" the plaintiff and "minimize" her injuries. Appellant's counsel objected, but the remarks of the plaintiff's attorney were allowed to stand. The only issue in the case over which there was any contest was as to the extent of the plaintiff's injuries, the plaintiff introducing testimony to show that she was greatly injured, and the defendant introducing testimony to show that she was net injured so much as she claimed. Perhaps the remarks of counsel were not as felicitous nor as apt as they might have been when he used the words "belittle" and "minimize," but there was no impropriety in the characterization of defendant's efforts. The remarks did not carry with them any suggestion of an unfair attempt to discredit witnesses for the defendant.

(c) Mr. Kelley then made this remark:

"Whenever you shatter her nerves, you unfit that woman to ever become the wife of a man; you unfit her to ever become the mother of children."

The court was asked to reprimand the plaintiff's attorney on the ground there was no evidence that the plaintiff by her injuries had been made unfit to become a wife or a mother. It will be noticed that the statement of the attorney was not that there was evidence directly indicating such result. He was reasoning from the facts before the jury. The evidence showed the plaintiff's nerves were shattered, and he was arguing, as a deduction from that fact, that the woman was made unfit for the office of motherhood. The most defendant could claim in that respect was that the argument was unsound; that the facts did not warrant the deduction; but, if this court should reverse every case where a lawyer made an unsound argument or drew an unwarranted conclusion from given premises, few cases would stand the test. There was no error in allowing the argument to stand.

(d) The argument as it proceeded took this turn:

"Mr. Kelley: They had this doctor in this case with the report — it is admitted in this record at Mr. Priest's own request, that Dr. M. A. Bliss, a neurologist of note in this city, to make an examination, at their cost and expense, of the plaintiff in this case. * * * Why didn't Dr. Bliss come on here, if there is nothing the matter with her nervous system, and tell you? Why didn't they put him on the stand? Why did they single out these men? Very funny! They put on Dr. Keller and Dr. Dames at the same time and left Dr. Bliss away from here and not let you hear him. Why? They knew he was a neurologist; they knew that he had seen this woman and that he had made tests and that he had drawn conclusions and arrived at conclusions. I will tell you, gentlemen, you can't draw but one conclusion from it, and that is that Dr. Bliss would tell you that this woman has traumatic neurosis, just like Dr. Hoge told you that she has, like Dr. Kinder told you she has, that the nurse said that she is suffering from now, and they don't want it; that's the reason they didn't do it."

On the application of the defendant the court had appointed three physicians, Dr. Dames, Dr. Keller, and Dr. Bliss, to examine the plaintiff as to the extent of her injuries. Dr. Dames was an aurist, Dr. Keller an oculist, and Dr. Bliss a neurologist. Those three specialists were to examine the three special results of which plaintiff complained — her defective vision, her defective hearing, and her neurotic condition. Drs. Dames and Keller were called by the defendant, and testified. Dr. Bliss was not called, and defendant asserts that the reference to that fact by Mr. Kelley was very prejudicial.

Where a party fails to call a witness under his control or with whose testimony he is particularly acquainted, and of which the other party is ignorant, it is not improper for counsel on the other side in the argument to comment on the failure to produce such witness. This is particularly true where a party fails to call his own physician. Evans v. Town of Trenton, 112 Mo. 390, loc. cit. 403, 20 S. W. 614; Willits v. C., B. & Q. R R. Co., 221 S....