Bragg v. City of Moberly

• Decision Date: 30 March 1885
• Parties: PEORIA BRAGG AND HUSBAND, Respondents, v. THE CITY OF MOBERLY, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 221

PEORIA BRAGG AND HUSBAND, Respondents,

v.THE CITY OF MOBERLY, Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 30, 1885.

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

The facts sufficiently appear in the opinion of the Court.

W. B. SANFORD for the appellant:

I. The court erred in admitting the testimony of plaintiff as to the prolapsus uteri; because it was only a matter of opinion on her part. It was a scientific question, on which the evidence of a medical or surgical expert only was admissible, and it was not shown that she was competent.--7 Mo. 530; 30 Mo. 160; Taylor on Evidence, vol. 2, sect. 1038; 1 Greenleaf on Evidence, sect. 440, 13th ed.; Sparr v. Welmon, 11 Mo. 230; Emerson v. Low Gas Light Co. 6 Allen (Mass.) 148; Folke v. Chadd, 3 Doug. 157; Best's Principles of Evidence, sect. 346; Carter v. Boehm, 1st Smith's Leading cases, 286.

II. The court erred in admitting the testimony of Dowdy, as to what she said of her sufferings or pain. This was hearsay.-- Chouteau v. Searcy, 8 Mo. 733; Fanny v. State, 6 Mo. 122; Wood v. Hicks, 36 Mo. 326; Langsdorf v. Field, 36 Mo. 440, and cases there cited.

III. The court erred in refusing a new trial after permitting incompetent testimony at the trial, because the evidence was a surprise and could not have been protected against by all diligence and precaution.-- Boyce'sTrustees v. Merney et al., 40 Mo. 106; Savorie v. Brashear, 46 Mo. 346; Hite v. Lenheart, 7 Mo. 24.

O. T. ROUSE, for the respondents.

I. When motion for new trial is based on points addressed to the discretion of the trial court, the appellate court will not disturb its decision unless it acted arbitrarily.-- McDonough v. Nicholson, 46 Mo. 35; Eidemiller v. Kump, 61 Mo. 340; Griffin v. Veil, 56 Mo. 310; Judah v. Hogan, 67 Mo. 253. The common-law rule for new trial for surprise has been abrogated by section 3704, Revised Statutes. By this section the the question is addressed to the discretion of the trial court. The surprise urged is not such as the statute mentions.

II. No objection was made as to the competency of Mrs. Bragg's evidence at the trial. No objections are noted. Appellant failing to complain at the proper time, cannot now complain.-- Waddell v. Williams, 50 Mo. 219; Gambs v. Cor. Ins. Co., 50 Mo. 49; McDonough v. Nichols & Co., 46 Mo. 35; Wilson v. N. Mo. R. R. Co., 46 Mo. 36. If the trial suits the litigants, they cannot afterwards complain.-- Stone v. Lewis, 11 Mo. 439. The witness was not incompetent.

III. It was the duty of the city to keep the sidewalks in a reasonably safe condition to walk on, and it neglected its duty and was liable.-- Blake v. St. Louis, 64 Mo. 567; Brown v. Richmond, 75 Mo. 437; Russell v. Columbia, 74 Mo. 480; Oliver v. City of Kansas, 69 Mo. 79; Craig v. Sedalia, 63 Mo. 417; 15 Michigan 307.

Opinion by PHILLIPS, P. J.

This is an action to recover damages from the defendant--a municipal corporation--for injuries suffered by plaintiff, Peoria Bragg, in 1881. The plaintiffs are husband and wife. The injury was occasioned by a defective sidewalk on one of the streets of the city. The plaintiff seems to have been badly hurt, and on trial, had in Audrain circuit court, whither the case had been removed on change of venue from the Moberly common pleas court, the jury awarded the plaintiff damages in the sum of twenty-five hundred dollars, of which sum the plaintiffs remitted twelve hundred and fifty dollars.

The defendant seeks a reversal of said judgment on two grounds: First, because of the admission of incompetent evidence on the trial; and, second, because the court erred in refusing a new trial, because the defendant was surprised on the trial by the introduction of unexpected evidence by the plaintiff, which testimony, it is alleged, was false, and secured the amount of the verdict.

1. The plaintiff, Mrs. Bragg, in testifying to the character of her injuries, among other things, stated: “I had always been healthy before I got this fall. At the time I fell I was a little over nineteen years old. Before the fall I did my work. Since the fall I cannot do my washing, or lift anything of much weight. I could hardly work for a long time after the fall, and cannot ride horseback now, because of pain in one hip, of which I have suffered ever since the fall. I have constantly suffered with pain in the lower part of my back, bowels, and hips. Since the fall I have falling of the womb, and am now wearing a support for the womb, under the advice of my physician, Dr. Holt. He has been treating me since the fall. I have been afflicted as I now am ever since the fall.” She was a mother for three months when she was injured.

The defendant objected to so much of the above statement of the witness as referred to the prolapsus uteri. The bill of exceptions, as it appears in the transcript before me, recites that, “the defendant objected to the statement of the witness, as to condition of her womb, because she was shown to be competent to testify on the subject.” If we should hold the defendant to its record, which it brought here, we should hold that the objection made at the trial, which is the only objection it can be heard to make on appeal, was felo de se: for the objection is that plaintiff was competent to testify to this very matter.

But giving defendant the benefit of regarding this as a clerical error, we do not see what legal objection there is to its competency. It cannot be maintained that the physical fact of the falling of the womb is so much a scientific question, as not to permit the subject to speak of it except she be an expert. The witness merely stated the fact that since her injury she had a falling of the womb. It certainly will not be seriously asserted that a woman nineteen years old and a mother, does not know what her womb is, and that she is not able to tell, without reading medical books and studying physiology, whether her womb had fallen down, or whether it did so prior to a given date. If she had testified that her monthly period was then at hand, could it be maintained that it was the utterance of an opinion, which an expert in the study of catamenia alone could speak of? The fact testified to by Mrs. Bragg was one within the common experience of her sex, to which she might testify as to any fact within the range of her sense of sight and touch.

2. A witness named Dowdy, the father of Mrs. Bragg, testified that his daughter had always been fond of horseback riding, and was an active rider, but that since her injury, when on a visit to his home, she rode a half mile, and on alighting complained that her hip hurt her so she could not ride. She got down and walked, “and she complained considerably of pain in her hip, the lower part of her back, and in her abdomen.”

This is objected to by defendant, on the ground that it is hearsay testimony. The objection is not well taken. It is the well settled rule of evidence that whenever the bodily or mental feelings of a party are material to be established, the exclamations and expressions by the sufferer of such feelings at the time of the suffering, is original evidence. Whether the utterance be feigned or not at the time of the exclamation or statement, is a question for a jury. (1. Greenl. Ev., sect. 102.) “The representation by a sick person of the nature, symptoms...