Carlson v. Kansas City, Clay County & St. Joseph Auto T. Co.

• Decision Date: 03 May 1926
• Docket Number: No. 15650.,15650.
• Citation: 282 S.W. 1037
• Parties: CARLSON v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH AUTO TRANSIT CO.
• Court: Missouri Court of Appeals

282 S.W. 1037

CARLSON v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH AUTO TRANSIT CO.

No. 15650.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

Action by Ellen Carlson against the Kansas City, Clay County & St. Joseph Auto Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawson & Hale and James S. Simrall, all of Liberty, for appellant.

Jacobs & Henderson, of Kansas City, and H. L. Moore, of Excelsior Springs, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,500, and defendant has appealed.

The facts show that between 7 and 8 p. m. of September 12, 1925, plaintiff was riding as a passenger in one of defendant's busses being operated from Excelsior Springs to Kansas City, Mo.; that, when the bus neared Liberty, the driver attempted to make a turn to the left at a curve in the road, whereupon the bus slipped or skidded sidewise off of the paved portion of the road into the ditch and against the bank thereof. Plaintiff was thrown from her seat through a window, resulting in her being rendered unconscious and in receiving a number of severe cuts. Plaintiff was taken to the office of Dr. Rothwell at Liberty, and there her wounds were sewed up and treated. The main cuts and bruises consisted of an incision over the right breast "just about the length of the breast, and angled downward and outward about three or four inches long," and in the vicinity of the pectoralis major muscle; a cut on her right arm beginning near the elbow and back of the same, extending for four or five inches above it; a bruise and irregular cut on the right side of her forehead; and a cut on the inside of her left leg and bruises midway between the knee and ankle. In the cut near her breast there was lodged a triangular piece of glass which was extracted by a friend who accompanied her. Plaintiff testified that "her suit and everything" were torn "to pieces," and when she arrived at Liberty she "was soaked and filled with blood all the way through."

Defendant insists that the court erred in permitting plaintiff upon two occasions to exhibit to the jury the clothing that she wore at the time she received the injuries. It is claimed that this exhibition was for the purpose of prejudicing the jury; that there could have been no proper purpose in the exhibition, for the reason that plaintiff had testified that she had bled freely, and no one had denied her testimony as to the fact of bleeding or the location of the wounds. It is true that plaintiff had described the extent of her bleeding, but it is not true that at the first time the clothing was produced before the jury there was any intimation on the part of the defendant that it was admitting anything as to the wounds or their bleeding, or, in fact, that she had been injured at all. On the contrary, while all of the injuries testified to by plaintiff at the trial, including the profuse bleeding, were pleaded in the petition, the answer was a general denial, and nothing had appeared at the time of the first exhibition indicating that defendant was not denying everything, including the occurrence itself. In the objection made to their exhibition to the jury, it was not intimated that defendant was not standing on everything implied by the filing of the general denial. There were no admissions whatever made by the defendant at the time of the occurrence of which complaint is made.

The clothing bore the cuts made by the triangular piece of glass, and the size of the glass is not disclosed in the record. The glass must have penetrated through the clothing. Aside from the fact that the clothing showed that plaintiff bled profusely, the rent in the clothing tended to show the size of the glass, and, with the thickness of the clothing, was some evidence as to the force of the penetration. Of course, under the circumstances, there is no question but that the court did not abuse its discretion in permitting the clothing to be exhibited to the jury even though plaintiff had described the manner in which she bled, and notwithstanding it may have had a tendency to inflame and prejudice the jury. Keen v. R. Co., 129 Mo. App. 301, 108 S. W. 1125; Senn v. Southern Ry. Co., 108 Mo. 142, 18 S. W. 1007; State v. Long, 209 Mo. 366, 108 S. W. 35; State v. Duffy, 124 Mo. 1, 27 S. W. 358; State v. Murphy, 118 Mo. 7, 14, 25 S. W. 95; State v. Moxley, 102 Mo. 374, 389, 14 S. W. 969, 15 S. W. 556; Holzemer v. Met. St. Ry. Co., 261 Mo. 379, 169 S. W. 102; State v. Wieners, 66 Mo. 13, 29, 30; 22 C. J. 193.

When the clothing was produced before the jury the second time, it was not directly exhibited to the jury, but was produced in connection with the cross-examination of one of defendant's physicians. This doctor testified that he was called by Dr. Rothwell, and attended plaintiff in the latter's office shortly after she was injured as well as at the hospital, where she remained for about a week. The wounds were sewed up when this physician first saw plaintiff, and he would not testify as to how deep they were, but, notwithstanding this, he stated that plaintiff's injuries consisted merely of skin wounds, while plaintiff's evidence tended to show that she sustained much more serious injuries, as will hereinafter be shown. He testified that all skin wounds bled freely. The clothing, over defendant's objection, was then exhibited to the doctor, and he was asked:

"Q. Was this woman—you say this injury she had, the wounds, were of such slight character as she bled as appears on this clothing here? A. I didn't say anything about it.

"Q. I believe you said even slight wounds bleed—slight wounds like that? A. I said slight skin wounds bleed.

"Q. And would you say slight wounds bleed like that, Doctor? A. A little red blood on a white surface shows up mighty plain.

"Q. Let's see, Doctor, about this specific clothing? A. I don't know how much blood is on there—I can see some blood."

He testified that the amount of blood shown on the clothing could come from a wound of the skin. The jury had already seen the clothing, and we fail to see how defendant could complain of the use of it in the cross-examination of its physician, at least, in view of the fact that it appears to have been a legitimate cross-examination, as it does not appear that it was merely produced the second time in order to prejudice the minds of the jury. As to the matter of exhibiting to the jury evidence of this kind, a well-known authority states:

"The autoptic proference to the jury of the weapons or tools of a crime, or of the clothing or the mutilated members of the victim of the crime, has often been objected to on ground of undue prejudice. Post, § 1863. The nature of this supposed prejudice is illustrated in the following passages: * * *

"The objection thus indicated seems to be twofold: First, there is a natural tendency to infer from the mere production of any material object, and without further evidence, the truth of all that is predicated of it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.

"The objection in its first phase may be at least partly overcome by requiring the object to be properly authenticated, before or after production; and this requirement is constantly enforced by the courts. Post, § 2130.

"The objection in its second phase cannot be entirely overcome, even by express instructions from the court; but it is to be doubted whether the necessity of thus demonstrating the method and results of the crime should give way to this possibility of undue prejudice. No doubt such an effect may occasionally and in an extreme case be produced, and no doubt the trial court has a discretion to prevent the abuse of the process. But, in the vast majority of instances where such objection is made, it is frivolous, and there is no ground for apprehension. Accordingly, such objections have almost invariably been repudiated by the courts."

2 Wigmore on Evidence (2d Ed.) § 1157.

A large discretion in matters of this kind is left to the trial court. The appellate court is at a disadvantage in reviewing such matters because the information gleaned by the inspection of the garments and the like cannot easily be reported for the consideration of an appellate court. There are cases holding that the discretion vested in the trial court in a matter of this kind will not be reviewed. While there are some cases holding that an unreasonable exercise of such a discretion constitutes reversible error, some of which cases are cited by the defendant, the usual practice of appellate courts is to decline such a review. 22 C. J. 767. We have examined the cases cited by the defendant, and, while not intending to hold that they are in harmony with the decisions in this state, we find the facts involved in them are entirely different from the situation in the case at bar. Here the allowing of the original exhibition of the clothing to the jury was not an abuse of the discretion of the trial court, even admitting that this discretion is reviewable, as will readily be seen by an examination of the Missouri cases we have cited. The second production of the clothing, although used at a time after defendant had introduced evidence tending to show that plaintiff had been injured and had received cuts sufficient to cause profuse bleeding, was in connection with a proper cross-examination of one of defendant's witnesses. The extent of the cuts and the seriousness of plaintiff's injuries were never admitted. On the other hand, defendant, as will be hereinafter shown, severely criticizes plaintiff's medical testimony as to the seriousness of the injuries, and insists that the verdict is excessive.

It is claimed that the court erred in allowing plaintiff's physician,...