Crapson v. United Chatauqua Co., 16850.

• Decision Date: 05 May 1930
• Docket Number: No. 16850.,16850.
• Citation: 27 S.W.2d 722
• Parties: CRAPSON v. UNITED CHATAUQUA CO.
• Court: Missouri Court of Appeals

27 S.W.2d 722

CRAPSON v. UNITED CHATAUQUA CO.

No. 16850.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Appeal from Circuit Court, Adair County; Paul Higbee, Judge.

"Not to be officially reported."

Action by Fern Crapson against the United Chatauqua Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

J. M. Campbell and M. D. Campbell, both of Kirksville, for appellant.

Mills & Jayne and Philip J. Fowler, all of Kirksville, for respondent.

ARNOLD, J.

This case is here on appeal from a judgment for plaintiff in the sum of $2,000 damages awarded for personal injuries.

The facts of record are that on July 31, 1929, plaintiff, with her small daughter by her side, was riding in the rear seat of an automobile driven by her husband eastward on highway No. 4, in Scotland county, Mo. At a point about one mile west of the town of Memphis in said county, and as a part of said highway, there is a narrow bridge about 60 to 80 feet in length, having a floor and railings of wood. After the automobile in which plaintiff was riding had entered upon the bridge, a large truck, heavily loaded, operated by one of defendant's agents, and accompanied by defendant's manager, entered upon said bridge, going westward at a high rate of speed. The truck being wide and the bridge narrow, plaintiff's husband drew his car well to the south side of the bridge near the railing and stopped. The truck did not stop, and in passing jammed the doors of said automobile and fender and injured the body of said car, knocking it against the railing. As a result of the impact, plaintiff was thrown violently against the back of the front seat and against the robe rail thereto attached, receiving injuries to her side in the region of the heart, bruises on her arms, knees, and ribs, of which complaint is made.

The petition charges facts as above stated, and that defendant, a corporation, organized and existing under the laws of the state of Iowa, is a nonresident of the state of Missouri; that the automobile in which plaintiff was riding was being driven in a careful and prudent manner and upon the extreme right-hand side of the said highway; that said truck of defendant was negligently and carelessly run, by defendant's agent and servant, into and against the automobile in which plaintiff was riding, and as a result of said collision plaintiff was injured; that her knee and side were bruised and made sore and tender; that she was confined to her bed; that her nervous system was severely and permanently shocked and injured, causing her to be unable to sleep at night; that said injuries have caused her great pain and agony of both mind and body; that her general health has been, and will be, greatly impaired, and she will be forced to expend large sums of money for medical care, aid, and attention. Judgment is asked in the sum of $2,900.

The answer admits defendant's corporate status as alleged in the petition, followed by a general denial. The cause was tried to a jury, resulting in a verdict and judgment as above indicated. A timely motion for a new trial was overruled, and defendant has appealed. The testimony tends to support the allegations of the petition; that plaintiff is the wife of George Crapson, who runs a grocery store and restaurant in the town of Glenwood, Schuyler county, Mo.; that, prior to the injury alleged to have been sustained, she aided her husband in and about the store and restaurant, took care of her household duties in addition to the care of their child, all by the aid of a servant; that since the said alleged injury plaintiff has been unable to attend properly to these duties; that she is nervous, and for that reason is unable to secure the proper amount of sleep; that within a few days after the alleged injury a physician examined her and prescribed for her; that said physician attended her but once, and at that time he prescribed medicines which she has since been taking; also that she has been taking patent medicines. Plaintiff was not treated by a doctor except on the occasion referred to. This doctor testified at the trial that on examination he found plaintiff had an injured and bruised arm and soreness on the left side from the thigh up, the skin discolored; she was in a nervous condition and suffering a good deal of pain. He stated this examination occurred on August 6, 1929.

The record discloses this action was filed on August 3, 1929. Dr. J. H. Keller, who made the examination above referred to, again examined plaintiff on November 8, 1929, the day of the trial herein, and of this examination he testified the discoloration observed on the previous examination had disappeared; that there was tenderness over the ribs; that she was still somewhat nervous, but that he expected her to recover in a few months. The doctor said he was under the impression he had first examined plaintiff the day following the injury. Defendant's counsel then presented a paper signed by the witness in which it was stated his first examination of plaintiff was on August 6, 1929. He then said that was the correct date of the examination, though he had no record of it.

Thelma Lasley, testifying in plaintiff's behalf, stated she had worked for plaintiff's husband off and on for four years; that she was acquainted with plaintiff before the alleged accident, and has been at Crapson's since then; that prior to the accident plaintiff did the work incident to the cooking, waiting on the table and care of the residence, which is separate from the restaurant; that since the alleged injury she has done none of this work; that before that time plaintiff was able to do as much work as any one; that witness was there with plaintiff all the time except nights; that she saw plaintiff's injured side after the injury; that there was a big knot, or lump almost as large as a fist, below her ribs on her injured side; it was "all black" and turned "purplish green"; that she had a big black and blue spot on her leg and on her arm and the knot on her left side which lasted three to five weeks; witness took care of plaintiff during that time and since; that there has been no additional help employed at the house or in the restaurant since July 31, 1929; that witness had been doing the work.

Mrs. Clara Martin, a neighbor, testified she had known plaintiff about fifteen years; knew of the work plaintiff did in the restaurant prior to her alleged injury; witness had worked with plaintiff, but not for the last four years; had been at plaintiff's house frequently, almost daily, since the accident; has not seen plaintiff work since the accident "to amount to anything, just for the baby or the little child mostly"; most of the time she is sitting in a big rocking-chair, sometimes in bed; she seems to be nervous and jumps; witness usually goes "right to the door, don't knock, and if she doesn't see me, she will jump and holler." Witness had noticed plaintiff has lost flesh and is nervous.

Plaintiff's husband corroborated the other witnesses in their testimony as to the nervous condition of his wife. He further testified that, when Dr. Keller was there, he left three kinds of medicines; that he tried to get more of the medicine, and Dr. Keller said for her to go ahead and take medicine he had left for her; that since then he had given her patent medicines secured from the drug store; that plaintiff has not done much of any kind of work since the accident. She oversees it and tells the girls to do it; before the accident plaintiff helped with the washing, and in general did all the housework and some work outside the house; made a garden, mowed the lawn, worked in the restaurant, made pies, and scrubbed the floor.

At the beginning of the trial, and in his statement to the jury, defendant's counsel admitted liability, and that the only question for the jury was whether there was any damage, and, if so, how much. There are several assignments of error, to wit: (1) That the court erred in admitting illegal, incompetent, and prejudicial evidence; (2) in overruling defendant's motions to discharge the jury; (3) that the verdict is excessive; (4) the verdict is the result of passion and prejudice due to improper conduct of plaintiff's counsel; (5) plaintiff's counsel was guilty of improper and prejudicial conduct in persistently attempting to introduce illegal, incompetent, and prejudicial evidence for the purpose of creating prejudice in the minds of the jury against defendant; (6) because plaintiff's counsel was guilty of improper and prejudicial conduct in introducing evidence to induce a belief in the minds of the jury that the cause was being defended by a casualty company; and (7) because the court erred in giving plaintiff's instructions 1 and 2, and in giving each of them.

The first point urged is that the court erred in permitting plaintiff's husband to testify to a conversation he had with the truck driver and defendant's manager just after the accident which tended to show that the driver was negligent and that defendant carried insurance. As to this question defendant contends that at the beginning of the trial liability was admitted by defendant, and therefore the only purpose of the evidence was to show an insurance company was interested in the result. The testimony which is the basis of this charge is as follows:

"A. The talk I had with him was just as quick as I could run down there in about three minutes after the accident.

"Q. What if anything did they say as to the cause of the accident. (Objected to as immaterial and hearsay.) A. I talked to the driver and the manager of the Chatauqua done most of the talking. The other boy didn't say much. (Objection overruled. I believe it was a part of the res gestæ. To which ruling the defendant excepted and saved its exceptions.)

"Q. You may answer. A. Well they said they were going so fast and loaded so they couldn't stop. The manager was the first to make that...