Crapson v. United Chatauqua Co.

• Decision Date: 06 April 1931
• Docket Number: No. 17131.,17131.
• Parties: CRAPSON v. UNITED CHATAUQUA CO.
• Court: Missouri Court of Appeals

37 S.W.2d 966

CRAPSON v. UNITED CHATAUQUA CO.

No. 17131.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

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

"Not to be officially published."

Action by Fern Crapson against the United Chatauqua Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

A. D. Campbell, of Milan, and John Campbell, of Kirksville, for appellant.

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

BOYER, C.

Suit for damages. The case is here on a second appeal. The result of the first trial and appeal is reported in 27 S.W.(2d) 722. Plaintiff claims she was injured when a truck of defendant collided with an automobile in which she was riding. Defendant admitted liability for any injury that the plaintiff received, and it was agreed "that the only issue to be submitted is the question whether she was injured and if so how much." The jury awarded plaintiff $2,750, and judgment followed for that sum. Defendant duly appealed, and assigns error (1) in the refusal of an instruction; (2) in the admission of testimony; and (3) that the verdict is excessive.

Evidence on behalf of plaintiff tends to show that she lived at Glenwood, Mo., and on the 31st of July, 1929, was riding with her husband in an automobile on highway No. 4 near the town of Memphis. Plaintiff was in the back seat with her child, and a man in the front seat with her husband. Defendant's truck hit the automobile with such force that plaintiff was thrown against the cloak rail on the back of the front seat. The rail struck her under the heart; she was bruised in the side, on her arm and knees; she suffered nervousness and sickness from the shock; her knees were skinned; and she was bruised in the side under the arm. The bruised place on her side was swollen, and, when the swelling began to leave, a black, blue, and greenish color remained for some two or three weeks. On the bruised part of her body there was a puffed place as large as an egg, accompanied by much soreness. She suffered pain in the side, and the soreness lasted four or five weeks, with excessive pain. Plaintiff said: "It was actual misery and I still have those pains. It ruined my nerves so I couldn't control my nerves. I haven't since had any natural sleep. I had been in perfect health before and I always worked before the accident. Worked as a housewife and at the restaurant; did my own washing and ironing. My husband was in the restaurant business and I waited on trade there, also." At the time of the accident plaintiff weighed 181 pounds; at the time of trial, 146 pounds. Before the accident she raised garden and chickens, and since the accident has been unable to do that kind of work; she is unable now to keep her own house, and had been confined to her bed for a period of two or three days about a week before the trial. She still suffers pain in her chest and in the region of the heart; she is weak and does not sleep very much, and is required to lie down 2½ or 3 hours every day. Before the accident she was well and suffered no such symptoms.

Some days after the accident she consulted Dr. Keller, who prescribed for her and left some medicine. She followed his directions and secured other medicine and took it, since which time she consulted Dr. Green, who directed her what to do and she followed his instructions. She further testified on cross-examination that the suit was filed August 3, 1929; that she had testified at the first trial that it was possibly a week after the accident when the doctor first saw her. She now says: "I don't think I brought the suit before I saw a doctor." Dr. Keller visited her one time, and was the only doctor who did visit her before the first trial, which was November 8, 1929. After the first trial she employed Dr. Green, who saw her five to seven times; she also saw a doctor in Kansas City three months before the last trial, but he did not treat her. The last trial was held September 5, 1930. Dr. Keller again visited her about three weeks before the trial when she was ill. Other testimony shows that the accident occurred about 2 or 3 o'clock p. m., after which plaintiff accompanied her husband and other parties in the car to various places and with an attorney went to the town of Brashear and saw the truck in question. Plaintiff did not arrive home until about 9:30 p. m.

Dr. Green was called and testified that he examined plaintiff May 17, 1930, and regarded her symptoms as resulting from extreme nervousness and heart affection. He found an irregular heart beat and that the left arm and hand did not respond well to stimuli; that "those symptoms are listed under the conditions which would result from a blow. The blow would first affect the nervous system and secondarily the heart. The left arm was tender at the shoulder and was numb. There is an irritation to the nervous system; her condition would respond to medical treatment. I treated her and saw her twice after May 17th. There has been some improvement in her condition, especially in the arm." Plaintiff did not call Dr. Keller to testify. All that is shown in reference to his availability or presence is the following question and answer: "Q. Is Dr. Keller here? A. Not that I know of."

In reference to plaintiff's affliction she was corroborated, and it is further shown that plaintiff was unable to sleep and sometimes stays up until 3 or 4 o'clock in the morning, and then stays in bed the entire day; that she has fainting spells; that she is very nervous and has lost weight. One witness employed by plaintiff's husband testified: "I worked there three years and she was not sick during that time. Since the accident, she does not do any work. She was sick and in bed for about one week some two or three weeks ago. Since the accident I have seen her faint. This occurred as often as once a week."

The evidence which is claimed to have been erroneously admitted and the objection thereto is shown by the following portion of the testimony of plaintiff's daughter:

"Q. What would your mother do when she would come to Kansas City, to visit you? (Defendant objects to that as calling for hearsay testimony, self-serving.)

"The Court: Objection overruled. (Exception was saved.)

"Q. Prior to the accident when she came to Kansas City? A. We usually went down town and shopped all day and then we would go to a show and mother never complained of being tired or worn out."

After the answer, counsel for defendant said: "We object to that as self-serving and a mere speech to the jury and ask that it be stricken out, as tending to prove no issue in the case." The objection was over-ruled, to which exception was saved. Defendant offered no evidence, and requested the court to give the following instruction: "On behalf of the defendant the court instructs the jury that the plaintiff admitted Dr. Keller treated her for the injury which she claims, and that from the failure of the plaintiff to call Dr....