Derschow v. St. Louis Public Service Co.

• Decision Date: 30 June 1936
• Parties: Gertrude Derschow v. St. Louis Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

95 S.W.2d 1173

339 Mo. 63

Gertrude Derschow v. St. Louis Public Service Company, a Corporation, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

T E. Francis, B. G. Carpenter and Wm. H. Allen for appellant.

(1) The trial court erred in giving, at plaintiff's request Instruction 2, on the measure of damages for the reason that that instruction authorized an award for permanent injuries when there was no evidence lawfully warranting a recovery for permanent injuries proximately resulting from the alleged trauma. (a) Such evidence left the whole matter as to the proximate cause of such pathological conditions to pure speculation and conjecture. Kimmie v. Term. Railroad Assn., 334 Mo. 596, 66 S.W.2d 561; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Cox v. Railroad Co., 335 Mo. 1226, 76 S.W.2d 411; Cole v. Railroad Co., 332 Mo. 999, 61 S.W.2d 344; Scanlon v. Kansas City, 81 S.W.2d 940; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; May Dept. Stores Co. v. Bell, 61 F.2d 842; Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 280. (b) And there was no evidence of such character as to afford a basis for the expression of any medical expert opinion to the effect that such alleged trauma did cause the pathological conditions mentioned. Even a positive expert opinion must have to support its testimony and professional reasons which will give it sufficient probative force to be substantial evidence. Kimmie v. Term. Railroad Assn., 334 Mo. 605; Hall v. Mercantile Trust Co., 332 Mo. 802; Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 280; Sayre v. Trustees of Princeton University, 192 Mo. 128; Bucher v. Railroad Co., 139 Wis. 608, 120 N.W. 518. (c) To say of a thing that it is permanent means that it will continue, regardless of every contingency or fortuitous circumstance. To recover damages for permanent injury the permanency must be shown with reasonable certainty; mere conjecture or likelihood, or even probability of its permanency, will not sustain an award for permanent injuries. Plank v. Brown Petroleum Corp., 332 Mo. 1150, 61 S.W.2d 334; Lebrecht v. United Rys. Co., 237 S.W. 114; Clark v. Ry. Co., 324 Mo. 419. (2) And since it is impossible to tell what the jury may have allowed for the above-mentioned pathological conditions for which, under the evidence in this record, no recovery may be had, the situation is one that cannot be cured by a remittitur. Plank v. Brown Petroleum Corp., 332 Mo. 1150, 61 S.W.2d 334; Kimmie v. Term. Railroad Assn., 334 Mo. 596, 66 S.W.2d 561.

Charles M. Ryan and Robert L. Aronson for respondent.

(1) No error was committed in giving Instruction 2. (a) The evidence sufficiently established that the respondent's internal injuries proximately resulted from her fall from appellant's car. Edmondson v. Hotels Statler Co., Inc., 267 S.W. 612; Meyers v. Wells, 273 S.W. 110; Mueller v. St. L. Pub. Serv. Co., 44 S.W.2d 875; Holloway v. Barnes Grocer Co., 15 S.W.2d 917; Lyons v. Met. St. Ry. Co., 253 Mo. 143; McPherson v. Premier Service Co., 38 S.W.2d 277. (b) No specific language is required from a medical witness to support the submission of a question of permanency. Nance v. Lansdell, 73 S.W.2d 346. (c) The instruction did not, in fact, direct the jury to include permanency as an element in the computation of its verdict. (2) The complaint concerning the overruling of the appellant's objection to a question asked of Dr. Harmon, and the overruling of appellant's motion to strike the answer thereto are untenable, under the familiar rule that the scope of the examination of witnesses is largely within the sound discretion of the trial court; which discretion was not here abused. (3) The present judgment, after remittitur in the trial court, is not excessive. Keehn v. Realty & Inv. Co., 43 S.W.2d 416; Hulen v. Wheelock, 300 S.W. 479; Richardson v. K. C. Rys. Co., 231 S.W. 938; Hiatt v. Ry. Co., 271 S.W. 806.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Appellant, St. Louis Public Service Company, a corporation, appeals from a judgment awarding respondent Gertrude Derschow, $ 10,000 damages for injuries sustained in a fall while alighting from one of appellant's street cars and occasioned by certain alleged negligent acts of appellant's employees.

Admitting plaintiff made a submissible case, appellant asserts error in that respondent's instruction on the measure of damages provided, if the jury found for respondent: "then, in estimating her damages you will take into consideration the physical injury sustained, whether temporary or permanent, if any, . . ." on the ground there was no substantial evidence upon which to base an award for permanent injuries.

Respondent's evidence established that she sustained her injuries on October 2, 1930; that prior thereto her health had been good; that practically constantly since the accident she had been and was, at the time of trial, suffering pain, and had done no hard work since the accident; and that she was thirty-three years of age at the time of trial (June, 1933). Dr. Harmon, her physician, testified that the visible injuries suffered by respondent consisted of skin abrasions on her arms, and shoulders, and slight skin abrasions on the knees; that respondent complained of pain in her abdomen; that respondent's abdomen was distended; that she complained of bleeding and vomiting and did bleed and vomit, and, while he would not term it a hemorrhage, there was a constant oozing of blood from the vagina; that he treated respondent once or twice at her home and thereafter at his office and on February 18, 1931, operated on respondent to find out what was causing the bleeding; that he found "the stomach condition minor -- didn't amount to anything;" that both ovaries were prolapsed in the cul-de-sac; that he shortened the ligaments of plaintiff's uterus; that he removed her appendix ("Q. Removing the appendix had nothing to do with these other injuries, did it? A. No, sir"); and that respondent was in the hospital about eighteen days. Dr. Harmon testified that the distended condition of respondent's abdomen, the emission of blood from respondent's vagina and the prolapsed condition of respondent's ovaries might or could have resulted from respondent's fall. The only express testimony in the record bearing on the permanency of any of the foregoing pathological conditions was adduced immediately following testimony by Dr. Harmon concerning an examination made of respondent two or three weeks prior to the trial in which he states respondent "still complains of that bleeding following the distressed condition of her stomach and periodical bleeding, but not as profuse as what she had had." It reads:

"Q. Now this condition you described her as suffering from, doctor, in your opinion is it a permanent condition? A. It very often takes time for a condition of that kind to clear up.

"Q. I mean in your opinion is it permanent? A. It is permanent up to this time. I don't know how long it will last.

"Q. Well, I mean have you an opinion --

"Mr. Dearing: The doctor has expressed an opinion, if your Honor please. This is cross-examination of his own witness. The doctor has answered the question.

"Mr. Kane: I don't care to be shown up that way.

"The Court: He has answered he can't state.

"Mr. Kane (Q): Did you say whether or not, in your opinion -- have you got an opinion on this? A. Well, I wouldn't say positive the time it would take for a condition of that kind to clear up, because it is hard telling.

"Q. Sir? A. It is hard telling how long a condition of that kind will last.

"Q. Have you an opinion as to whether it is permanent or not?

"Mr. Dearing: I object to that as repetition.

"The Court: Let him answer the question again. [Exception duly saved.]

"A. Well, it has lasted quite a while and I would almost say it was permanent.

"Mr. Dearing: I ask that be stricken out; that is speculative -- almost say.

"The Court: It will be overruled. He is an expert. [Exception duly saved.]"

The quoted portion of respondent's instruction on the measure of damages permitted the jury to find that respondent had sustained permanent injuries and to take such permanent injuries into consideration in awarding damages. The jury returned a verdict for $ 15,000 and respondent entered a remittitur of $ 5,000 as a condition to the overruling of appellant's motion for new trial. The only direct testimony adduced to sustain any award for permanent injuries was the statement of Dr. Harmon, speaking of respondent's complaint that the bleeding continued ". . . I would almost say it was permanent." This is not a statement that the condition is permanent or a statement of an opinion to that effect. His previous testimony to the effect he did not know how long it would last; that it was hard telling how long it would continue, and that he would not say positive the time it would take to clear up, indicates that, from his knowledge of respondent's condition and her complaint to...