De Donato v. Wells

• Decision Date: 28 July 1931
• Citation: 41 S.W.2d 184,328 Mo. 448
• Parties: Coreene De Donato v. Rolla Wells, Receiver of United Railways Company of St. Louis and St. Louis Public Service Company, Appellants
• Court: Missouri Supreme Court

41 S.W.2d 184

328 Mo. 448

Coreene De Donato v. Rolla Wells, Receiver of United Railways Company of St. Louis and St. Louis Public Service Company, Appellants

Supreme Court of Missouri

July 28, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.

Reversed and remanded.

T E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellants.

(1) It was error to permit hypothetical questions to be propounded to plaintiff's medical experts, Dr. Muench and Dr Royston, requiring the experts to assume the facts hypothesized in these questions, and then, eliminating any other cause, to state what caused the miscarriage; thus permitting the experts to assume that all other causes were eliminated. (a) It is prejudicial error to assume, in a hypothetical question, any fact not shown by the evidence, or to assume a hypothesis unsupported by the evidence. Root v. Ry. Co., 195 Mo. 348, 6 L. R. A. (N. S.) 212; Cardinale v. Kemp, 309 Mo. 275; Schulz v. Railroad Co. (Mo. Sup.), 4 S.W.2d 768; Bennett v. Myres (Mo. App.), 21 S.W.2d 945; Meily v. Ry. Co., 215 Mo. 567; Henson v. Ry. Co., 301 Mo. 415; Russ v. Ry. Co., 112 Mo. 45; Smith v. Railroad Co., 119 Mo. 246; 22 C. J. 708, 709, sec. 796, pp. 713-716, sec. 804; 22 C. J. 721, sec. 810; 11 R. C. L. 579-581, sec. 11; Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S.E. 305; Mahaney v. Coastwise Lbr. & Sup. Co., 173 N.Y.S. 150, 185 A.D. 348; Schnetzky v. Zanto, 174 Wis. 160, 182 N.W. 751; Phila. & Ry. Co. v. Cannon, 296 F. 302; Zimmern v. Motor Car Co., 205 Ala. 580, 88 So. 743; Payne v. Thurston, 148 Ark. 456, 230 S.W. 561; Enyart v. Orr, 78 Colo. 6, 238 P. 29; Baltimore & O. Railroad Co. v. Brooks (Md.), 148 A. 276. (b) It is error to permit a hypothetical question to be propounded to an expert based upon an assumption which is false. Baltimore Safe Dep. Co. v. Berry, 93 Md. 560, 49 A. 401; Fitzpatrick v. Railroad Co., 92 N.Y.S. 248; Swanson v. Hood, 99 Wash. 506, 170 P. 135; 22 C. J. 709, sec. 796; Authorities cited, supra. (c) It is error to permit a hypothetical question to be propounded to an expert which does not place before the witness facts, shown by the evidence, sufficient to enable him to give a judgment or opinion which will be of value to the jury. Turner v. Harr, 114 Mo. 335; Senn v. Ry. Co., 108 Mo. 142; Powell v. Railroad, 255 Mo. 420; 22 C. J. 710, sec. 800. (d) It was error to permit these hypothetical questions to be propounded, eliciting opinions from the experts as to the cause of the miscarriage suffered by plaintiff more than three months after the accident, when such questions, by requiring the witnesses to eliminate any cause other than the injuries received by plaintiff in the accident, did not permit the experts to apply their own expert knowledge and experience to the matter in issue. Testimony thus elicited is not within the realm of legitimate expert testimony. Benjamin v. St. Ry. Co., 133 Mo. 274; McCain v. Gas & Elec. Co., 15 S.W.2d 973; McAnany v. Henrici, 283 Mo. 103; Birmingham Amusement Co. v. Norris, 216 Ala. 138, 53 A. L. R. 846. (e) To permit a medical expert to answer a hypothetical question which assumes the existence of certain facts which the evidence tends to establish, and calls for an opinion of the witness as to the cause of a condition claimed to have resulted from an accident, but which requires the expert to eliminate all other causes thereof, when the evidence does not tend to eliminate other causes, but, on the contrary, shows that such condition commonly arises from causes other than trauma, is highly misleading and confusing to the jury, and constitutes prejudicial error. 22 C. J. 708, sec. 796, note 39. (2) It was also error to permit the hypothetical question to be propounded to plaintiff's medical expert, Dr. Penny, requiring him to assume the facts therein hypothesized, and to assume that plaintiff's condition resulted from no other cause, and then, eliminating any other cause, to say whether plaintiff's operation or miscarriage could have been the result of the injury sustained by her at the time of the accident. Authorities under Point 1, supra.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The evidence was clear and undisputed that the retroversion and miscarriage were due to respondent's injuries. Morris v. Ry. Co., 8 S.W.2d 15; Conduitt v. Gas & Electric Co., 31 S.W.2d 25; Spencer v. Railroad, 317 Mo. 503; Schulz v. Railroad, 319 Mo. 25. (2) There was no error in the rulings on the hypothetical questions. Morris v. Ry. Co., 8 S.W.2d 15; Cases cited, supra; Gallagher v. Lumber Co., 273 S.W. 217; Scheipers v. Ry. Co., 298 S.W. 54; Edmondson v. Hotel Co., 267 S.W. 617; Kinlen v. Ry., 216 Mo. 172.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The defendant street railway company has appealed from a judgment in a personal injury case in favor of plaintiff. On this appeal it stands conceded that plaintiff was injured by defendant's negligence, and no errors are assigned on that score. The errors complained of relate to the damages awarded, and particularly to the introduction of certain expert evidence on that question in plaintiff's behalf. We need not dwell on the facts except as they relate to these questions.

The plaintiff, a young married woman, was driving an automobile which came on or near defendant's track and was struck by the rear approach of a street car on February 5, 1926. She was thrown with considerable violence from her seat against the gear shift and to the floor of the automobile, and received many abrasions, cuts and bruises. Among these was an injury to the knee and another to the shoulder. The knee injury proved quite serious, but defendant's liability for that and other direct injuries is not now questioned by defendant. By far, the most serious injury received by plaintiff, and to which the expert evidence complained of related, was to her lower abdomen and pelvic region involving the female organs; and she alleges that as a result thereof she "was caused to suffer from headaches, nervousness weakness, dizziness, restlessness and insomnia, from nausea and vomiting spells, hemorrhage of the uterus and loss of blood; that she was threatened with an abortion, plaintiff having been pregnant at the time she sustained said injuries, and that in May, 1926, plaintiff suffered an abortion; that plaintiff suffered from pelvic abscesses and infection; that in the care and treatment of said injuries she underwent three serious and painful operations, was confined in a hospital for a period of about five weeks, and was compelled to have the operation of transfusion of blood performed upon her; that the functional use of all of said parts and organs of her body have been seriously and permanently impaired, weakened and diminished."

Plaintiff's evidence showed that on receiving her injuries the first physician who waited on her was Dr. D. L. Penny, who had her removed to a hospital for treatment. According to his evidence, he treated her there for some ten days and, though not yet well, he concluded that he could treat her as well at home and that the change would help her nervous condition. About March 1 this doctor discovered by an examination that plaintiff was suffering from a retroverted uterus, which he endeavored to correct, and he also discovered symptoms of pregnancy and recommended treatment by Dr. Royston, a specialist in obstetrics and gynecology. Plaintiff said she had been pregnant about six weeks or two months and that this was her first pregnancy. The treatment of her case was then largely turned over to Dr. Royston and he made a positive diagnosis of pregnancy about March 15. After Dr. Royston took over the case, Dr. Penny continued treating her, but, as he says, only for her stomach and nervous condition. The evidence is that beginning with this accident plaintiff had suffered and continued to suffer from headache and backache, pains in the lower abdominal regions, and nauseating stomach trouble, and was in bed most of the time. As to her affliction from a retroverted uterus, this doctor said that while a blow or violence to the lower abdominal or pelvic region might cause the displacement or retroversion of the uterus, it is a fact that many women have a retroverted uterus who have never been in any accident, and that such condition may be caused by many things other than trauma or violence; that a retroverted uterus is a condition that is quite common; that a woman may have a retrovertered uterus when there is no cause whatever for it, and there are many causes other than trauma; that many women have this affliction and never know it, or have such condition for years and it is not discovered until an examination is made. He further said that plaintiff's symptoms and sufferings at that time were such as are common in pregnancy.

Dr Royston testified that he first began treating plaintiff on March 8, 1926, when she came to his office with Dr. Penny, and that his examination of her disclosed her suffering from a retroversion of the uterus, and that he soon thereafter ascertained that she was pregnant. He did not see or treat her again till May 9, at which time she had suffered an abortion some six hours earlier at her home. He found her in bad shape, weak from loss of blood, and the birth incomplete. He had her removed to a hospital and gave her necessary medical attention and later a transfusion of blood on account of her anemic condition. Ulcerations of the uterus and surrounding organs followed and plaintiff did not leave the hospital for considerable time. He also testified that there are numerous causes for a miscarriage; that it is possible for a retroverted uterus to cause a miscarriage, although it does not do so as a rule. From his...