Duncan v. City Ice Co.

• Decision Date: 02 December 1929
• Docket Number: No. 16208.,16208.
• Parties: DUNCAN v. CITY ICE CO.
• Court: Missouri Court of Appeals

25 S.W.2d 536

DUNCAN v. CITY ICE CO.

No. 16208.

Kansas City Court of Appeals. Missouri.

December 2, 1929.

Rehearing Denied January 6, 1930.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by James Duncan against the City Ice Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Horace Guffin, of Kansas City, for appellant.

Mont T. Prewitt, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000.00 and defendant has appealed.

The facts show that on August 18th, 1923, about eleven o'clock a. m., plaintiff was working as a conductor on a street car when it was struck by defendant's ice truck. The street car was moving in a westerly direction on Fifteenth Street in Kansas City and the collision occurred on said street at a point about 150 feet west of Topping Avenue in said city.

As the facts in this case are similar to those in the case of Wendel v. City Ice Co., 22 S.W. (2d) 215, decided at this sitting, it will be unnecessary for us to detail them again as they may be gleaned from a reading of the opinion in that case.

Before examining the jury on voir dire counsel for plaintiff asked counsel for defendant whether there was an insurance company involved in the case. Defendant's counsel refused to state. Thereupon counsel for plaintiff stated that he had been reliably informed that defendant carried indemnity insurance in the Casualty Reciprocal Exchange, and asked counsel for defendant if he would voluntarily advise plaintiff's counsel as to whether the Casualty Reciprocal Exchange, represented in Kansas City by the Bruce Dodson Insurance Agency, was involved in the case. Thereafter, the Court ruled that in view of the fact that he remembered that defendant admitted in the Wendel Case, tried a few days before, that defendant carried indemnity insurance in the Casualty Reciprocal Exchange he would permit counsel for plaintiff to ask the jury questions with respect to that company. Thereupon the following questions were asked the jury:

"Now, gentlemen, are any of you gentlemen connected with the Bruce Dodson Insurance Company, located about Twenty-seventh Street, I guess it is just west of Main, in the Bruce Dodson Insurance Building? Are any of you gentlemen engaged with that company in any capacity?

"Are any of the members of your family or any of your relatives connected with the Bruce Dodson Insurance Company?

"Are any of you gentlemen stockholders or policy holders at this time in the Casualty Reciprocal Exchange?

"Have any of you any financial interest in any way in the Casualty Reciprocal Exchange?"

Thereupon defendant asked that the jury be discharged on account of the fact that plaintiff had put before the jury the fact that an insurance company was back of the case. The Court ruled adversely on this motion.

Defendant now insists that plaintiff's counsel could have inquired of the jury in reference to the Casualty Reciprocal Exchange without disclosing that there was an insurance company in the case because the name of that company did not contain the word "insurance"; that plaintiff's counsel had no right to inquire in reference to the Bruce Dodson Insurance Agency, thus indicating to the jury that there was an insurance company back of the case.

We find no bad faith on the part of plaintiff's counsel in making the inquiry in reference to the Bruce Dodson Insurance Agency. See Wendel v. City Ice Co., supra, and cases therein cited.

Complaint is made of the giving of plaintiff's instruction No. 1. This instruction is the same as plaintiff's main instruction in the Wendel Case. From what we said in that case this point will be ruled against defendant.

Complaint is made of the refusal of the Court to permit defendant to cross-examine plaintiff's physician, Dr. Bleil, in a manner tending to show that he had been confused in reference to the injuries received by this plaintiff and Wendel. The evidence shows that this doctor treated a great many employees of the Street Railways Company; that he had testified in a great many suits; that he also testified for Wendel in the latter's case. In the present case on direct examination the doctor testified that plaintiff was in his office on the day that he was injured; that the witness examined him; that he requested plaintiff to take off his clothing; that he found that plaintiff had a cut or scratch across his face on the right side; that his lower front teeth were knocked loose; that his gums were bruised; that his back was wrenched and bruised and "especially the right side in the region of the margin of the hip bone was bruised — the top of the hip bone"; that over this bruised and lame place in his back and right side the witness put some adhesive strips "in order to relieve the strain on those muscles of the body, I put some adhesive strips around him"; that there was soreness in the muscles of plaintiff's back; that his right kidney was in the neighborhood of one to one and one-half inches lower than its normal position; that the doctor dressed plaintiff's face and lip where they were cut; that plaintiff had some nausea and complained of dizziness; that he gave plaintiff a tonic for this complaint; that plaintiff subsequently complained of passing blood in his urine, of having to get up frequently at night to urinate and of headaches; that he analyzed plaintiff's urine and found nothing of a deleterious nature therein; that it was his opinion that on account of the damage, injury and shock to plaintiff's nervous system the kidneys were not taking out the "normal constituents of urine in their normal proportions"; that as a result of plaintiff's condition he suffered loss of appetite and "about" thirty pounds in weight, "as I recall it."

Defendant sought on cross-examination of the doctor to ask him whether he did not testify in the Wendel Case that Wendel's "left kidney was an inch to an inch and one-half below normal, an inch to an inch and one-half out of its normal position"; that he testified in the other case that Wendel had lost eighteen or twenty pounds in weight; that he found a bruise across Wendel's back in the same position that he testified he found a bruise on plaintiff's back and that he placed tape across Wendel's back in the same way that he testified he placed tape across plaintiff's back; that the doctor testified in the Wendel Case that plaintiff suffered loss of appetite; that Wendel was pale and sick at his stomach and vomited following the accident; that Wendel's back was wrenched in the same way that the witness had testified that plaintiff's back was wrenched.

Defendant further sought to ask the witness if he did not testify in the Wendel Case that Wendel suffered from headaches. The Court first sustained an objection to this, but later the objection was withdrawn and the doctor answered, "I possibly did." The Court refused to permit defendant to ask the doctor whether he gave plaintiff any different treatment or any different medicine from that which he gave Wendel. The doctor testified that he reviewed his notes to refresh his recollection before testifying in the present case but that he did not bring his notes with him.

Counsel for defendant stated to the Court: "I intend to show that the doctor's testimony in regard to his (Wendel's) injuries was practically the same as he has testified in regard to this plaintiff, and I think perhaps the doctor might be confused in the injuries sustained by these two men." However, the Court sustained plaintiff's objection to this.

We think the Court should have permitted this cross-examination. Dr. Bleil was the only physician who testified for the plaintiff and his testimony constituted the only medical testimony he (plaintiff) had except a dentist who testified in reference to the loss of plaintiff's teeth. Defendant produced a doctor who had examined plaintiff a short time before the trial and this doctor testified that he had found that plaintiff had no objective symptoms of any injury except the loss of his teeth. We cannot say what other questions might have been asked plaintiff's doctor by defendant tending to show the similarity of his testimony in the two cases had not the Court repeatedly sustained objections to these questions propounded to the witness by defendant, indicating that the Court would not permit questions of this character. However, we think that the questions propounded to the witness in reference to his...