Eickmann v. St. Louis Public Service Co.
| Decision Date | 10 November 1952 |
| Docket Number | No. 1,No. 42871,42871,1 |
| Citation | 253 S.W.2d 122,363 Mo. 651 |
| Parties | EICKMANN v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Louis E. Miller and B. Sherman Landau, St. Louis, for appellant.
Mattingly, Boas & Richards and Lloyd E. Boas, St. Louis, Lester F. Stephens, St. Louis, of counsel, for respondent.
COIL, Commissioner.
Maybelle Eickmann was a passenger on defendant's bus which ran into the rear of another of defendant's buses. She sought $22,790 damages for alleged serious and permanent injuries. Defendant admitted liability for the collision but denied that plaintiff sustained injury. Plaintiff submitted her case by an instruction which included the admission of liability and directed a verdict if the jury found that she sustained injury and damage as a direct and proximate result of the collision.
Plaintiff appealed from the judgment entered on defendant's verdict. She asserts that the trial court erred in admitting and excluding evidence and in permitting improper and prejudicial jury argument; and that the jury failed to 'deliberate' on the issue of her injuries.
In 1943 and 1948 plaintiff had been in accidents while a passenger on defendant's buses, and, in 1940, in another accident in which defendant was not involved. These will sometimes be referred to as the 1940, 1943, and 1948 accidents, respectively.
It is plaintiff's contention that the trial court erred in admitting evidence of each of the prior accidents and that after having improperly admitted such evidence, erred further in refusing to permit plaintiff to show the amount paid her in settlement of her claim arising out of each of the accidents.
The opening statements of counsel are not included in the transcript. During cross-examination of plaintiff, defendant's counsel, after he had inquired about the 1948 accident without objection, said: 'Now, I believe Mr. Miller stated you had been in another bus accident prior to 1948, also, is that correct?' Plaintiff answered, 'Yes, I was.' Later, defendant's counsel asked plaintiff: 'Now, in 1948, when you had this occurrence on the bus which I believe Mr. Miller stated in his opening statement was settled for a nominal sum, do you recollect whether or not you were in good health at that time?' Plaintiff answered, 'Yes, I was.' No suggestion was made at the trial by plaintiff's counsel that he was being incorrectly quoted or that he had not mentioned the 1943 and 1948 bus accidents in his opening statement and no contention to that effect is here made. In his closing argument plaintiff's counsel stated that plaintiff had shown the fact of the 1948 accident and his argument is such that it is susceptible of the conclusion that he was referring also to the 1943 accident as having been shown first by plaintiff. It seems apparent that plaintiff injected into the case the 1943 and 1948 bus accidents.
Without objection, defendant's counsel extensively inquired about each of the three prior accidents. The instances and the circumstances in which objections were made are now mentioned. After defendant's counsel had established that plaintiff had injured her left wrist in the 1948 accident and had inquired whether she had at that time injured her back, and plaintiff had answered that she had not, plaintiff's counsel moved to strike the answer as to injury to the left wrist and to instruct the jury to disregard it on the ground it was immaterial and irrelevant because not the basis for any claim in the present case. This motion was overruled. Defendant then proceeded with further cross-examination concerning the 1948 accident and plaintiff described the injury there sustained as being to her left arm. He then cross-examined concerning the 1943 accident and the only objection made was to the form of one question concerning whether plaintiff had made a certain statement which bore her signature, the objection being: Defendant's counsel then asked whether she had been injured in any other way than in the 1943, 1948, and 1950 (instant case) bus accidents. Plaintiff answered that she had not. He then inquired whether she had not filed a lawsuit in 1941 alleging serious and permanent injuries against the other persons involved in the 1940 accident. No objection was made to this line of inquiry except that later, when defendant had the circuit court file in the 1941 case marked as an exhibit, the objection was made that 'I submit that pleadings are never evidence in any case.' Without objection, defendant's counsel then proceeded to inquire fully into the 1940 accident. Later, defendant's counsel returned to an inquiry concerning the 1948 accident, and inquired whether plaintiff had made a certain statement to an adjuster for the Public Service Company about three months after that accident. An objection was made that plaintiff could not be impeached in such a manner unless the party taking the statement were present. The court indicated that counsel might interrogate the witness if he expected to later produce the party who took the statement. Defendant's counsel did not pursue the inquiry and plaintiff did not answer the question. No objection was made to other cross-examination concerning the three prior accidents.
On redirect examination, plaintiff testified that she saw a doctor two or three times as a result of the 1943 accident, twice as a result of the 1948 accident, and that in settlement of the 1940 accident her husband was paid $200 for damage to his automobile. It had theretofore been developed that the total paid as a result of the 1940 accident was $500.
Defendant offered its Exhibit 2 which was the circuit court file containing plaintiff's petition filed in the 1941 suit, alleging serious and permanent injuries for which she sought $7,500 damages. At the time of the offer, the following occurred:
Plaintiff's counsel:
'The Court: Overruled.
'Mr. Miller: Has your Honor seen the petition?
'The Court: I am limiting this merely to affect the credibility of the witness, limit it to just that particular part.
'Mr. Miller: Limited to what?
Exhibit 2 was read in part. Then, this:
'Mr. Miller: Your Honor, I ask counsel read this entirely so we get some intelligent idea of it.
'The Court: All right.'
At plaintiff's request, defendant's Exhibit 1 (the statement purportedly made by plaintiff with respect to the 1943 accident) was read to the jury.
Plaintiff's counsel moved that the jury be instructed to disregard the testimony that plaintiff sustained a sprain of her left wrist in the 1948 accident on the ground that it was irrelevant and immaterial because 'it doesn't cover any alleged injuries in the present occurrence', and moved to instruct the jury to disregard any evidence with reference to any injury sustained in the 1943 accident, 'there being no credible evidence to permit its admission.' Both of these motions were overruled.
Defendant's claim adjuster testified to taking plaintiff's statement as to the 1943 accident (Ex. 1). He stated that plaintiff had told him that she had sustained bruises 'to her left hip, whole left side, loin and back.' Plaintiff's counsel moved to strike this answer 'for the reason it is not the basis of any claim or complaint in the present case.'
The foregoing review of relevant portions of the record demonstrates that plaintiff is now in no position to urge error in the admission of the evidence of prior accidents and claims. As noted, plaintiff injected the 1943 and 1948 accidents into the case. Extensive cross-examination about each of the accidents was permitted without objection. It appears that the injuries plaintiff claimed to have sustained in the 1940, and 1943, and 1948 accidents may have been related in some measure at least, to her claims of injuries in the 1950 accident. Plaintiff alleged in her instant petition that: 'She sustained multiple contusions and abrasions, with sprain and tearing of the deep tissues, to her back, neck, left side, left knee, left thigh, left elbow and left ankle, and said injuries have resulted in impairment of the injured portions; * * *.' Thus, defendant was entitled to show that in the 1943 accident plaintiff had claimed a wrenched side and back or had sustained bruises to her side and back as bearing upon her instant claim of sprain and tearing of the deep tissues of her back and left side. Plaintiff once described her injury in the 1948 accident as one to her left arm and once specified her left wrist. While plaintiff's instant petition did not charge injury to her left arm or wrist as such, it did charge injury to her left elbow. Her witness, Dr. McFadden, testified that on examination by him plaintiff complained of tightness in both arms and hands, that her hands trembled, and that the nerves in her arms twitched.
As to the 1940 accident, plaintiff did not admit having filed a suit for $7,500 in which, although her injuries were not specified, she did claim that she had sustained serious and permanent injuries. Certainly, defendant was entitled to cross- examine about the nature and extent of the injuries sustained by plaintiff in 1940 and was entitled to have the jury consider the petition (Ex. 2) which she filed, to corroborate defendant's contention that she had claimed $7,500 for some injuries sustained in 1940. The court specifically limited Exhibit 2 (the 1941 petition) to the impeachment of plaintiff as heretofore...
To continue reading
Request your trial
-
Dickerson v. St. Louis Public Service Co.
...could perhaps have been better worded, but, under the circumstances, this was not reversible error. And see Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122. The next assignment is of error in excluding the report of a supposed physical examination of plaintiff. Accordi......
-
Listerman v. Day & Night Plumbing & Heating Service, Inc.
...10).12 State v. Paglino, Mo., 319 S.W.2d 613, 623(9); State v. Menard, Mo., 331 S.W.2d 521, 524(2); Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 663, 253 S.W.2d 122, 129(7).13 Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 715, 72 A.L.R.2d 855, Kimmie v.......
-
Allen v. St. Louis Public Service Co.
...may properly express legitimate expert opinions and, as such, they do not invade the province of the jury. Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122; Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800. There was direct testimony that the doctor who wrote this entry wa......
-
Capra v. Phillips Inv. Co.
...admission or exclusion of expert opinion testimony is largely within the sound discretion of the trial court. Eickmann v. St. Louis Pub. Serv. Co., 363 Mo. 651, 253 S.W.2d 122, 130; Fair Merc. Co. v. St. Paul Fire & M. Ins. Co., 237 Mo.App. 511, 175 S.W.2d 930, 934[3-7]. 'An expert witness,......