Epstein v. Pennsylvania Railroad Company
| Decision Date | 10 May 1913 |
| Citation | 156 S.W. 699,250 Mo. 1 |
| Parties | SAMUEL EPSTEIN v. PENNSYLVANIA RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Judgment of Circuit Court Reversed and Cause Remanded.
Everett W. Pattison for appellant.
The court erred in excluding the testimony of the two physicians who assisted Dr. Elston in examining plaintiff and dressing his injuries at Corry Hospital. The plaintiff testified as to what took place at the hospital, going fully into the details. Dr. Phelps and Dr. Christie were present assisting Dr. Elston. The court permitted Dr. Elston to testify, but rejected the testimony of the assisting physicians. When plaintiff removed the seal of secrecy as to the events which occurred at the hospital, he waived his privilege, not only as to Dr. Elston, but also as to the other physicians who were present assisting him. Webb v. Railroad, 89 Mo.App. 610; Highbill v. Railroad, 93 Mo.App. 223; Morris v. Railroad, 148 N.Y. 88, 51 Am. St. 675; Treanor v. Railroad, 16 N.Y.S. 538; Marx v Railroad, 10 N.Y.S. 159; People v. Schuyler, 106 N.Y. 306; Lane v. Boicourt, 128 Ind. 420, 25 Am St. 442. There is a marked distinction between the case at bar and that of Mellor v. Railroad, 105 Mo. 455, in this respect: In the Mellor case the two physicians treated the patient at different times; in the case at bar, all at the same time. This distinction is recognized in several of the decisions cited just above.
Jesse A. Wolfort and S. P. Bond for respondent.
(1) The respondent moves the court to remand this case to the St. Louis Court of Appeals, as the Supreme Court is without jurisdiction to hear and determine said cause. Sec. 6, art. 6, Amendment Constitution of 1884; R.S. 1909, p. 101; Bank v. Wolsten, 144 Mo. 409; Railroad v. Smith, 154 Mo. 319. Because the St. Louis Court of Appeals affirmed said case of Epstein v. Railroad, 143 Mo.App. 135, in conformity with the decisions of the Supreme Court in the cases of Mellor v. Railroad, 105 Mo. 455, and Holloway v. Kansas City, 184 Mo. 19. And for the further reason that said two last-mentioned decisions are not in conflict with the Kansas City Court of Appeals, as announced in the cases of Webb v. Railroad, 89 Mo.App. 604, and Highfill v. Railroad, 93 Mo.App. 219, as interpreted by the same Kansas City Court of Appeals in the case of Hartley v. Calbreath, 127 Mo.App. 558, in which case Mellor v. Railroad, supra, is cited with approval and authority. (2) Respondent objects to the court considering the evidence of Drs. Phelps and Christie, complained of and included in appellant's abstract of record, because it was never submitted to the court, nor did appellant state to the court what it expected to prove by their depositions; and, furthermore, the testimony sought to be introduced was privileged. The court below did not err in excluding the depositions of Drs. Phelps and Christie. In fact, no part of Dr. Christie's deposition was offered by the appellant, as the additional transcript of the record shows, and the part offered of Dr. Phelps' was properly excluded. The court did not err, for the reasons: First. Because counsel for the appellant did not state to the court at the time what he intended to prove by the witnesses, or either of them. Smart v. Kansas City, 208 Mo. 162; Ruschenberg v. Railroad, 161 Mo. 70. Second. Because anything that the witnesses Drs. Phelps and Christie learned concerning the respondent was by virtue of being his physicians, and hence privileged as was the testimony of Dr. Elston. Smart v. Kansas City, 208 Mo. 162, 176; Gartside v. Ins. Co., 76 Mo. 446; Groll v. Tower, 85 Mo. 253; Carrington v. St. Louis, 89 Mo. 216; Thompson v. Ish, 99 Mo. 160; Morton v. Moberly, 18 Mo.App. 459; Streeter v. Breckinridge, 23 Mo.App. 244; Corbett v. Railroad, 26 Mo.App. 626; Obermeyer v. Chair Co., 229 Mo. 97; King v. City, 27 Mo.App. 231; Weitz v. Railroad, 33 Mo.App. 39; Evans v. Trenton, 112 Mo. 390; Mellor v. Railroad, 105 Mo. 455; Haworth v. Railroad, 94 Mo.App. 225; State v. Kennedy, 177 Mo. 127; James v. Kansas City, 82 Mo.App. 20; Glasgow v. Railroad, 191 Mo. 347. Third. Because if it were for the purpose of impeaching appellant's witnesses, Edward Walters, John M. Andrews and R. J. Malone, as to their testimony concerning respondent being sick and complaining of injury to his stomach or for the purpose of impeaching the testimony of Miss Ida Falconer concerning the sprain to respondent's ankle, it is estopped for the reason that it could not impeach its own witnesses. Clafflin v. Dodson, 111 Mo. 201; Brown v. Wood, 19 Mo. 475. Fourth. At best, the testimony as set out in the depositions of Drs. Phelps and Christie would only be cumulative testimony added to the testimony of James Summerson, Mrs. Minnie Fowle, John M. Andrews, Miss Ida Falconer, Miss Lillian Stover, Drs. Page, Shortt, Elston and Baker, concerning the extent of respondent's injuries to his leg and not otherwise. The court erred in allowing the testimony of Drs. Page, Shortt, Baker and Dr. Elston, but as appellant got the benefit of their testimony, it cannot be heard to complain. (3) When the verdict is for the right person the appellate court will not reverse judgment unless error was committed materially affecting merits of action. Peterson v. Transit Co., 199 Mo. 331. (4) It is proper to make objections at the trial, to the competency, relevancy, etc., of any question or answer of a witness whose testimony is taken in the way of a deposition. Sec. 2906, R.S. 1899. (5) Where a judgment is manifestly right the court will not reverse, even if error were committed by the trial court. Mall v. Goodnight, 138 Mo. 577; Burns v. Liberty, 131 Mo. 378; Fitzgerald v. Barker, 96 Mo. 661; MacLeod v. Skiles, 81 Mo. 595; State ex rel. v. Edwards, 78 Mo. 477; Cartwright v. Culver, 74 Mo. 179; State ex rel. v. Boeppler, 63 Mo.App. 156. (6) Where upon the whole record it is manifest that the judgment is for the right party and the right amount it will not be reversed, though error was committed at the trial. State v. Bancroft, 1 Mo. 163; Crocker v. Mann, 3 Mo. 472; Jackson v. McGruder, 51 Mo. 55; Railroad v. Armstrong, 92 Mo. 265; Williams v. Mitchell, 112 Mo. 314; State ex rel. v. Jones, 131 Mo. 194; Fell v. Mining Co., 23 Mo.App. 225; Barrett v. Glover, 31 Mo.App. 157; Creek v. Waldron, 39 Mo.App. 26; Garasche v. Dean, 40 Mo. 168. (7) Where an erroneous ruling on evidence does not materially affect the merits of the action, the judgment will not be reversed. Hogan v. Railroad, 150 Mo. 50; O'Neil v. Kansas City, 178 Mo. 102; Sanders v. Bldg. & Loan Ass'n, 178 Mo. 681; Swope v. Ward, 185 Mo. 329; Bank v. Wells, 98 Mo.App. 573; Walker v. Cooper, 97 Mo.App. 448.
In Band.
IN DIVISION TWO.
-- This is an action for personal injuries alleged by the plaintiff to have been incurred by him in a wreck on defendant's railroad on the night of January 6, 1906. The case was tried in the circuit court of the city of St. Louis, and resulted in a verdict by nine of the jurors in favor of plaintiff, assessing his damages at the sum of four thousand dollars. From this verdict and the judgment which followed, defendant, after the usual motions for a new trial, and in arrest of judgment, appealed to the St. Louis Court of Appeals. The case was heard in the St. Louis Court of Appeals at the October term, 1909, and judgment rendered, and an opinion filed in said court on the 2nd day of November, 1909, affirming the judgment of the court, nisi, in all things. [See 143 Mo.App. 135.] But as Judge Reynolds, Presiding Judge of said St. Louis Court of Appeals, deemed the conclusions reached in the case on the controlling points involved herein, to be in conflict with the decisions of the Kansas City Court of Appeals in the case of Webb v. Metropolitan Street Railway Co., 89 Mo.App. 604, and the case of Highfill v. Railroad, 93 Mo.App. 219, the case was transferred to this court pursuant to section six of the Amendment of 1884 to our Constitution. Touching the matter of our jurisdiction to entertain it, and whether the case is rightfully here, is strenuously questioned by the respondent. This point will be fully considered in the opinion herein, and we need not do more here than to give it bare mention, and thus preserve it for further reference.
The only question raised at the trial was as to the extent of the injuries resulting to plaintiff, and the amount of compensation he was entitled to therefor. The injuries which plaintiff claims to have suffered, and a part of the resultant damages accruing, are thus set forth in his petition:
"That his person was caught and became pinioned in said wreckage for a long time; that thereby his ankle was sprained, his leg, knee and person, stomach and liver were, and have been wounded, crushed, bruised, cut, contused, both externally and internally, thereby greatly and permanently injuring him; that he was, and has been, confined to his bed and house by reason thereof for a long time; that by reason of said injuries he was, and has been, disabled and prevented from going to New York City, New York, for the purpose of buying supplies and goods to carry on the wholesale dry goods, merchandise and notions business in which he was engaged, to his great loss and damages; that he was, has been, and will be unable to give his ordinary and usual time, care and diligence to his business; that he was, has been and will be prevented from work, labor and service, thereby greatly impairing his earning capacity; that he did, has been, and will be compelled to...
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