Gorman v. A. R. Jackson Kansas City Showcase Works Co.

• Decision Date: 20 May 1929
• Docket Number: No. 16613.,16613.
• Citation: 19 S.W.2d 559
• Parties: GORMAN v. A. R. JACKSON KANSAS CITY SHOWCASE WORKS CO.
• Court: Missouri Court of Appeals

19 S.W.2d 559

GORMAN v. A. R. JACKSON KANSAS CITY SHOWCASE WORKS CO.

No. 16613.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Rehearing Denied June 10, 1929.

Certiorari Denied August 2, 1929.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

"Not to be officially published."

Suit by Sam Gorman against the A. R. Jackson Kansas City Showcase Works Company and another. Judgment for plaintiff against defendant named, and for defendant Nicholas Gresafi, and the corporate defendant appeals. Affirmed.

Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, for appellant.

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

BARNETT, C.

This is a suit for personal injuries. Plaintiff sued the A. R. Jackson Kansas City Showcase Works Company and Nicholas Gresafi jointly. The jury returned a verdict in favor of defendant Gresafi and against the showcase company. The petition alleged that a servant of defendants drove a motor truck, which was owned, controlled, and operated by defendants, upon a public street in Kansas City, Mo.; that the truck was loaded with certain products, including panels, wall cases, and showcases, which were so loaded that a showcase projected over the right-hand side of the truck; that the defendants, by said servant, negligently drove the truck without warning in such manner that it struck plaintiff while he was walking on the sidewalk. Each defendant filed a general denial.

The plaintiff's evidence tended to show that he was injured as alleged. It showed that the driver of the truck was one Tony Ferrara, and that two employés of the showcase company, Hanson and Frederickson, were riding on the back of the truck, in order that they might watch the panels, as they were not tied and might slip. Ferrara was a witness for plaintiff. He testified that he worked for Nicholas Gresafi as a truck driver; that in December, 1925, the month of plaintiff's injury, he drove a truck that bore on each side the sign "K. C. Showcase Works Company." This truck belonged to Gresafi. The two signs had been placed on the truck by Ferrara and one Lundmark, who was shipping clerk for the showcase company. Ferrara testified that during December, 1925, he did all the hauling for the showcase company, and that during the daytime the truck would stand in front of the showcase works when it was not in use; that Mr. Lundmark gave him his orders as to when and where and what he was to do in connection with the truck; that he delivered products of the showcase company in various parts of the city. The truck was loaded by Ferrara and Lundmark, and it was necessary for Hanson to ride with the load, in order that he might assist the driver in unloading.

Defendants' evidence was to the effect that the showcase company owned no trucks, but had an oral contract with Gresafi to do all the hauling for the company for $200 per month. Gresafi was to furnish a truck and one man, and to buy the gasoline and oil for the truck. The president of the showcase company testified that he never gave any directions to Ferrara, and that none of the officers of his company had given any such directions in his presence. He testified that the signs were on the truck with his knowledge, and were the signs of the company's business. He contradicted Ferrara, who said that the signs had been put on the truck since Ferrara was employed. The president stated that the signs had been on the truck for two or three years, and that the orders as to the deliveries of the showcase company's products were given by Mr. Lundmark, the shipping clerk. The president further testified that, if an accident occurred while the company's products were being delivered, it was Ferrara's duty to report that fact to the showcase company.

Gresafi testified that Ferrara's job was to run the truck in the service of the showcase company, and that Ferrara took orders from the employés of that company. He was asked the question: "And he was supposed to carry out their instructions in making these deliveries — that is, the showcase company's instruction?" He answered: "They are his boss." He testified that he gave no orders to Ferrara; that he was not over at the showcase company's place of business at all.

During the examination of plaintiff's physician the plaintiff's attorney asked a hypothetical question, in which he attempted to enumerate the things, which, according to the evidence, bore upon the question as to whether plaintiff's disability was due to the blow he received when struck by the projecting panel upon the truck. The following then occurred:

"Mr. Blackmar: Objected to, for the reason it is an improper hypothetical question and calls for a conclusion and speculation of the witness and invades the province of the jury; it includes many things which are not in evidence and excludes things which are in evidence; some of the things that it excludes is the man's condition after the accident, what he did within the next few days and thereafter, and his previous condition; the size of the lump is not fixed; he says as large as a hen's egg or man's fist; that depends on whether you take Mr. Gorman's size or Mr. Cleveland's size; there is no testimony here with reference to puncturing of the ear; and no testimony here that he was knocked to the sidewalk; the testimony, on the contrary, is he says he was knocked to his knees.

"Mr. Prewitt: He said he was knocked to his knees, Mr. Gorman said, on the sidewalk.

"Mr. Blackmar: It excludes the ability of Sam Gorman to recognize or identify a man whom he had never seen before.

"The Court: You may add any facts you want to, to the facts given, that you think are in evidence and that should be added to it. Do you want to add any facts?

"Mr. Prewitt: We will adopt any facts you may care to add, and also adopt the facts you have already suggested.

"Mr. Blackmar: I object to the form of the question, as not a proper hypothetical question and argumentative.

"The Court: What facts do you want to add?

"Mr. Blackmar: Those I enumerated.

"Mr. Prewitt: We incorporate them into the question. (Court here conferred with both counsel, in a low tone.)

"The Court: Do you want to add anything else to this question?

"Mr. Blackmar: I have specified all the —

"Mr. Prewitt (interrupting): We adopt all the matters you specified.

"The Court: Add to the question also that he was deaf in the right ear, and had been deaf several years before this.

"Mr. Prewitt: I told him that already.

"The Court: Doctor, the question is whether, taking into consideration all these facts; now reform the last part, Mr. Prewitt.

"Q. (Mr. Prewitt, resuming). Having all those facts in mind that I have given you, and that Mr. Blackmar suggested (and which we adopt), I want you to tell the jury and the court whether or not, in your opinion, this condition you found him suffering from when you first saw him January, 1926, could have come from the accident I have described here? A. Yes.

"Mr. Blackmar: I renew my objection, for the reason I have assigned, and I still object to the form of the question.

"The Court: Objection overruled. (To which ruling of the court the defendant excepted at the time, and still excepts.)

"A. Yes, sir, it could.

"Q. Now, doctor, having that same hypothetical situation I described plus the things Mr. Blackmar added to the question, I want you to tell the jury and the court whether or not the condition that he suffered here in March and April, 1926, to his legs and knee and ankle joints, and the swelling that you have described, in your opinion, could come from the accident or blow he received in December, 1925, that I have described.

"Mr. Blackmar: I object to the question, as not a proper hypothetical question, not in proper form; it calls for the conclusion and speculation of the witness, invades the province of the jury, and excludes the man's condition of health throughout the past year.

"Mr. Prewitt: I want you to have in mind the man's health during the past year and he having been under your care and treatment during that entire period.

"The Court: And his age and history as he related it to you.

"Mr. Blackmar: I further object to the question now, as based upon matters not in evidence.

"Mr. Prewitt: Point out any not in evidence, and we will withdraw it.

"Mr. Blackmar: I cannot — because the question is so indefinite and uncertain, I can't.

"Mr. Prewitt: If there is anything in it that is not in evidence you must know what it is, and we will withdraw it.

"The Court: Do you want to add anything to the question?

"Mr. Blackmar: I don't think so. I think the question is based on matters not in evidence.

"The Court: Assuming everything he detailed — the question assumes everything he detailed in his first question, also all additions you added to it — if there is anything else you want to add, you may have an opportunity to do it.

"Mr. Blackmar: Have you in mind the things I added to it?

"The Witness: I think so.

"Mr. Blackmar: What are they?

"The Witness: You said there was no evidence of perforation of the ear, and that there was no evidence he was knocked to the sidewalk; those are two of the things I think you objected to.

"Mr. Blackmar: I make the further objection to the question that it is now very apparent the doctor can't answer the question, because I want him to indicate again —

"The Court: Indicate what you added to what Mr. Prewitt said, that you said you wanted the doctor to take into consideration.

"Mr. Blackmar: The question which I understand is before the court deals with his condition within the past year; my objection to that is there is no evidence included in the question and on which to base any such hypothetical question.

"The Court: You mean no such evidence in the past year?

"Mr. Blackmar: Yes.

"The Court: He testified to his condition the past year. If there is any doubt about that, after he gets through, you better — you have got the...