Appeal
from Jackson County Circuit Court.
OPINION
Paul
Barnett, J.
This
is a suit for personal injuries. Plaintiff sued the A. R
Jackson Kansas City Show Case Works Company and Nicholas
Gresafi jointly. The jury returned a verdict in favor of
defendant Gresafi and against the show case 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, Missouri
that the truck was loaded with certain products, including
panels, wall cases and show cases which were so loaded that a
show case projected over the right hand side of the truck;
that the defendants, by said servant, negligently drive the
truck without warning in such manner that is 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 employes of the show case 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. Show Case 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 show case company. Ferrara testified that during December
1925, he did all the hauling for the show case 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 show case 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 show case company owned
no trucks, but had an oral contract with Gresafi to do all
the hauling for the company for two hundred dollars 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 show
case 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
sings 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 show case 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 show case
company.
Gresafi
testified that Ferrara's job was to run the truck in the
service of the show case company and that Ferrara took orders
from the employes of that company. He was asked the question,
"And he was supposed to carry out their instructions in
making these deliveries - that is, the show case
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 show case 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 is excludes is the man's condition after the
accident, what he did within the next few days and therafter
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, nor, 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 conditions -- he related them in
the past year, didn't he?
Mr. Prewitt: The doctor related the condition he found him in
and treated him for in the past year. I promised this morning
I would connect up this swollen condition of feet and legs
and I was --
Mr. Blackmar:
...