Gricus v. United Railways Company of St. Louis
| Decision Date | 09 February 1922 |
| Parties | EMILIA GRICUS v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.
Reversed and remanded (with directions).
Charles W. Bates and T. E. Francis for appellant.
(1) The ruling of the court, rejecting evidence by plaintiff's physician concerning complaints of pain made to him by plaintiff, was not reversible error, for the reason that the witness was subsequently permitted to fully testify regarding his own knowledge of the pain suffered by plaintiff. Locke v. Independence, 192 Mo. 572; Roe v Bank, 167 Mo. 421. (2) The court did not err in refusing to allow plaintiff's doctor to testify that "plaintiff was in very bad shape," for the reason that the testimony was a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. Moreover, the witness was subsequently permitted to fully state the facts from which he drew the conclusion that plaintiff was "in bad shape," and this cured the error, if there were such. Locke v. Independence, 192 Mo. 572; Roe v Bank, 167 Mo. 421. (3) The court did not err in refusing to permit plaintiff's doctor to testify that "her womb was still enlarged and she is suffering from all the effects of a chronic septicemic condition," or that "she is despondent and it seems impossible for her to do any work," for the reason that this alleged condition was in the nature of special damages and was not pleaded nor shown to be the necessary result of the injuries pleaded. Hall v. Coal & Coke Co., 260 Mo. 370. (4) The court did not err in refusing to allow Mrs. Burke to testify that, immediately after the collision, "plaintiff couldn't get up," for the reason that the testimony was a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. (5) Nor in refusing to allow Mrs. Burke to testify that, immediately after the collision, "witness asked plaintiff to stand up and she said she couldn't," for the reason that the testimony was hearsay. Plaintiff's alleged statement, "that she couldn't stand up," was not a spontaneous exclamation of pain, so as to be admissible as part of the res gestae, within the rule announced in Lindsay v. Kansas City, 195 Mo. 180, but was res inter alios acta and hence inadmissible. Moreover, the witness proceeded to testify that plaintiff was assisted to arise, from which the jury could draw the inference, instead of taking plaintiff's second-hand conclusion, that she was unable to get up unassisted, and hence the error, if any, was cured. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. (6) The court did not err in refusing to allow Mrs. Burke to answer the question, "Did she [plaintiff] need any assistance in getting up the step?" for the reason that the testimony would have been a statement of a mere conclusion. Masterson v. Transit Co., 204 Mo. 522. Moreover, the witness was subsequently permitted to tell what she did toward giving plaintiff assistance, and this cured the error, if there were such. Locke v. Independence, 192 Mo. 572; Roe v. Bank, 167 Mo. 421. In addition to this, the ruling is not reviewable, for the reason that plaintiff made no tender of proof. Powell v. Railroad, 255 Mo. 446. (7) The court did not err in refusing to allow Mrs. Burke to testify "that plaintiff was always well," prior to the collision, for the reason that the testimony was the statement of a mere conclusion. (8) The court did not err in sustaining the objection to the question propounded, in crossexamination, to Dr. Pritchard, a witness for defendant, as to whether or not a shock can cause a miscarriage, for the reason that the petition pleads that plaintiff suffered a miscarriage as a result of certain injuries specifically pleaded, of which shock is not one. Hall v. Coal & Coke Co., 260 Mo. 370; Degonia v. Railroad, 224 Mo. 600; State ex rel. v. Ellison, 176 S.W. 13; State ex rel v. Ellison, 270 Mo. 651. (9) In view of the fact that the jury found, on conflicting evidence, that defendant was not liable, the exclusion of evidence offered by plaintiff, which related merely to the nature and extent of her alleged injury, could not have been prejudicial to her, and hence the court erred in granting her a new trial on the ground that it had erroneously rejected evidence offered by her, even if it were true that such rulings were erroneous. Stark v. Pub. Knapp & Co., 160 Mo. 529, 550; Donaldson Bond Co. v. Houck, 213 Mo. 416, 441; Chapman v. Railroad, 240 Mo. 592, 601; Herman v. Railway Co., 144 Mo.App. 147; Hayden v. Gravel Co., 186 S.W. 1193; Schlaifer v. Railroad, 152 N.W. 370; Lewis v. Wallace, 82 So. 127; Oak Island Hotel v. Oak Island Grove Co., 165 Mass. 260; Laurens Tel. Co. v. Bank, 90 S.C. 50; Conant v. Jones, 120 Ga. 568; Carroll v. Boston Elev. Ry., 200 Mass. 527; Geary v. Stevenson, 169 Mass. 23; Fraser v. St. Ry. Co., 146 Cal. 717; McNeil v. St. Ry. Co., 123 N.E. 676.
Hall & Dame and D. M. Robinson for respondent.
(1) The trial court did not err in granting plaintiff a new trial on the ground that the court erred in excluding evidence touching representations made by plaintiff to Dr. Wolter concerning her pain and suffering. Greenleaf on Evidence (Lewis Ed.), sec. 102; McHugh v. Transit Co., 190 Mo. 95; Lindsay v. Kansas City, 195 Mo. 166; McMahon v. U. R. Co., 203 S.W. 500; Holloway v. Kansas City, 184 Mo. 38; Fellhauer v. Railroad, 191 Mo.App. 137. (2) The trial court did not err in granting plaintiff a new trial on the ground that the court erred in excluding evidence of Mrs. Burke concerning representations made by plaintiff to her concerning her pain and inability to get up immediately after the collision. Greenleaf on Evidence (Lewis Ed.), sec. 102; McHugh v. Transit Co., 190 Mo. 95; Lindsay v. Kansas City, 195 Mo. 181; McMahon v. U. R. Co., 203 S.W. 500; Holloway v. Kansas City, 184 Mo. 19, 38; Fellhauer v. Railroad, 191 Mo.App. 137. (3) The trial court did not err in granting plaintiff a new trial on the ground that the court erred in excluding evidence of plaintiff having received a shock as a result of the collision which caused a miscarriage. Hack v. Dady, 142 N.Y. App. 510; Purcell v. St. Paul Ry. Co., 48 Minn. 134; Coultus v. Victoria Ry. Co., 12 Vict. L. R. 895; Heiberger v. Tel. Co., 133 Mo.App. 452; Louisville & Nashville Railroad v. Roney, 127 S.W. 158. (4) As the trial court concluded the verdict was unjust, it had the right, and it was its duty, to grant a new trial, and the trial court should be encouraged in the performance of that duty by this court. Reid-Murdock & Co. v. Lloyd & Moorman, 61 Mo.App. 646; Rickroad v. Martin, 43 Mo.App. 597; McCarty v. Transit Co., 192 Mo. 396, 401; Devine v. St. Louis, 257 Mo. 470, 475; Taylor v. Gulf Ry. Co., 163 Mo. 183, 191; Lorenzen v. Railroad, 249 Mo. 182, 187; Iba v. Ry. Co., 172 Mo.App. 141. (5) The trial court did not err in granting plaintiff a new trial, and its order granting a new trial should, therefore, be affirmed, for the reason that it erred in giving Instruction 10 on behalf of defendant, since said instruction directed the jury that they must not assess any damages for any bruised back, or for any bruises of the spinal column. (a) Plaintiff's petition alleged her back and spinal column were bruised; (b) plaintiff testified that the collision bruised her back and her spinal column; and (c) Dr. Wolter testified that plaintiff's back was injured.
In Banc.
-- This is an appeal from an order granting a new trial after verdict for defendant in an action respondent brought for damages for injuries she alleges she received in a collision between two of appellant's cars, on one of which she was riding as a passenger. The injuries alleged are bruises and contusions upon the hip, side and back; a straining of the muscles and tendons of the back; bruises and a straining of the spinal column; and a miscarriage, which induced nervous shock, headaches and insomnia. There was evidence tending to prove respondent was, while a passenger, injured in a collision as alleged, and evidence to the contrary which tended to show that the impact of the collision was so slight that injury could not have resulted to respondent therefrom. There was also other evidence from which the jury might have found that the miscarriage alleged did not result from the collision. The jury found against respondent on the facts. The court sustained the motion for new trial on the ground that error had been committed in certain rulings excluding testimony.
In this court respondent contends the order should be sustained on the grounds assigned by the trial court, and also because of the refusal of Instruction 10 requested by her counsel.
I. A physician who attended respondent two days after the collision occurred testified she complained of pain in the side, back and head and of a "bearing down like sensation." Upon objection this testimony was stricken out. The witness followed this with a detailed statement of what he determined to be respondent's actual condition as disclosed by an examination he made. He said he made a very careful examination of her and found her very nervous and suffering very much; that there was a slight contusion on the left side and also on the left hip and considerable tenderness over the back; that he discovered this from manipulation; that she shrank and gave indications of pain when the parts were manipulated; that she told him of suffering bearing down pains, and he gave her morphine to ease that; that he took her word for her nervous condition and gave her a sedative. He also testified fully concerning the evidence of a miscarriage and its effects. Respondent also testified as...
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