Gricus v. United Rys. Co. of St. Louis

• Decision Date: 09 February 1922
• Docket Number: No. 22032.,22032.
• Citation: 237 S.W. 763,291 Mo. 582
• Parties: GRICUS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

237 S.W. 763

291 Mo. 582

GRICUS v. UNITED RYS. CO. OF ST. LOUIS.

No. 22032.

Supreme Court of Missouri, in Banc.

February 9, 1922.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Emilia Gricus against the United Railways Company of St. Louis. Verdict for defendant. From an order sustaining a motion for new trial, defendant appeals. Reversed and remanded, with directions.

Charles W. Bates and T. E. Francis, both of St. Louis, for appellant.

Hall & Dame and D. M. Robinson, all of St. Louis, for respondent.

JAMES T. BLAIR, C. J.

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 case 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 to her injuries, and sufferings.

The real contest in this case was upon the question whether respondent was injured at all in the collision in question. On the record it is not surprising that the jury found she was not. That is what the verdict means. Even if it were held that it was error to exclude complaints when the witness, a physician, who is offered to prove them, testifies that the conditions the complaints tend to prove did in fact actually exist and were disclosed to him in the course of a professional examination he made, yet the evidence was, in the circumstances, merely cumulative evidence of the amount of damage suffered, and its exclusion cannot be relied upon as error, when the jury found that respondent suffered no injury at all through any fault of appellant. In some circumstances the nature of an Injury may tend to prove the cause of action. Orris v. C., R. I. & P. Ry. Co., 279 Mo. 1, 214 S. W. 124; Hat. chett v. United Eys. Co. (Mo. Sup.) 175 S. W. 878. This is not such a case. The jury never reached the question of damages. Stark v. Pub. Co., 160 Mo. loc. cit. 550, 61 S. W. 669; Hermann v. Ry., L. H. & P. Co., 144 Mo. App. loc. cit. 154, 129 S. W. 414; Hayden v. Gravel Co. (Mo. App.) 186 S. W. loc. cit. 1194, 1195. Numerous decisions from other states which announce the same doctrine are cited by counsel. In the circumstances it appears the ruling referred to was in no way prejudicial to respondent. The same principle applies to some of the rulings discussed in succeeding paragraphs.

II. There was no error in excluding the physician's testimony that he found respondent "in a very bad shape." It was a generalization. The physician then gave all the details of respondent's condition as he found it, and upon which he had based the excluded statement.

III. There was no error in excluding Mrs. Burke's statement that the reason she did not leave the car at once was because "Mrs. Gricus couldn't get up." This was merely a conclusion. The witness subsequently testified to all the relevant facts relating to the question whether respondent "could get up." The same ruling must be made as to the exclusion of Mrs. Burke's testimony that she ask...