Hemminghaus v. Ferguson

• Decision Date: 13 December 1948
• Docket Number: 40853
• Parties: George Hemminghaus, (Plaintiff) Appellant, v. Gerard P. Ferguson and Ewell L. Markland, doing business as Mack Electric Company, (Defendants) Respondents
• Court: Missouri Supreme Court

215 S.W.2d 481

358 Mo. 476

George Hemminghaus, (Plaintiff) Appellant, v. Gerard P. Ferguson and Ewell L. Markland, doing business as Mack Electric Company, (Defendants) Respondents

No. 40853

Supreme Court of Missouri

December 13, 1948

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Affirmed.

Everett Hullverson for appellant; Forrest Boecker of counsel.

(1) The damages awarded were so inadequate as to infer that the verdict was the result of either passion, prejudice or partiality, and the judgment should be reversed on that account. Grodsky v. Consolidated Bag Co., 324 Mo 1067, 26 S.W.2d 618; Ulrich v. Kiefer, 90 S.W.2d 140; Strange v. Ardison, 65 S.W.2d 115; Purkett v. Steele Undertaking Co., 63 S.W.2d 509; Fawkes v Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7; English v. Thrower, 146 S.W.2d 667. (2) The trial court erred in permitting counsel for defendant Ferguson to read into evidence statements from a book on traffic problems during the redirect examination of witness Reitter because the statements in the book are not competent, independent evidence. MacDonald v. Metropolitan St. Ry. Co., 219 Mo. 468, 118 S.W. 78; Wright v. Stickler, 96 S.W.2d 932; Whitley v. Stein, 34 S.W.2d 998; Cooper v A.T. & S.F.R. Co, 347 Mo. 555, 148 S.W.2d 773. (3) Plaintiff waived his privilege respecting condential information acquired by his physician, when he voluntarily testified on deposition respecting his injuries, his physical condition before and after the accident and named all the doctors who had knowledge of his condition before and after the accident. Epstein v. Penn. R. Co., 250 Mo. 1, 156 S.W. 699; Weissman v. Wells, 306 Mo. 82, 267 S.W. 400; State v. Cochran, 203 S.W.2d 707; Blankenbaker v. S.L. & S.F. Ry. Co., 187 S.W. 840; McPherson v. Harvey, 183 S.W. 53; Bouligny v. Metropolitan Life Ins. Co., 160 S.W.2d 475. (4) The deposition would be competent evidence at the trial since it could be read as an admission against plaintiff if the occasion required. Bogie v. Nolan, 96 Mo. 85, 9 S.W. 14; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Lewis v. St. Louis Ind. Pkg. Co., 3 S.W.2d 244. (5) It was error to draw an unfavorable inference from plaintiff's failure to produce a doctor who had on occasion attended him before the accident, who was himself sick and who had no knowledge of plaintiff's condition since some time before the accident, when plaintiff had waived his privilege as to that doctor's information, since that doctor was equally available to all parties. Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Raines v. Small, 169 S.W.2d 102; Nantron v. General Tile & Marble Co., 121 S.W.2d 246; Fitzgerald v. Thompson, 238 Mo.App. 546, 184 S.W.2d 198. (6) Under the circumstances stated in Paragraph (5), above, defendant could have taken the deposition of the physician in question, and it was error to deny plaintiff's counsel the right to so argue to the jury as an answer to opposing counsel's argument. Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062; Gilday v. Smith Bros., 226 Mo.App. 1246, 50 S.W.2d 191, conforming to 329 Mo. 198, 44 S.W.2d 57, quashing 32 S.W.2d 118; Thompson v. Morgan Hauling & Exp. Co., 26 S.W.2d 807. (7) Plaintiff made a submissible case against defendant Markland on the theory that the latter made a sudden and unexpected stop without adequate warning. Ritz v. Cousins Lumber Co., 227 Mo.App. 1167, 59 S.W.2d 1072; Setzer v. Ulrich, 90 S.W.2d 154; Matthews v. Mound City Cab Co., 205 S.W.2d 243. (8) This is true even though the case depends upon evidence in contravention to plaintiff's own testimony, since plaintiff's testimony in this regard comprises an estimate of time and distance which is a mere guess and not binding upon plaintiff, and plaintiff may base his case on other evidence. State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Goggin v. Schoening, 199 S.W.2d 87; Doty v. Fisher, 200 S.W.2d 534; Smith v. Producers Cold Storage Co., 128 S.W.2d 299.

Charles E. Gray and Chelsea O. Inman for respondent Markland.

(1) The evidence on the issue of the plaintiff's damages was contradictory and there were no circumstances demonstrating that the jury's verdict for the plaintiff was the result of passion, prejudice and partiality; therefore, the judgment should not be reversed on this alleged ground. Coghlan v Trumbo, 179 S.W.2d 705; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579, 34 S.W. 493; Bogess v. Metropolitan Street Ry. Co., 118 Mo. 328, 23 S.W. 159. (2) This being the situation, the real crux of the plaintiff's contention is that the verdict is against the weight of the evidence, which the Supreme Court cannot review. Coghlan v. Trumbo, 179 S.W.2d 705; Hunt v. Gus Gillerman Iron & Metal Co., 327 Mo. 893, 39 S.W.2d 369; Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; Nichols v. Bresnahan, 212 S.W.2d 570. (3) The alleged error of permitting counsel for defendant Ferguson to read excerpts from the book of traffic problems does not affect the question of damages at all, but was confined to the issues involved in the plaintiff's right to recover. Those issues were all found for the plaintiff. Therefore, the plaintiff cannot complain of alleged errors relating only to his right to recover. Mo. R.S.A., Sec. 847.123; Bogess v. Metropolitan Street Ry. Co., 118 Mo. 328, 23 S.W. 159; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050. (4) Before the privilege is waived the patient must voluntarily testify as to the medical treatments. Monpleasure v. American Car & Foundry Co., 293 S.W. 84; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89. (5) Statements made as to medical treatment on cross-examination are not voluntary, and even though not objected to cannot be construed as a waiver of the statutory privilege. Monpleasure v. American Car & Foundry Co., 293 S.W. 84; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89. (6) The testimony given by the plaintiff during the course of the deposition was not voluntary. Sec. 1894, R.S. 1939. (7) Since examination of the plaintiff during the course of the deposition was made under the rules of cross-examination, one of these rules being as stated in (5) above, the testimony of the plaintiff was not voluntary and did not constitute a waiver of his privilege as to his family physician (Dr. Stein). Sec. 1889, R.S. 1939; State ex rel. Williams v. Buzzard, 354 Mo. 719, 190 S.W.2d 907; Burnam v. Chicago Great Western R. Co., 100 S.W.2d 858. (8) Since the plaintiff failed to produce his family physician as a witness in his behalf, the physician not being available to the defendants, no error was committed in permitting counsel for defendant Ferguson, over the objection of plaintiff, to comment on such failure as evidence of the fact that, if said witness had been called, his testimony would have been adverse to plaintiff. McInnis v. St. Louis-Southern, Inc., 341 Mo. 467, 108 S.W.2d 113; Winkler v. Pittsburgh etc. Ry. Co., 321 Mo. 27, 10 S.W.2d 649; Chavaries v. National Life & Accident Co. of Tennessee, 110 S.W.2d 790. (9) Such comment was proper even though, as contended by plaintiff, the plaintiff had previously waived his privilege as to such physician, the physician still not being equally available to the defendants. McInnis v. St. Louis-Southern, Inc., 341 Mo. 467, 108 S.W.2d 113; Chavaries v. National Life & Accident Ins. Co. of Tennessee, 110 S.W.2d 790; State v. Collins, 350 Mo. 291, 165 S.W.2d 647; Deaver v. St. Louis Public Serv. Co., 199 S.W.2d 83. (10) Plaintiff's positive testimony that he saw defendant Markland's automobile stopping and had ample time to bring his automobile to stop short of a collision and remain standing an appreciable period of time before his automobile was struck by that of the defendant Ferguson, and the absence of any testimony that Markland's truck was stopped without adequate warning amounted to judicial admissions on plaintiff's part by which he is bound, and he cannot avail himself of the testimony of defendant Ferguson conflicting therewith. Mollman v. St. Louis Pub. Serv. Co., 192 S.W.2d 618; Elkin v. St. Louis Pub. Service Co., 74 S.W.2d 600. (11) The burden of showing that the alleged negligence of defendant Markland was the proximate cause of the resulting accident and injuries rested on the plaintiff and he had to make a sufficient showing to take the question of causal connection out of the realm of speculation and conjecture. This the plaintiff failed to do. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Krelitz v. Calcaterra, 33 S.W.2d 909; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (12) The term "proximate cause" as so used, is that which in the natural and probable sequence, unbroken by any new cause, produces the accident and resulting injuries, and without which the accident would not have occurred. Rose v. Thompson, 346 Mo 395, 141 S.W.2d 824; Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W.2d 736. (13) Since the plaintiff admitted that he had sufficient time to stop, that he remained so stopped for at least three seconds and long enough for anyone behind him to have stopped, the alleged failure of defendant Markland to give notice of his intention to stop could not have been the proximate cause of the accident and resulting alleged injuries and damages. Peterson v. United Rys. Co., 270 Mo. 67, 192 S.W. 938; DeWolf v. Stix, Baer & Fuller Dry Goods Co., 240 S.W. 1094; Krelitz v. Calcaterra, 33 S.W.2d 909. (14) The plaintiff having so testified positively and understandingly, he could not claim benefit of testimony of other witnesses, which is contradictory of his own testimony and at war with his own theory. Mollman v. St. Louis Public Serv. Co., 192 S.W.2d 618; Elkin v. St....