Keehn v. D. R. F. Realty & Inv. Co.

• Citation: 43 S.W.2d 416,328 Mo. 1031
• Parties: Hilda Keehn v. D. R. F. Realty & Investment Company, Appellant
• Decision Date: 17 November 1931
• Court: United States State Supreme Court of Missouri

43 S.W.2d 416

328 Mo. 1031

Hilda Keehn v. D. R. F. Realty & Investment Company, Appellant

Supreme Court of Missouri

November 17, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed.

Wilbur C. Schwartz for appellant.

(1) Instruction 1 given at the request of the plaintiff on the measure of damages is erroneous, because it authorizes a recovery twice for the same injuries and loss. It directs the jury to allow plaintiff a reasonable compensation in paragraphs 1 and 2 for pain and suffering, past and future in paragraphs 4 and 5, for loss of earnings, past and future and paragraph 3 thereof directs an allowance to plaintiff for compensation "for such permanent injuries, if any plaintiff will suffer by reason and on account of the injuries, if any, sustained on the occasion in question." (2) The court erred in overruling defendant's objection to the argument of plaintiff's counsel to the effect that the defendant should have had plaintiff physically examined by a physician sooner than it did, that this was especially true because plaintiff brought the suit within three weeks after she was hurt. Said argument was erroneous and highly prejudicial, and was a misstatement of the law, for the reason that defendant did not have the right to have plaintiff physically examined. Bergfeld v. Dunham, 201 S.W. 641; Stubenhaver v. Railway Co., 213 S.W. 144; Atkinson v. Railway Co., 286 Mo. 634; Johnson v. Railway Co., 290 S.W. 465. (3) The court erred in overruling defendant's motion to discharge the jury after plaintiff had pretended to faint in the court room and was assisted from the room in the presence of the jury, and during the trial lay on a couch in the judge's chambers. There is nothing in the evidence tending to show that plaintiff's physical condition was sufficient to bring about any such scene in the presence of the jury, and it was all done to create an undue sympathy for plaintiff and prejudice against the defendant in the minds of the jury. Chawkley v. Railway Co., 297 S.W. (Mo. Sup.) 24; Stutz v. Milligan, 223 S.W. (Mo. App.) 129. (4) The verdict and judgment are excessive. Richardson v. Railway Co., 288 Mo. 258.

Mark D. Eagleton, John F. Clancy and Hensley, Allen & Marsalek for respondent.

(1) The court did not err in giving plaintiff's Instruction 1. (a) Said instruction cannot be construed as authorizing the allowance of double damages. Westervelt v. Transit Co., 222 Mo. 325; Coleman v. Rightmyer (Mo.), 285 S.W. 403; Laycock v. U. Rys. Co., 290 Mo. 344; Reynolds v. Transit Co., 189 Mo. 408; Beck v. Lumber Co., 210 Mo.App. 341; Garner v. Bridge Co. (Mo. App.), 194 S.W. 82; Hite v. Railroad Co. (Mo.), 225 S.W. 916. (b) While it is clear that the instruction is not subject to the criticism urged against it, it was defendant's duty to offer an instruction on the subject, if defendant's counsel thought it was indefinite. Coleman v. Rightmyer, supra. (2) The court did not err in overruling defendant's objection to comment by plaintiff's counsel during argument, regarding time when examination was made by defendant's medical witness. (a) Review on appeal of alleged errors during trial is limited to matters mentioned in motion for a new trial. Adams v. Kendrick (Mo. Sup.), 11 S.W.2d 16; Gary v. Averill (Mo. Sup.), 12 S.W.2d 749. (b) The range of argument is largely a matter of discretion with the trial court, and the Supreme Court will not interfere except in case of obvious abuse. Huckshold v. Ry. Co., 90 Mo. 548; Bishop v. Musick (Mo. App.), 2 S.W.2d 256. (c) Much latitude may properly be allowed in argument of counsel to jury. Dickinson v. Davis (Mo. App.), 284 S.W. 821. (d) In view of the testimony of defendant's witness, Dr. Barton, that in his examination of plaintiff he found no objective evidence of injury, it was entirely proper for plaintiff's counsel to argue that defendant waited until October, 1927, to get a doctor to make an examination when any other sensible man would have gotten the examination when it would show something. This was a legitimate argument and was within the evidence. City v. Construction Co., 273 Mo. 295; Smith v. Ry. Co., 208 Mo.App. 147. (3) The court did not err in refusing to discharge the jury because defendant's counsel claimed the plaintiff fainted in the court room. (a) The record does not show that plaintiff created a scene in the court room. The statement of defendant's counsel to that effect is no proof thereof, especially in view of the court's statement and ruling to the contrary. A party alleging error must show it clearly and affirmatively by the record, for error will not be presumed. Lamport v. Ins. Co., 272 Mo. 42; Roberts v. Lead Co., 95 Mo.App. 597; Glasgow v. Railroad, 191 Mo. 376. (b) The entire matter was one within the discretion of the court, which was not abused. Chawkley v. Ry. Co. (Mo. App.), 297 S.W. 25; Boyer v. Ry. Co. (Mo. Sup.), 293 S.W. 386. (4) The award of damages is reasonable, is based upon substantial evidence and should not be disturbed on appeal. (a) The evidence on this subject should be taken in its light most favorable to plaintiff, all conflicts in the testimony being settled by the verdict. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo.App. 710; Tucker v. Kollias (Mo. App.), 16 S.W.2d 649. (b) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation she was entitled to recover therefor. Hoover v. Ry. Co. (Mo.), 227 S.W. 79; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 261 S.W. 88. (c) The trial court, in supervising the amount of the verdict, exercises a discretionary power, which should not be reviewed on appeal except under the same conditions that obtain where other discretionary functions of the trial court are brought into question. 4 C. J. 830, 871; Goetz v. Ambs, 27 Mo. 28; Gurley v. Railroad, 104 Mo. 211; Laughlin v. Ry. Co., 275 Mo. 459. (d) The award is reasonable as compared with judgments affirmed in other cases for injuries resulting in conditions of approximately the same seriousness as in the present case. Brickell v. Fleming (Mo. Sup), 281 S.W. 951; Lewis v. Pack. Co., 3 S.W.2d 244; Aeby v. Railroad Co., 313 Mo. 492; Manley v. Wells, supra; Messing v. Drug Co., 18 S.W.2d 408.

Atwood, C. J. Gantt, Frank and Henwood, JJ., concur; Ragland, J., dissents in separate opinion in which White and Ellison, JJ., concur.

OPINION

ATWOOD

This is an appeal from a personal injury judgment for $ 15,000 in favor of Hilda Keehn and against D. R. F Realty & Investment Company, a corporation. The amended petition, upon which the case was tried, alleged that defendants, owned, possessed, controlled and operated a building known as the Francis Building, 1531 Washington Avenue, in the city of St. Louis, in which offices and space for various tenants were rented, and said tenants and their patrons, customers and employees were invited to come into said building; that defendants operated in said building elevators for the transportation of persons from floor to floor as a common carrier of passengers; that on or about June 8, 1926, plaintiff, at defendants' invitation, was a passenger in one of said elevators and while a passenger thereon said elevator dropped, jarred and jolted in an unusual and extraordinary manner and plaintiff was thrown about in said elevator and struck and was struck by parts thereof, all of which directly and proximately resulted from the carelessness and negligence of defendants, and plaintiff was injured thereby. Defendants' answer was a general denial and when the case came on for trial plaintiff dismissed as to all defendants except appellant herein.

Evidence introduced in behalf of plaintiff tended to show that defendant D. R. F. Realty & Investment Company owned and operated the building and elevator in question; that one of its tenants in said building was the Dunlap Millinery Company by which plaintiff was employed; that there were ten floors in the building and plaintiff worked on the ninth floor; that at about 5:30 o'clock in the afternoon of June 8, 1926, plaintiff and some other ladies employed by said millinery company took the elevator at the ninth floor of said building to be carried down to the first floor thereof; that the elevator came down at the usual rate of speed until it reached the fourth floor, and then dropped in a very unusual manner until it struck the bottom with great force and bounced up about two feet and back again to the bottom; that plaintiff was thrown against the back and floor of the car. Appellant does not claim that plaintiff failed to make a case for the jury, so further statement of the evidence will be made only to the extent necessary for a proper consideration of the assignment of errors now urged in this appeal.

Appellant's first point is that instruction numbered one given at the request of plaintiff on the measure of damages "is erroneous because it authorizes a recovery twice for the same injuries and loss." This instruction is as follows:

"1. The court instructs the jury that if under the evidence and the other instructions of the court, you find in favor of the plaintiff, then in assessing her damages you will allow her such sum as you believe and find from the evidence will fairly and reasonably compensate her:

"1st. For such pain and suffering of body and mind, if any plaintiff has suffered by reason and on account of her injuries, if any, suffered on the occasion in question.

"2nd. For such pain and suffering of body and mind, if any plaintiff is reasonably certain to suffer in the future by reason and on account of her injuries, if any, suffered on the occasion...