O'Leary v. Scullin Steel Co.

Decision Date11 February 1924
Docket NumberNo. 23504.,23504.
Citation260 S.W. 55,303 Mo. 363
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by John O'Leary against the Scullin Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The authorities in respondent's additional brief mentioned in the opinion are as follows: 11 R. C. L. 573, 574; 11 R. C. L. 583, 584, 585; 11 R. C. L. 586; Diehl v. Brick Co. (Mo. Sup.) 253 S. W. loc. cit. 990; Clooney v. Wells (Mo. Sup.) 252 S. W. loc. cit. 74, 75; Wright v. Iron Co. (Mo. App.) 250 S. W. loc. cit. 946; Robinson v. Railway Co., 103 Mo. App. loc., cit. 112, 113, 77 S. W. 493; Denver Ry. Co. v. Roller, 100 Fed. loc. cit. 751, 752, 41 C. C. A. 22, 49 L. R. A. 77; Transportation Line v. Hope, 95 U. S. loc. cit. 298, 24 L. Ed. 477; Chemical Co. v. Hogan, 213 Fed. loc. cit. 419 130 C. C. A. 52; Bowen v. Huntington, 35 W. Va. loc. cit. 691, 692, 14 S. E. 217; Miller v. Railway Co., 167 Mich. Ioc. cit. 29, 132 N. W. 483; Lovelady v. Railway a., 161 Ala. loc. cit. 496, 50 South. 96; Horst v. Lewis, 71 Neb. loc. cit. 379, 380, 98 N. W. 1046, 103 N. W. 460; Johnson v. Commonwealth, 111 Va. loc. cit. 879, 880, 69 S. E. 1104; Railway Co. v. Coy, 113 Ark. 265, 168 S. W. loc. cit. 1113; Traction Co. v. Roberts, 229 Ill. loc. cit. 483, 484, 82 N. E. 401; City of Chicago v. McNally, 227 Ill. loc. cit. 19, 81 N. E. 23; Kimbrough v. Chicago City Railway Co., 272 Ill. loc. cit. 78, 111 N. E. 499; Hanrahan v. City of Chicago, 209 Ill. App. loc. cit. 634, 635; Alpe v. Superior Coal Co., 208 Ill. App. loc. cit. 70, 71, 72, 73; Lynch v. Manufacturing Co., 167 N. C. loc. cit. 99, 100, 101, 83 S. E. 6; Baldwin v. Gaines, 92 Vt. 61, 102 Atl. loc. cit. 341, 342; Sullivan v. Railway Co., 167 Wis. loc. cit. 523, 525, 167 N. W. 311; Steburg v. Vincent, etc., 173 Iowa, loc. cit. 262, 263, 155 N. W. 337; Tullis v. Rankin, 6 N. D. loc. cit. 44, 45, 46, 47, 68 N. W. 187, 35 L. R. A. 449, 66 Am. St. Rep. 586; Holder v. Lumber Co., 161 N. C. loc. cit. 178, 76 S. E. 485; Zarnick v. Coal Co., 133 Wis. loc. cit. 300, 301, 302, 113 N. W. 752; Donnelly v. St. Paul City Ry. Co., 70 Minn. loc. cit. 280, 281, 73 N. W. 167; Peacock v. Zinc Co., 177 Wis. 510, 188 N. W. loc. cit. 644; Cochran v. Gritman, 34 Idaho, 654, 203 Pac. loc. cit. 295; Hanrahan v. City of Chicago, 289 Ill. 400, 124 N. E. loc. cit. 548, 549; Kelley v. Daily Co., 56 Mont. 63, 181 Pac. loc. cit. 331; Lemley v. Engine Co., 40 Cal. App. 146, 180 Pac. loc. cit 672; Roark v. Greeno, 61 Kan. loc. cit. 303, 304, 59 Pac. 655; Coke Co. v. Porter, 102 Ill. App. loc. cit. 469, 470; Fritz v. Tanning Co., 258 Pa. loc. cit. 185, 101 Atl. 958; Stouter v. Railway Co., 127 N. Y. loc. cit. 664, 665, 666, 27 N. E. 805; Bird v. HartParr Co., 165 Iowa, loc. cit. 544, 545, 146 N. W. 74; Wood v. Railway Co. 183 Ill. App. loc. cit. 548, 549; Ry. Co. v. Bennett, 39 Ind. App. loc. cit. 144, 145, 79 N. E. 389; Logan v. Society, 156 Mich. loc. cit. 542. 121 N. W. 485; Crozier v. Railway Co., 106 Minn. loc. cit. 78, 79, 118 N. W. 256; Parrish v. Railroad, 146 N. C. loc. cit. 127, 128, 59 S. E. 348; Power Co. v. Enslen, 144 Ala. loc. cit. 344, 345, 39 South. 74.

Kelley, Starke & Moser, of St. Louis, for appellant.

Oliver A. Fabick and Kurt Von Reppert, both of St. Louis, for respondent.


This is an appeal from a judgment for $12,500 in an action which respondent brought for damages for injuries he alleges he suffered by reason of the negligent lowering of a section of a mold or flask by one of appellant's crane operators.

The questions raised do not require a detailed statement of all the facts. The immediate injury suffered by respondent was the "pinching out" of a part of the flesh of the first joint of his right thumb. This received treatment, and appeared to heal. Soon after this injury a boil appeared above respondent's right wrist. Sometime thereafter it was discovered that just below the elbow an infection had set in which subsequently involved the upper part of the ulna, and necessitated a removal of the upper two-thirds of it. The principal issue seems to have been whether the boil or the injury to the thumb was the cause of the infection of the ulna. Other facts appear in connection with the discussion of questions to which they pertain.

I. Appellant secured from the court stenographer a transcript of the evidence, and made up its bill of exceptions, and delivered it to respondent's counsel for examination. Several days thereafter respondent's counsel served" notice that they would file objections to this bill. Thereafter counsel met with the judge, and respondent's objections were considered. After the discussion the trial judge retained the proffered bill for further consideration. A few days later he made several changes in the report of the testimony of Dr. Ross and that of Dr. Newman, and, without further notice, filed the bill as that of appellant. Subsequently appellant moved to set aside the order filing the bill. The motion was overruled. Thereafter a second motion to set aside was filed and sustained. The proposed bill was then presented to Judge Killoren, who had succeeded Judge Klene. He refused to sign it, and based his refusal upon that of Judge Klene. Later a bystanders' bill was presented to Judge Killoren. On the ground that the trial judge had rejected it, Judge Killoren refused to sign, and indorsed upon it the statutory certificate. This bill was then deposited with the clerk. Affidavits in support of the bill and in opposition to it were filed by the respective parties.

The corrections of the transcript contended for by respondent and allowed by the judge affected questions asked of experts. The bill as prepared by appellant showed that these questions called for the opinions of the experts as to whether the injury to respondent's thumb "caused" the infection and decay of the bone of his arm. The changes transformed these questions and answers so that the opinions appeared to have been given as to whether the infection could have been caused by the injury mentioned. This is characteristic of all the changes involved.

Two jurors signed the bystanders' bill. The other signer was the official reporter of the trial court. Affidavits of the stenographer, an expert witness, and of one of appellant's counsel were filed. Affidavits of both of respondent's counsel were filed. Judge Klene's affidavit was filed by respondent. The changes made were considerable in extent and radical character. The stenographer's notes are shown to be of a sort that can be read by any one skilled in the shorthand system he uses. They were tendered in support of the transcript he made. The evidence makes it clear that notes which would represent the words in the transcript as made by the stenographer could not be interpreted to represent the questions and answers as they stood after the changes were made by the judge, either exactly or in substance. There is no contention that the transcript the stenographer made is not an accurate interpretation or translation of the notes he made on the trial. The differences between the notes as taken and those necessary to represent even the substance of the questions and answers as changed by the judge are too radical and numerous to be accounted for on the theory that the stenographer merely erred in his taking notes of them. In fact, there seems to be no doubt that the stenographer must have deliberately written the questions and answers falsely, in shorthand at the time, if the corrections made by the judge are to be sustained. There are several other questions and answers of the same sort, open to the same objection, or supposed objection, which were not corrected or changed, and of which no complaint is now made by respondent, and to which no correction was suggested by the trial judge. This weakens somewhat the force of the suggestion that the trial judge had the rule, now relied on by appellant, in mind at all times, and would have sustained the objections based upon it if the questions and answers had been in the form shown by the stenographer's transcript. This suggestion is further weakened when it appears that respondent's counsel are confidently of opinion that the rule for which appellant contends is wholly inapplicable, even if the questions and answers were as certified by the stenographer. Objections were made, and are shown by the transcript, which are quite inapplicable if the questions were asked in the form to which the court changed them. The answers of Dr. Ross as shown by the transcript, and they are unchanged and unquestioned, are responsive to the questions as the stenographer shows them, and are not responsive to the changed questions. As the stenographer's transcript shows these answers, the witness gave his opinion that the injury to the thumb "caused" the infection of the forearm, and that the boil on the wrist was "a secondary infection, being from the injury to the thumb." No motion to strike this out as not responsive was made. The point had been and continued to be a hard fought one. In answer to another one of the questions in controversy, Dr. Newman gave his opinion that the bone infection "resulted" from the injury to the thumb. The question, as shown by the bystanders' bill, which follows the transcript, hypothesized certain facts and concluded: "_____ I will ask you, in your opinion, what caused the infection to the upper arm, requiring the removal of the ulna bone?" The court changed this to the following:

"_____, I will ask you, in your opinion (if?) the condition you found in the forearm requiring the removal of the ulna bone could have been caused by an infection setting in where the fleshy part was pinched from the thumb?"

The witness answered:

"I felt that the case was a pure case of ascending infection, in which the infection from the...

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