O'Leary v. Scullin Steel Company
| Decision Date | 22 March 1924 |
| Docket Number | 23504 |
| Citation | 260 S.W. 55,303 Mo. 363 |
| Parties | JOHN O'LEARY v. SCULLIN STEEL COMPANY, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied March 22, 1924.
Appeal from St. Louis City Circuit Court; Hon. Benjamin J Klene, Judge.
Reversed and remanded.
Kelley Starke & Moser for appellant.
(1) The bill of exceptions which was prepared by the official stenographer and presented to the court for allowance was improperly rejected, and the bystanders' bill of exceptions deposited by the defendant in the clerk's office in consequence of the court's refusal to sign and allow said bill of exceptions and permit the same to be filed, is complete and true and a proper bill of exceptions. The truth of said bill of exceptions is to be determined by this court from the affidavits filed in support of and against said bill of exceptions. Secs. 1460 to 1468, R. S. 1919; Buck v. Union Trust Co., 267 Mo. 644. (2) The court erred in permitting witness Schuster, over the objection and exception of defendant, to testify that Walsh told said Schuster that U. Johnson (the crane man) could not do the work with the crane, for the reason that said testimony was hearsay; and since Johnson's competency was an issue in the case the improper admission thereof was prejudicial to the rights of this defendant. (3) The court erred in permitting plaintiff's expert witnesses to testify that in their opinions the condition that plaintiff suffered from was caused by the alleged injury to his thumb and not by the boil or carbuncle which defendant contended plaintiff was suffering from. Said questions called for answers invading the province of the jury, and the answers made by said witnesses in response to said questions determined a vital issue in this case which it was the sole province of the jury to decide. Smart v. Kansas City, 208 Mo. 162, 201; Glasgow v. Metrop. Str. Ry. Co., 191 Mo. 347, 358; Castanie v. United Railways Co., 249 Mo. 192; Taylor v. Grand Avenue Railway Co., 185 Mo. 239, 255. (4) The court erred in giving plaintiff's instruction number 1, for the reason that said instruction erroneously assumes as true certain facts that were in issue and fails to require the jury to find that plaintiff's alleged injuries were caused by defendant's alleged negligence. Miller v. Bussey, 186 S.W. 985; Ganey v. Kansas City, 259 Mo. 654, 663; Dowling v. Allen & Co., 88 Mo. 293, 296; Neeley v. Snyder, 193 S.W. 610; Abbott v. Mining Co., 112 Mo.App. 556; Priebe v. Crandall, 187 S.W. 607; Baker v. Independence, 106 Mo.App. 511; Burrows v. Likes, 180 Mo.App. 447; Gessner v. Railway Co., 132 Mo.App. 584; Clark v. Terminal Railway Co., 242 Mo. 570; State ex rel. v. Morrison, 244 Mo. 212; Crow v. Railroad, 212 Mo. 610. (5) The court erred in giving plaintiff's instruction number 2, for the reason that said instruction erroneously assumes that the crane operator therein mentioned was not reasonably skillful or competent. Authorities, supra.
Oliver A. Fabick and Kurt Von Reppert for respondent.
(1) The truth of the bystanders bill of exceptions is to be determined by this court from the affidavits filed in support of and against the said bill of exceptions. And where there is an irreconcilable conflict between the opposing affidavits, the certificate of the trial judge will prevail. Buck v. Union Trust Co., 267 Mo. 644; 4 C. J. 244, 257, 258; State v. Howell, 117 Mo. 310; State ex rel. v. Taylor, 134 Mo.App. 440; State ex rel. v. Thayer, 15 Mo.App. 391; State ex rel. v. Wickham, 5 Mo.App. 301. (2) The admission of the evidence of the witness Schuster as to what was said to him by the witness Walsh was competent on the theory that it tended to show knowledge on the part of the appellant. The witness Schuster was a vice-principal of the appellant. The question merely called upon the witness to particularize the complaints made by another vice-principal (Walsh) in order to show the occasions, character and extent of knowledge on the part of the appellant concerning the crane operator's unskillfulness, and therefore was competent. (3) The court did not err in permitting the physicians attending the respondent to testify what in their opinion caused the infection they had described in the forearm requiring the removal of the ulna bone, and further that in their opinion the infection started at the injury at the base of the thumb. Under the facts in this case and the answer of appellant, these questions were competent and proper. Mummaw v. Tel. & Tel. Co., 208 S.W. 478; Bragg v. Metrop. St. Ry. Co., 192 Mo. 341; McCaffery v. Railway Co., 192 Mo. 160; Veiss v. United Ry. Co., 184 Mo.App. 39; Jerome v. United Ry. Co., 155 Mo.App. 206; Wood v. Railroad, 181 Mo. 441; Holden v. Railroad, 108 Mo.App. 669; Witty v. Traction Co., 153 Mo.App. 432; Torreyson v. United Ry. Co., 246 Mo. 703; Torreyson v. United Ry. Co., 164 Mo.App. 371; Torreyson v. United Ry. Co., 144 Mo.App. 635; Monroe v. United Ry. Co., 154 Mo.App. 69; Rogers on Expert Testimony (2 Ed.) pp. 121, 122. (4) Instruction number one requires the jury to find every essential fact entitling plaintiff to recover. There was no serious contention that the fleshy part of respondent's right hand was pinched out. The appellant's own dispensary records established said fact. It was not contested that the crane operator, Johnson, did not possess reasonable skill or competency with reference to operating the crane at the time of respondent's injury, nor that the appellant knew that fact. Brown v. Lumber Co., 209 S.W. 310; O'Hare v. Railway Co., 95 Mo. 662; Williams v. Railway Co., 109 Mo. 475. It is the objection to instruction number one that it did not require the jury to find that the appellant was guilty of any negligence. This was not an error, because all that was necessary in the instruction was to submit to the jury, as facts to be found by them, such facts which, under the law, constituted negligence, without requiring that they find they were negligently done. McCaffery v. Railway Co., 192 Mo. 155; Luckel v. Century Building Co., 177 Mo. 626. (5) Instruction number four, given on behalf of respondent on the measure of damages, was proper and has been repeatedly approved. Powell v. Railroad, 255 Mo. 452; Gayle v. Mo. Car & Foundry Co., 177 Mo. 453; Torreyson v. United Ry. Co., 164 Mo.App. 376; Torreyson v. United Ry. Co., 246 Mo. 707.
JAMES T. BLAIR, J. All concur; Woodson, J., in all except paragraph III, as to which he dissents.
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 endorsed 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. This 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 in 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...
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