De Maet v. Fidelity Storage, Packing & Moving Co.

• Decision Date: 30 November 1910
• Citation: 231 Mo. 615,132 S.W. 732
• Parties: DE MAET, v. FIDELITY STORAGE, PACKING & MOVING CO.
• Court: Missouri Supreme Court

132 S.W. 732

231 Mo. 615

DE MAET, v. FIDELITY STORAGE, PACKING & MOVING CO.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

Rehearing Denied December 23, 1910.

1. NEGLIGENCE (§ 78)—PROXIMATE CAUSE.

Even though decedent, when injured, was suffering from organic troubles which would have shortly caused her death, if defendant's negligence directly hastened her death, it is liable in damages therefor.

2. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREET—INJURIES—JURY QUESTION—PROXIMATE CAUSE OF INJURY.

Where decedent was apparently strong and healthy when she was struck by defendant's wagon in the street, but immediately went to bed and remained there until her death, after being injured, the fact that decedent was at the time suffering from organic diseases, which might at any time cause her death, did not make the question of whether defendant's negligence proximately contributed to her death so conjectural as to take that question away from the jury.

3. EVIDENCE (§ 506)—HYPOTHETICAL QUESTION.

A question to an expert witness was improper which required his opinion upon the exact question, which was for the jury to determine.

4. APPEAL AND ERROR (§ 232)—OBJECTION—QUESTIONS—SUFFICIENCY.

An objection that a witness was not qualified as an expert did not raise for review the question of whether the question asked the witness was improper, as requiring his opinion on the matter to be determined by the jury.

5. EVIDENCE (§ 544)—EXPERT TESTIMONY— QUALIFICATIONS OF EXPERTS—MEDICAL EXPERTS.

A physician who was a medical college graduate, and had practiced medicine regularly for eight years, was qualified to testify as an expert as to the cause of a death.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by Peter De Maet against the Fidelity Storage, Packing & Moving Company. Case certified to the Supreme Court by the St. Louis Court of Appeals on the ground of conflicting decisions, upon reversing a judgment for plaintiff. Judgment of trial court affirmed.

Henderson, Marshall & Becker, for appellant. John A. Talty, for respondent.

GRAVES, J.

This case is certified to this court by the St. Louis Court of Appeals. The principal opinion is written by Hon. Eugene C. Tittman, as a special judge, and concurred in by Bland, P. J. Plaintiff was the husband of Predentia De Maet, and as such brought suit for the alleged negligent killing of his wife by the defendant. Upon a trial in the lower court the plaintiff recovered. Upon a hearing in the St. Louis Court of Appeals, the judgment was reversed outright by the concurrence of the two judges aforesaid. Judge Goode, however, was of opinion that the plaintiff had made a case for the jury and dissented, and in such dissent, asked that the cause be certified to this court, on the grounds that the majority opinion was in conflict with the cases of Stafford v. Adams, 113 Mo. App. 717, 88 S. W. 1130, and Rattan v. Ry. Co., 120 Mo. App. 270, 96 S. W. 735. Vide De Maet v. Fidelity Storage, Packing & Moving Co., 121 Mo. App. 92, 96 S. W. 1045.

From the dissenting opinion of Goode, J., it appears that the case turns upon the facts somewhat more than the law. His contention is that, under certain facts detailed in his opinion, the case was one for the jury, and under those facts the majority ruling was adverse to the two cases cited. This reduces the question here to the force and effect of the facts shown, and the further question as to whether or not the two cases mentioned go as far as Judge Goode was of the impression they did go. And it might be added, that if they did so go, whether or not the cases declared the law. The facts upon both sides are discussed and stated in the two opinions. For brevity in this statement we refer to the opinions of the Court of Appeals, which should be examined for details. We, however, must go over more or less of the evidence in discussing the points made by counsel, as well as the point made in the dissenting opinion. Having this duty imposed, we leave the detailed facts to be discussed in the course of the opinion. This in a general way sufficiently states the case.

1. The principal opinion from the Court of Appeals plants itself upon the proposition that the trial court was in error in not sustaining a demurrer to the testimony. The petition charges that one of defendant's employés, in charge of and driving one of defendant's vehicles, negligently struck the wife of plaintiff, throwing her to the pavement, and inflicting such injuries as subsequently occasioned her death. Several disputed questions are suggested by the evidence, thus: (a) Was the driver upon that day in the actual service of defendant, or was he at the time using one of defendant's rigs in his own private business? There is proof both ways upon this question. (b) Another question is, whether the driver ran into plaintiff's wife, or plaintiff's wife ran into the vehicle. Upon this question the evidence is again conflicting. (c) Likewise the evidence tending to show negligence or no negligence upon the part of the driver is conflicting. (d) The same may be said of the evidence as to the alleged contributory negligence of deceased.

The principal opinion does not question the propriety of the judgment nisi, upon any of these questions, but says: "* * * The most that can be said for the plaintiff is that the whole evidence taken together shows that death resulted either from the injury received from the buggy, or from one of three chronic diseases of long standing, but which of these conditions was the cause can only be a matter of conjecture. For the foregoing reasons, in my opinion, the judgment of the lower court should be reversed."

The opinion, in effect, concedes...