De Maire v. Thompson

• Decision Date: 11 July 1949
• Docket Number: 41092
• Parties: Frank De Maire, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Respondent
• Court: Missouri Supreme Court

222 S.W.2d 93

359 Mo. 457

Frank De Maire, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, Respondent

No. 41092

Supreme Court of Missouri

July 11, 1949

Appeal from Christian Circuit Court; Hon. Tom Moore, Judge.

Affirmed.

SYLLABUS

The facts and holding of the case are adequately summarized by the headnote.

Joe Crain, Sylvan Bruner, Sizer & Myres, Wm. J. B. Myres and Edward V. Sweeney for appellant.

(1) No prejudicial error was committed in the cross-examination of defendant's witness, B. F. Thomas, and the action of the trial court in granting defendant a new trial because of such cross-examination was unwarranted and constitutes reversible error. A trial court has no discretion to set aside a jury verdict and grant a new trial in absence of prejudicial error compelling such action. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Van Loon v. St. Joseph Ry Light, Heat & Power Co., 271 Mo. 209, 195 S.W. 737; Stark v. St. Louis Pub. Serv. Co., 211 S.W.2d 500; McDonald v. Heinemann, 141 S.W.2d 177. (2) The questions asked by plaintiff's counsel were proper to show the true situation that existed with respect to said hospital and to explain plaintiff's reasons for not going there. Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808; Larabee Flour Mills v. West Plains Comm. Co., 216 Mo.App. 257, 262 S.W. 389. (3) Plaintiff was entitled to wide latitude in cross-examination of this witness and was entitled to ask any question which tended to test his knowledge, accuracy, veracity, or credibility. The questions propounded by plaintiff went directly to the question of the witness' knowledge of the subject about which he had testified on direct examination and were entirely competent. Wendling v. Bowden, 250 Mo. 247, 161 S.W. 774; State v. Davis, 284 Mo. 695, 225 S.W. 707; Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808. (4) Counsel for defendant, during the trial of this case, when referring to the Missouri Pacific Hospital, spoke of it as an employee's hospital. In argument to the jury defense counsel said: "The employee's hospital is not the railroad company's hospital, it is the employees'. Those doctors -- they talk about being railroad doctors, they are employed by the employees of the Missouri Pacific." Plaintiff's cross-examination of the defendant's witness Thomas was competent to refute this contention of defendant. Such cross-examination tended directly to show that the hospital was in fact operated for the benefit of the defendant as much, or more, than for the benefit of the employees and that the hospital was, if not an alter-ego of the defendant, at least an agent thereof. Phillips v. St. Louis-S.F. Ry. Co., 211 Mo. 419, 111 S.W. 109; Snyder v. St. Louis Southwestern Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504; St. Louis Southwestern Ry. Co. v. Yates, 23 F.2d 283. (5) The ultimate purpose of any trial is to ascertain the truth regarding the matter on trial. The cross-examination of the defendant's witness Thomas was competent and proper to establish the true relationship existing between the defendant and the Missouri Pacific Hospital Association. Francis v. Terminal R. Assn. of St. Louis, 354 Mo. 1232, 193 S.W.2d 909; Bartlett v. K.C. Public Serv. Co., 349 Mo. 13, 160 S.W.2d 740; Redman v. Western & Southern Life Ins. Co., 187 S.W.2d 842. (6) Defendant made no objection to the question as restated and indicated no dissatisfaction therewith. Nowhere in the record does it appear that either the trial judge or defense counsel at any time during the trial regarded the question as being improper or prejudicial. Such being the state of the record, there was no error in the admission of said testimony to justify the granting of a new trial. Schipper v. Brashear Truck Co., 132 S.W.2d 993. (7) The testimony of plaintiff on cross-examination relative to his failure to go to the Missouri Pacific Hospital, and the testimony of defendant's witness Thomas regarding the hospital plan (even if it had been competent) could go only to the question of damages. It touches on no other issue. The court, in passing on defendant's motion for new trial, ruled that plaintiff's verdict was not excessive. O'Bauer v. Katz Drug Co., 49 S.W.2d 1065. Therefore, assuming (arguendo) that the question asked of witness. Thomas on cross-examination was erroneous, it was not prejudicially so, and consequently would not warrant a new trial, because the verdict was not excessive. State ex rel. Mo. Mutual Assn. v. Allen, 336 Mo. 352, 78 S.W.2d 862; McDonald v. Heinemann, 141 S.W.2d 177.

T. J. Cole and E. A. Barbour, Jr., for respondent.

(1) A trial court is to be given a wide discretion in passing on a motion for new trial and where the motion is sustained, the appellate court will be liberal in upholding the trial court's action, and such action will not be interfered with unless it appears that the court has abused its discretionary powers thus vested in it. Krinmeller v. Wipperman, 129 S.W.2d 43; Zesch v. Abrasive Co. of Philadelphia, 183 S.W.2d 140. (2) When a trial court has a reasonable doubt based on something or substance in the record as to whether or not there has been a fair trial, he should grant a new trial, the general rule being that the trial court must be finally satisfied with the verdict because of concurrence of the court with the jury is generally necessary in the administration of justice. Rickroad v. Martin, 43 Mo.App. 597; Peerless Fixture Co. v. Frick, 133 S.W.2d 1089. (3) The scope and extent of the cross-examination of a witness are matters largely within the discretion of the trial court and its rulings thereon will not be disturbed unless an abuse of discretion is shown. Bright v. Wheelock, 20 S.W.2d 684; Massman v. Muehlebach, 95 S.W.2d 808, 813; Tueteberg v. St. Louis Pub. Serv. Co., 41 S.W.2d 956; Neal v. Caldwell, 34 S.W.2d 104. (4) Prejudicial error was committed in the cross-examination of defendant's witness, B. F. Thomas, and the court was correct in granting a new trial for such prejudicial error because counsel for the plaintiff in framing said question violated the rule of law that questions must not assume the existence of facts which have neither been admitted or established in evidence. The record herein discloses that there was no evidence or admission of the facts on which the questions were asked. State v. Hudson, 259 S.W. 877; 2 Wigmore on Evidence, p. 2344; Bonslett v. New York Life Ins. Co., 190 S.W. 870; New York Life Ins. Co. v. Rankin, 162 Fed. l.c. 109. (5) The trial court has the right in the proper exercising of its discretional powers to grant a new trial on account of any erroneous ruling, whether excepted to or not. Noren v. American School of Osteopathy, 2 S.W.2d 215; Beer v. Martel, 55 S.W.2d 482. (6) If there was error in the record, a mere failure to except would not effect the trial court's power to grant a new trial. Schipper v. Brashear Truck Co., 132 S.W.2d 1000; Sakowski v. Baird, 69 S.W.2d 652. (7) There was evidence that the plaintiff had been advised by competent physicians that by going to a hospital and having an operation his injury would have been diminished. After such evidence, it was a question for the jury in order to minimize plaintiff's injury to pass upon whether or not plaintiff was negligent in not exercising ordinary care in the treatment of his injuries, undergoing an operation and following competent medical advice, and whether or not he would have benefitted by such operation and treatment. Lafayette Ward v. Ely Walker Dry Goods Co., 248 Mo. 348; Sneed v. Shapleigh Hardware Co., 242 S.W. 696. (8) "Court may order a new trial, when and for what reason. -- Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor." Code, Sec. 119, Laws Missouri, 1943, p. 389.

OPINION

Ellison, J.

The plaintiff appeals from an order of the circuit court of Christian county sustaining the motion for new trial of the defendant-respondent trustee of the Missouri Pacific Railroad Company, in plaintiff-appellant's suit for damages for personal injuries sustained while endeavoring, with the help of a co-employee, to close and latch the door of a sub-floor hopper on a railroad coal car at Cornell, Kansas. The jury had returned a verdict for $ 15,000 in favor of the appellant. Hence the appellate jurisdiction is in this court under Art. V, Sec. 3, Const. 1945.

We need not go into the details of the casualty, since only one point assigning error need be reviewed. This concerns the trial court's action in sustaining the motion for new trial on the ground that appellant's counsel had been guilty of prejudicial error in the cross-examination of the respondent's witness B. F. Thomas, a car inspector, concerning the Missouri Pacific Hospital Association, of which appellant was a dues paying member, and the practice of the hospital to disclose information concerning patients' condition to railroad claim agents. Appellant had pleaded in his petition extensive permanent injuries to his arm, neck and general system, and also enforced expenditures of large sums of money for medical attention, hospitalization, nurse hire and drugs. These cover nearly a full page of his petition as set out in the typewritten transcript here. Nearly seven pages of the transcript on his direct examination deal with his injuries.

The testimony for appellant was that his injuries consisted of severe and extensive inflammation and swelling in his right hand and arm, a lump or cyst on the back of his wrist kernels under his arm pit indicating infection of a nerve leading to his...