McInnis v. St. Louis-Southern

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 113,341 Mo. 677
• Parties: J. C. McInnis v. St. Louis-Southern, Inc., a Corporation, and John Oertli, Defendants, St. Louis-Southern, Inc., a Corporation, Appellant
• Court: Missouri Supreme Court

108 S.W.2d 113

341 Mo. 677

J. C. McInnis v. St. Louis-Southern, Inc., a Corporation, and John Oertli, Defendants, St. Louis-Southern, Inc., a Corporation, Appellant

Supreme Court of Missouri

July 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge.

Reversed and remanded.

Thos J. Cole for St. Louis-Southern, Inc.

The court clearly erred in sustaining respondent's counsel's objection to the argument calling the attention of the jury to the fact that respondent had not produced Dr Wood, who had treated respondent for deafness prior to the accident. Evans v. Trenton, 112 Mo. 404; Willits v. C., B. & Q. Railroad Co., 221 S.W. 67; Atkinson v. United Rys. Co., 286 Mo. 641, 228 S.W. 483; McClanahan v. Railroad Co., 147 Mo.App. 411; Winkler v. Ry. Co., 321 Mo. 27, 10 S.W.2d 649; Waeckerley v. Colonial Baking Co., 67 S.W.2d 782; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1078; Porter v. C., B. & Q. Railroad, 325 Mo. 390, 28 S.W.2d 1035.

Eagleton, Waechter, Yost, Elan & Clark for respondent.

(1) There was no error in the action of the trial court in sustaining the objection to that argument of defendants' counsel which commented upon the failure of Dr. Wood to testify as a witness for plaintiff, Dr. Wood being equally available, as a witness, to either party. Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Winkler v. Railroad Co., 321 Mo. 27, 10 S.W.2d 649; Waeckerley v. Colonial Baking Co., 67 S.W.2d 779; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075; Rothschild v. Barck, 26 S.W.2d 760; Epstein v. Pa. Railroad Co., 250 Mo. 1, 156 S.W. 699; State v. Long, 257 Mo. 199, 165 S.W. 748; Weissman v. Wells, 306 Mo. 82, 267 S.W. 400; O'Brien v. Western Imp. Co., 141 Mo.App. 331, 125 S.W. 804; McPherson v. Harvey, 183 S.W. 653; R. S. 1929, sec. 1731. (2) There was no reviewable error in the action of the trial court in sustaining the objection to that argument of defendants' counsel which commented upon the conduct of plaintiff, and his counsel, with reference to X-ray specialists who were not involved in this case in any respect, because: (a) As witnesses, those specialists were manifestly as available to defendants as they were to plaintiff. Authorities under Point (1). (b) The comment by defendants' counsel that plaintiff, or his counsel, did not know the names of Drs. Titterington and Santi, had used them and had them in court, but did not know them in this case, was highly improper because it was beyond the scope of the evidence and the inferences and conclusions to be deduced therefrom. Kull v. Ford Motor Co., 261 S.W. 734; Harper v. Western Union Tel. Co., 92 Mo.App. 304; Robertson v. Wabash Railroad Co., 152 Mo. 382, 53 S.W. 1082; Huggins v. Hannibal, 280 S.W. 74. (c) The trial court did not abuse its discretion in restraining this character of argument. Gettys v. Am. Car & Foundry Co., 16 S.W.2d 85; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Grohman v. Maccabees, 237 S.W. 875. (d) The alleged error in this regard should not be reviewed by this court, it not having been properly assigned as error in the defendants' motion for a new trial. Bollinger v. Carrier, 79 Mo. 318; Sterrett v. Met. St. Rys. Co., 225 Mo. 99, 123 S.W. 877; Wilhite v. Armstrong, 328 Mo. 1064, 43 S.W.2d 422; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471. (3) In any event, the judgment of the trial court should be affirmed as rendered because there was no error in the trial which materially affected the merits of the case or prejudiced the appellant -- the appellant having admitted its liability, and the verdict and judgment are not in the least excessive. R. S. 1929, sec. 1062; Porter v. C., B. & Q. Railroad Co., 325 Mo. 381, 28 S.W.2d 1035; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Brennecke v. Ganahl Lbr. Co., 329 Mo. 341, 44 S.W.2d 627; Wenzel v. Bush, 259 S.W. 767; Bobos v. Krey Packing Co., 19 S.W.2d 630.

OPINION

Gantt, J.

Action for personal injuries. An automobile driven by plaintiff collided with a truck owned by John Oertli but driven by him in the service of St. Louis-Southern, Inc. Defendants admitted liability. The issue of damages was submitted to a jury. Judgment for $ 10,000 and defendant St. Louis-Southern, Inc., appealed.

The evidence for plaintiff tended to show that prior to the collision plaintiff was in good health, except an impairment of his hearing due to catarrhal condition. Plaintiff claimed serious injuries, including injury to ears. Defendant claimed no serious injury. Plaintiff had been treated by Dr. James M. Smith, an ear specialist from May, 1927, to May, 1932. In March, 1932, plaintiff called at Dr. Smith's home for consultation. The doctor was ill and plaintiff consulted Dr. V. V. Wood, another ear specialist. Dr. Wood was not called as a witness. The evidence with reference to treatment of plaintiff's ears follows:

"Q. Who was the first ear specialist you went to? A. Dr. James M. Smith, St. Louis.

"Q. When did you first see him? A. Along five or six years ago.

"Q. How long did you go to him? A. I don't remember. He treated my ears for quite a while.

"Q. Will you tell us the months or years? That is indefinite. A. I don't remember.

"Q. How much did you pay him? A. I don't remember that either.

"Q. Well, what did he finally tell you? A. Sir?

"Q. Did he discharge you and say that you were all right, or could not be cured, or what? A. He told me my ears would possibly get all right.

"Q. Then what did you do? A. I just left them alone.

"Q. You went home after Dr. Smith told you that? A. Yes, sir. After he treated them a while he told me they would be all right and wouldn't get any worse.

"Q. Then you went home and had no further treatment? A. What?

"Q. Did you have any further treatment? A. No, sir.

"Q. Did you go to any other doctors? A. Yes, sir.

"Q. Who? A. Sir?

"Q. What other doctor did you go to? A. I was talking to Dr. Anderson about it one day, and I asked him if he knew anybody that knew ears.

"Mr. Cole (Q): Did Dr. Anderson examine your ears? A. No, sir. He told me to see a specialist.

"Q. You told him you had been to a specialist, Dr. Smith, did you? A. I asked him if he knew anything about ears, and he said, 'I will tell you a man who will tell you about it.' He said, 'I know the man well, and if you want to go to St. Louis with me, we will see what he says about your ears.'

"Q. How long after Dr. Smith told you to go home did that occur? A. A couple of years.

"Q. After Dr. Smith discharged you your ears were still bothering you? A. No, sir; not bothering.

"Q. But you thought you would go to the doctor for them, anyhow? They were not causing you any trouble? A. What?

"Q. You went to the doctor even though they were not bothering you? A. I was a young man and didn't want to take any chances.

"Q. You went to another doctor that Dr. Anderson recommended? A. Yes, sir.

"Q. Who was that doctor? A. Dr. V. V. Wood.

"Q. Where is his office? A. In the Beaumont Building, Washington Ave.

"Q. Dr. Smith's office is where? A. Grand and Washington, the Humboldt Building.

"Q. Will you have those doctors in court -- Drs. Smith and Wood? You intend to have them here to tell the condition of your ears before the accident?

"Mr. Yost: Dr. Smith will be here.

"Mr. Cole: Will Dr. Wood be here?

"Mr. Yost: No.

"Mr. Cole (Q): What did Dr. Wood tell you? A. He said, 'If you leave your ears alone and nobody bothers them, your hearing will come back to you.'

"Q. What did he say was causing your ear trouble? A. He didn't say.

"Q. Didn't he tell you that you had a catarrhal condition that was causing your ear trouble? A. I don't remember if he did.

"Q. When your deposition was taken at Mr. Eagleton's office the 26th of March, 1935, I will ask you if this question wasn't asked you and this answer given: 'Did Wood ask you, Dr. Wood, ask you to come back? A. No; he said to go home, not treat my ears any more; that I had a catarrhal trouble with my ears.'

"Mr. Yost: I ask the whole answer to be read.

"Mr. Cole: I will read it. 'And he said to get that cleared up to stay out and get plenty of fresh air and take care of my ears, and eat the right kinds of food, that my ears may possibly come back; he said he wouldn't say perfect, but he thought they would come back to where I wouldn't have any more trouble.'

"Q. Did you make that answer to the question I asked you? A. Yes, sir.

"Q. Then Dr. Wood did tell you that you had catarrhal trouble? A. I said I didn't remember.

"Q. Did you tell me when I took your deposition that Dr. Wood told you you had catarrhal trouble with your ears? A. I possibly did. I don't remember.

"Q. Why did you go to Dr. Anderson about your ears? A. He just lived there and would be sitting around talking, and he was eating at the hotel with me."

Dr. James M. Smith testified for respondent (plaintiff), and the material parts of his testimony on the phase of the case here being discussed are as follows:

"Q. You know that he later went to Dr. V. V. Wood? A. Yes.

"Q. When did you learn that? A. Give me the record and I will tell you.

"The Witness: In March, 1932, I was confined to bed for seven months, and during that time he went to Dr. Wood for some treatment.

"Q. Was he treated by Dr. Wood? A. Very likely.

"Q. During the seven months? A. I was sick at the time. He came to my house in March, 1932, to consult me, and he went to Dr. Wood after that.

"Q. Dr. Wood is a good ear doctor, too? A. There is no better.

"Q. You don't know what Dr. Wood's conclusions were? A. No, I don't."

During the testimony of Dr. L. C. Boemer, an ear specialist produced by the appellant, the attorney for respondent asked him a hypothetical question and the following occurred:

"Mr Cole: That does not include all the elements.

"Mr. Yost:...