McQuary v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 17 February 1925
• Docket Number: 24095
• Citation: 269 S.W. 605,306 Mo. 697
• Parties: WILLIAM O. McQUARY v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

269 S.W. 605

306 Mo. 697

WILLIAM O. McQUARY v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

No. 24095

Supreme Court of Missouri

February 17, 1925

Appeal from Daviess Circuit Court; Hon. Arch B. Davis Judge.

Affirmed (upon condition).

Leopard & Son, Dudley & Brandom and J. G. Trimble for appellant.

(1) Defendant, in its opening statement, admitted liability and wished to show good faith by saying it was willing to compensate plaintiff for any injuries he might have received but the court refused to allow that statement. This could have only one effect -- prejudice the jury. (2) Plaintiff had testified to almost five months of constant, unusual day and night labor and exercise. It was error to permit him to put on testimony of boosting witnesses that he did no heavy work while out on his trips. He was not a "heavy work" man. (3) While the court made some attempt to keep plaintiff's wife within proper bounds, it was error to permit her to give her conclusions and expert opinions as to plaintiff's ability to work. Her statements as to the work plaintiff did or did not do were purely self-serving and hearsay. (4) The hypothetical question and the questions following addressed to the witness Beard were improper and it was wrong for the court, after overruling defendant's objection and seeing the error, to advise plaintiff's counsel how to change his question so as to prevent the improper testimony being stricken out. This was but another indication of the court's leaning. (5) Defendant having admitted liability, the cause of the wreck was not an issue in the case and as all the testimony of witnesses Cahalen and Kreigshauser as to condition of track was confined to points between where the wheels left the rails and the place where the cars turned over, the court erred in refusing to sustain defendant's motion to strike out their testimony. (6) The cause of the wreck was not an issue in the case. It was error for the court to give instructions 1, 2 and 4 on behalf of plaintiff defining the duties of defendant in regard to preventing wrecks and defining highest degree of care and preponderance of the testimony. (7) Plaintiff's given instruction numbered 3 was erroneous in that it gave to plaintiff's counsel a roving commission to say anything they chose regarding measure of damages and also gave a roving commission to the jury to assess damages, real or imaginary, in spite of the fact that the credible evidence in the case showed plaintiff was suffering from no injury received in the wreck. (8) Defendant's motion for a new trial should have been sustained because the verdict is against the weight of the evidence and is so excessive as to show the jury made no pretense of an attempt to be fair. This error cannot be cured by remittitur. Neff v City of Cameron, 213 Mo. 350, 366; Lebrecht v. Railways, 237 S.W. 112; Jones v. Railroad, 228 S.W. 780.

Miles Elliott, Lewis B. Gillihan and Duvall & Boyd for respondent.

(1) Appellant's contention to the effect that the court refused to permit counsel to state that the defendant was willing to compensate plaintiff is groundless. Counsel for appellant stated, "he was a passenger; we should pay him and are perfectly willing to pay him what is right." (2) The evidence showing plaintiff's condition, was clearly admissible and there was no error in its admission. (3) It would have been error to exclude the evidence of plaintiff's wife as to his condition and what he did with reference to performing physical labor before and after the receipt of his injuries. Such evidence was in no sense self-serving or hearsay. (4) There was no error in the hypothetical question as originally asked, but the court was clearly in the exercise of his judicial discretion in directing counsel for plaintiff to amend the question by inserting therein the word "occurrence" instead of the word "wreck." Besides no objection was made to the question as originally asked until after the same was answered. (5) There was no error in denying defendant's motion to strike out the testimony of the witnesses Cahalen and Kreigshauser. Under the pleadings and record liability was an issue. (6) There was no error in giving plaintiff's instruction number 3 on the measure of damages. That instruction was in an approved form. The court gave all instructions asked by defendant on the subject, and defendant is in no position to complain. Geismann v. Mo. Edison Elec. Co., 173 Mo. 664, 679; Smith v. Gordyce, 190 Mo. 30. (7) There was no error in overruling defendant's motion for a new trial. (a) The verdict is supported by the great preponderance of the evidence. (b) The verdict, considering the seriousness of plaintiff's injuries, is indeed a modest one.

OPINION

James T. Blair, J.

A car in which respondent was riding as a passenger left the track and rolled down an embankment, and he was injured. This is an appeal from a judgment for $ 22,500 in his favor.

The petition alleges the occurrence of the wreck and the injuries respondent suffered and the causal connection between the two. The answer was a general denial. In beginning his opening statement counsel for appellant told the jury he and his client could not account for the wreck "and therefore we are not going to account for it, so the only thing left for you in this is, how much should this man receive. That is all of it." Counsel then proceeded to detail what he said the evidence would show as to respondent's movements and work after his injury, and after some minutes of this he said: "I just want to say right here that if Mr. McQuary had been willing to accept a reasonable amount in settlement of this case " Mr. Boyd: "We object to that." Mr. Trimble: "This claim " The Court: "Wait a minute, Mr. Trimble. The objection is sustained." Mr. Trimble: "Your honor, I think we have a right to say we are willing to pay the man a reasonable amount at any time, and have been all the time, and are now." The Court: "In the opening statement the court will rule that you only have the right to state what you expect your evidence to show." Further details of respondent's movements were given and counsel then, without objection, closed thus: "Now, that will be the testimony. We have gotten that from the testimony Mr. McQuary has already given in his deposition, and a reasonable compensation for that man you are authorized to make. We don't -- he was a passenger; we should pay him and are perfectly willing to pay him what is right."

The evidence included the details of the wreck and incidents and conditions relevant to it. Appellant cross-examined as to these quite fully, but devoted its principal attention to matters it thought bore more directly upon the injuries respondent suffered. It was shown by respondent's testimony that he was in the advertising department of the International Harvester Company and was stationed at Quincy, Illinois. He was in charge of an advertising campaign in twenty-one and a fraction counties. Seventeen or eighteen of these were in Northeast Missouri. This advertising seems to have included demonstrations of implements and machines and explanations or lectures to individuals or groups who were interested enough to come to see the demonstrations and hear the lectures. Respondent had charge and did the talking, and while it seems not to have been a specifically imposed duty, yet he had been in the habit, when occasion required, of assisting in setting up machines which were to be displayed and explained. Appellant devoted much time on respondent's cross-examination to an apparent attempt to show that after his injury he went on as before and that his travels and work were conducted, in general, as they previously had been conducted. Respondent was permitted, on direct examination, to testify, without objection, that since his injury he had been unable to do any of the physical labor he had been accustomed to do theretofore and to detail incidents illustrating this. He was cross-examined by appellant's counsel with regard to certain statements in his deposition respecting the matter of his assisting in the physical work of setting up machines.

The deposition of A. D. Anderson, who had been with respondent on some of his trips after his injury, was read. His testimony that respondent did not assist in the handling or moving of heavy parts or pieces and that he, Anderson, did this himself or called other aid, was received without objection. This witness finally had been asked what if any work he saw respondent do during the trips when he accompanied him after his injury. He answered: "He did not perform any heavy duty with the exception we had small sacks, you know, to put the small parts in, spark plugs and such, and he would possibly help pack up those, but it would not weigh over ten pounds and that was the heaviest work that he did, was sacking up those parts." To the reading of this counsel objected on the ground "that the mere fact that he didn't do any heavy work is not indicative of injury and has nothing to do with this case, and anything that he might be doing there would be as much might be as much self-serving actions as well as if it had been selfserving statements made by him, and these having been done after the bringing of the suit." This was overruled.

Respondent's wife testified to her husband's health, strength and condition, and to manual labor he performed prior to his injury. She also testified to things which occurred after his injury which had a tendency to show that respondent's capacity for physical labor or exertion was impaired.

A hypothetical question was propounded to Dr. F. G. Beard which hypothesized the facts on respondent's theory and, after suggesting to the witness to take into consideration what he had...