Oesterle v. Kroger Grocery & Baking Co.

• Decision Date: 28 June 1940
• Docket Number: 36282
• Citation: 141 S.W.2d 780,346 Mo. 321
• Parties: Charles W. Oesterle v. Kroger Grocery & Baking Company et al., Appellants
• Court: Missouri Supreme Court

141 S.W.2d 780

346 Mo. 321

Charles W. Oesterle v. Kroger Grocery & Baking Company et al., Appellants

No. 36282

Supreme Court of Missouri

June 28, 1940

Motion for Rehearing Overruled June 28, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Michael J Scott, Judge.

Affirmed.

Wayne Ely for appellants; Leahy, Walther, Hecker & Ely of counsel.

The court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of plaintiff. It was reversible error to permit Dr. Arthur H. Deppe to testify to opinions based upon the history of plaintiff's case as given to him by the plaintiff. Dr. Deppe testified that he did not examine plaintiff for the purpose of treating him, and did not treat him. He also testified that in order for him to arrive at a correct diagnosis or conclusion as to plaintiff's condition it was necessary for him to know the history of the patient, and that said history was part of the matter that it was necessary for him to take into consideration in reaching a conclusion. Notwithstanding this testimony, he was permitted to testify to his opinions and conclusions as to plaintiff's condition. This was error. Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 94; Magill v. Boatmen's Bank, 288 Mo. 489, 232 S.W 448; Hutchinson v. Mo. Pac. Ry. Co., 288 S.W. 94; Murphy v. St. Joseph Ry., L. H. & P. Co., 283 S.W 994; Curry v. Federal Life Ins. Co., 287 S.W. 1053; Evans v. Mo. Pac Ry. Co., 342 Mo. 420, 116 S.W.2d 8; Berry v. K. C. Pub. Serv. Co., 121 S.W.2d 825; Corbett v. Terminal Railroad Assn., 336 Mo. 972, 82 S.W.2d 97. The testimony of Dr. Deppe that the inequality of plaintiff's pupils might or could be congenital and that plaintiff was suffering from a slight Romberg only on February 4, 1937, and that the Romberg was not present either on May 13 or October 1, 1937, destroyed his opinion testimony that plaintiff was suffering from a brain injury, in view of the fact that the doctor testified that the evidence upon which he based that opinion was that plaintiff was suffering from "the unequal pupils and the positive Romberg." Adelsberger v. Sheehy, 59 S.W.2d 647; Seitz v. Hudson, 106 S.W.2d 524; Massey-Harris Co. v. Rich, 122 S.W.2d 866; Berry v. K. C. Pub. Serv. Co., 108 S.W.2d 107; Rothl v. Ralph, 84 S.W.2d 414; Cox v. M.-K.-T. Ry. Co., 76 S.W.2d 416.

Mark D. Eagleton and Roberts P. Elam for respondents; Hall & Dame of counsel.

(1) There was no error in the admission of the testimony of Dr. Deppe, because: (a) His opinions were not founded upon hearsay facts related to him by plaintiff in giving a history of plaintiff's accident and injury. On the contrary, they were founded upon facts relating to the accident and injury as propounded to him in a hypothetical question which hypothesized those facts as such facts appeared in evidence at the trial, or upon facts within his personal knowledge, or upon a combination of hypothetical facts and facts within his personal knowledge. His opinions were, therefore, founded upon proper bases. De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 187; Perryman v. Mo. Pac. Ry. Co., 326 Mo. 176, 31 S.W.2d 5; Meily v. St. L.-S. F. Ry. Co., 215 Mo. 567, 114 S.W. 1021; Kelley v. Kansas City B. & L. Assn., 229 Mo.App. 686, 81 S.W.2d 446; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 774; Patterson v. Springfield Traction Co., 178 Mo.App. 250, 163 S.W. 958. (b) Dr. Deppe's testimony relative to the factual statements made by plaintiff in giving him a "history" of the case was competent evidence of verbal acts constituting external manifestations of the condition of plaintiff's mind and memory, and a proper basis for Dr. Deppe's opinion as to the condition of plaintiff's mind and memory, although not competent as to the truth of the facts stated by plaintiff, and not competent as a basis for an opinion of Dr. Deppe founded upon the truth or falsity of such facts. The record establishes that Dr. Deppe, in forming his opinions, used and considered the statements made by plaintiff only as verbal acts which gave external manifestation of the condition of plaintiff's mind and memory, irrespective of the truth or falsity of the facts related by plaintiff, and his opinions were, therefore, proper and competent. Platt v. Huegel, 326 Mo. 776, 32 S.W.2d 607; Lefever v. Stephenson, 193 S.W. 844; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 51; Crowson v. Crowson, 172 Mo. 691, 72 S.W. 1068; Thompson v. Ish, 99 Mo. 160, 12 S.W. 512; Rule v. Maupin, 84 Mo. 590; Pratte v. Coffman, 33 Mo. 76; Toon v. Evans Coffee Co., 103 S.W.2d 538; Browning v. Browning, 226 Mo.App. 322, 41 S.W.2d 868; 22 C. J., p. 278, sec. 284. (2) The instruction was not based upon the humanitarian doctrine, but upon primary negligence in failing to stop the truck and in turning or swerving the truck so as to cause the collision. The failure of the instruction to require any findings of fact essential to predicate Iiability under the humanitarian doctrine is, therefore, immaterial. State ex rel. Grisham v. Allen, 124 S.W.2d 1083; Brown v. Wheelock, 83 S.W.2d 913; Millhouser v. K. C. Pub. Serv. Co., 331 Mo. 933, 55 S.W.2d 675; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 163; Schulz v. Smericina, 318 Mo. 486, 1 S.W.2d 120. (a) This instruction submitted to the jury, as a predicate of defendants' liability, two charges or specifications of negligence, in the conjunctive, namely, negligent turning or swerving of the truck so as to cause the collision, and negligent failure to stop the truck. Therefore, even if the charge of negligent failure to stop the truck was without support in the evidence and was imperfectly submitted because essential facts were not required to be found, the jury was required, in order to find for plaintiff, to find that defendants negligently turned or swerved the truck so as to cause the collision -- a sufficient predicate of liability which defendants concede to have been properly submitted -- so that the instruction could not have been prejudicial to defendants, and did no more than to place an undue burden on plaintiff. Tash v. St. L.-S. F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 698; Berry v. B. & O. Ry. Co., 43 S.W.2d 785; McKenzie v. Randolph, 257 S.W. 128; Wolfe v. Payne, 294 Mo. 170, 241 S.W. 919; McIntyre v. St. L. & S. F. Ry. Co., 286 Co. 234, 227 S.W. 1052; Rigg v. C., B. & Q. Ry. Co., 212 S.W. 879; State ex rel. Kibble v. First Natl. Bank, 22 S.W.2d 193; Webster v. International Shoe Co., 18 S.W.2d 133; Agee v. Herring, 221 Mo.App. 1022, 298 S.W. 253; Sec. 1062, R. S. 1929. (3) The contention of defendants that, absent the testimony of Dr. Deppe, which defendants contend was erroneously admitted, the verdict was excessive, does not properly present to this court for determination, and does not require this court to pass upon, any issue of excessiveness of the verdict. (a) In any event, the verdict is not in the least excessive, when the evidence relating to the nature, character and extent of plaintiff's injuries and damage is considered in the light most favorable to him, as it must be. Gieseking v. Litchfield & Madison Ry. Co., 127 S.W.2d 8; Whittington v. Westport Hotel Co., 326 Mo. 1117, 33 S.W.2d 969; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1049; Keyes v. Chicago, B. & Q. Ry. Co., 326 Mo. 236, 31 S.W.2d 66; Hoff v. Wabash Ry. Co., 254 S.W. 878; Boyer v. Mo. Pac. Ry. Co., 293 S.W. 386; Magill v. Boatmen's Bank, 250 S.W. 43; Irwin v. St. L.-S. F. Ry. Co., 325 Mo. 1019, 30 S.W.2d 59.

OPINION

Douglas, J.

This is a damage suit for personal injuries caused by a collision between plaintiff's automobile and defendant's vehicle consisting of a tractor and trailer. Plaintiff was driving south on U.S. Highway 61. A light snow was falling. Near Bonne Terre the highway comes from the south curving down a hill. Plaintiff saw defendant's vehicle some 300 feet away, approaching him. Defendant's driver saw plaintiff when he was about 500 feet away. Each continued on in the proper lane. When they were about 25 feet apart the tractor abruptly turned onto plaintiff's lane, struck the front of plaintiff's automobile, continued to turn until it faced south and stopped with the trailer across the pavement. In his deposition, filed in plaintiff's case, defendant's driver explained the trailer was skidding. As he was coming down the hill he said he was "tapping" his brakes. At a cross-road the pavement was slick and the snow made it more so. When the rear wheels were on this intersection he put on the brakes which caused the trailer to skid and whip from side to side. He saw the plaintiff's automobile coming up the hill. He cut over in front of it causing the collision. The driver, on examination, denied putting on the brakes at all. Plaintiff testified that he did not see the trailer skidding at any time. The jury found for plaintiff for $ 10,000 and defendant has appealed.

This action is based on primary negligence. It was submitted to the jury on primary negligence. The instruction contained two elements of such negligence which were stated in the conjunctive. Recovery was bottomed on both elements, not on one or the other. It charged negligence in not stopping and in turning (onto the southbound lane of the highway) so as to cause the collision. Both charges of negligence were pleaded. Appellant does not question the submission of the charge on turning across the highway. Nor does it contend, nor could it properly do so, that the two charges were conflicting, confusing or misleading. It does complain about submitting the charge on failure to stop on the ground there was no evidence to support it. Assuming the truth of appellant's contention still it was not prejudicial error to submit such ground of negligence because recovery was not...