Scanlon v. Kansas City

• Decision Date: 25 April 1935
• Citation: 81 S.W.2d 939,336 Mo. 1058
• Parties: Edward Scanlon v. Kansas City, Appellant
• Court: Missouri Supreme Court

81 S.W.2d 939

336 Mo. 1058

Edward Scanlon v. Kansas City, Appellant

Supreme Court of Missouri

April 25, 1935

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

George Kingsley, James R. Sullivan and Arthur R. Wolfe for appellant.

(1) The court erred in refusing defendant's instructions in the nature of demurrers to the evidence requested at the close of plaintiff's evidence and at the close of all the evidence in the case: (a) Because of failure of proof that the paralysis of plaintiff's son proximately resulted from the fall described in plaintiff's evidence. (b) Because plaintiff's case and entire theory of liability (that the fall was the proximate cause of the paralysis) pyramids inference upon inference with no reasonable foundation in the evidence for the inferences so utilized, so that the proximate cause of the paralysis is left to speculation and conjecture. Cardinale v. Kemp, 309 Mo. 241, 274 S.W 275; Phillips v. Travelers Ins. Co., 288 Mo. 175 231 S.W. 185; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Layton v. Chinberg, 282 S.W. 434; State ex rel. Wabash Ry. v. Bland, 313 Mo. 246, 281 S.W. 690; State ex rel. v. Cox, 298 Mo. 427, 250 S.W. 551; Hamilton v. Railroad Co., 318 Mo. 123, 300 S.W. 791. (2) The court committed reversible error in the admission of evidence, in the following particulars: (a) In permitting the plaintiff to read to the jury the testimony of medical and lay witnesses on behalf of the plaintiff at the trial of the son's case in 1902. (b) In permitting the plaintiff to order in evidence and read to the jury from the shorthand reporter's transcript of the testimony at the trial of the son's case in 1902, the hypothetical question submitted to medical witnesses and their answers based thereon. (c) In admitting in evidence the medical opinion of Dr. Riegle given at the trial of the son's case in 1902. (d) In admitting certain parts of the testimony of Dr. Ludwick from the former trial in 1923. Met. St. Ry. Co. v. Gumby, 99 F. 192; Hooper v. Ry. Co., 112 Ga. 96, 37 S.E. 165; Fearn v. West Jersey Ferry Co., 143 Pa. 122, 22 A. 708; London Guar. & Acc. Co. v. Am. Cereal Co., 250 Ill. 123, 95 N.E. 1064; Scanlon v. Kansas City, 28 S.W.2d 84, 325 Mo. 125; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 188; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 185; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 275. (3) The care and attention given by plaintiff to his minor son were not proper elements of damage and plaintiff is not entitled to recover therefor; therefore, the court erred: (a) In admitting evidence of care and nursing by the father outside of his regular working hours by which he lost no time or wages and which occasioned him no pecuniary loss. (b) In refusing to give defendant's instructions lettered J, K, L and M, instructing the jury that plaintiff was not entitled to recover for services rendered in nursing, caring for and attending his infant son, Cornelius, unless on account of such services he lost wages or suffered a pecuniary loss. Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 88; 20 R. C. L. 615; 46 C. J., pp. 1294, 1297, 1313; Gibney v. St. Louis Transit Co., 204 Mo. 722, 103 S.W. 722; Morris v. Ry. Co., 144 Mo. 506; Ephland v. Railroad Co., 57 Mo.App. 160; Baldwin v. Rys. Co., 218 S.W. 955; Woeckner v. Erie Elec. Motor Co., 182 Pa. St. 182, 37 A. 936; Lee v. Western Union Telegraph Co., 51 Mo.App. 388; Morris v. Ry. Co., 144 Mo. 507; Moon v. St. Louis Transit Co., 247 Mo. 232, 152 S.W. 303. (4) The court erred in giving plaintiff's Instruction 1, which failed to limit the amount of plaintiff's recovery for medical expenses and other special damages to the amount within the evidence and the amount claimed in the petition. Smoot v. Kansas City, 194 Mo. 513, 92 S.W. 363; Finley v. United Rys. Co., 238 Mo. 6, 141 S.W. 866; Radtke v. St. Louis Basket & Box Co., 229 Mo. 1, 129 S.W. 508; Davis v. Independence, 330 Mo. 201, 49 S.W.2d 95; Reagen v. Peoples' Motor Bus Co., 35 S.W.2d 945; Wuest v. Dorman, 227 Mo.App. 405, 54 S.W.2d 1000. (5) The verdict of $ 20,000 was excessive. In fact, so excessive that it shows it was the result of passion and prejudice. The damages awarded so far exceeded the aggregate of the items to which the plaintiff might be entitled, the verdict cannot be cured by remittitur. Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401; Marx v. Parks, 39 S.W.2d 570; Kelly v. Higginsville, 185 Mo.App. 64, 171 S.W. 966; Dugdale v. Ry., Light, Heat & Power Co., 195 Mo.App. 258, 189 S.W. 830; Smoot v. Kansas City, 194 Mo. 513, 92 S.W. 363; Radtke v. St. Louis Basket & Box Co., 229 Mo. 1, 129 S.W. 508; Barnes v. Lead Co., 107 Mo.App. 614, 82 S.W. 203; Butler v. Met. St. Ry. Co., 117 Mo.App. 361, 93 S.W. 877; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 678.

Madden, Freeman & Madden for respondent.

(1) The evidence was not only substantial but overwhelming that the paralysis of respondent's son was caused by the fall in question; this question, moreover, cannot be reached by demurrer since it is a matter of the quantum of damages and not of liability; hence from any aspect appellant's demurrers were properly overruled. (a) Appellant misconceives the function of a demurrer which challenges not the quantum of damages or the propriety of any given element of damages but solely the right of recovery or liability; in the instant case, even if appellant were correct in its position under this assignment, the right of recovery would remain. Parsons v. Ry. Co., 94 Mo. 296; King v. St Louis, 250 Mo. 513; Lampert v. Drug Co., 238 Mo. 414; Herod v. Ry. Co., 299 S.W. 79. (b) Causal connection between the fall in question and the permanent paralysis was established not only by substantial but overwhelming evidence. Scanlon v. Kansas City, 28 S.W.2d 84; Fetter v. Fidelity Co., 174 Mo. 256; Wheeler v. Fidelity Co., 298 Mo. 640; Sharp v. Ry. Co., 213 Mo. 531; MacDonald v. Railroad Co., 219 Mo. 481; De Maet v. Fidelity Moving Co., 231 Mo. 615; Spencer v. Railroad Co., 297 S.W. 357; Schulz v. Ry. Co., 4 S.W.2d 767; Edmondson v. Hotel Statler, 267 S.W. 612; Kimmie v. Terminal Railroad Assn., 66 S.W.2d 564; Stewart v. Ry. Express, 18 S.W.2d 522; Mueller v. Public Serv. Co., 44 S.W.2d 877. (2) The court did not err in the admission of evidence: (a) the evidence received in the former trial in 1902 was offered and received in this trial without objection, and furthermore was clearly competent; (b) the hypothetical question from the trial of 1902 was offered and received without objection, the complaint now made with reference thereto was not made to the trial court, and the question was clearly proper; (c) the opinion of the witness Riegle was offered and received without objection and furthermore was clearly proper; and (d) the testimony of the witness Ludwick was clearly proper. (e) The testimony of witnesses Riegle, Blake and Carter, given in the trial of 1902 wherein respondent, as guardian and curator, prosecuted a cause of action for his son on account of the same injury here involved, was clearly competent; appellant's objection was, moreover, not timely since the testimony in question had been theretofore offered and received in evidence without objection. (f) Appellant's waiver of objections thereto by permitting such testimony to be offered, introduced and received in evidence without objection. Noland v. Morris Co., 212 Mo.App. 15; Laughlin v. Ry. Co., 205 S.W. 8. (g) The testimony from the 1902 trial was competent in this trial since (h) the two causes were between the same parties, (i) the only issue to which this testimony related was identical in both trials and (j) appellant had enjoyed full rights of cross-examination. Sec. 1714, R. S. 1929; O'Brien v. Transit Co., 212 Mo. 59; Minea v. Cooperage Co., 179 Mo.App. 716; 3 Jones on Evidence (2 Ed.), sec. 1179, p. 2159; Palon v. Great Northern, 160 N.W. 672; Lyon v. Rhode Island, 94 A. 893, 38 R. I. 255, L. R. A. 1916A, 893; 3 Wigmore on Evidence (2 Ed.), secs. 1387, 1388; Lampe v. Brewing Assn., 221 S.W. 449; Smith v. Keyser, 115 Ala. 455, 22 So. 149; Pratt v. Tailer, 119 N.Y.S. 803; Lawrence v. Maule, 4 Drew. 472; Emery v. Fowler, 39 Me. 326; Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869; O'Meara v. McDermott, 104 P. 1049, 40 Mont. 38; 22 C. J. 430; 8 R. C. L. 1141; Hartis v. Railroad Co., 162 N.C. 236, 78 S.E. 164; 3 Jones on Evidence (2 Ed.), sec. 1180, p. 2162; Harrell v. Railroad, 186 S.W. 677; State ex rel. v. Reynolds, 226 S.W. 579; Showen v. Ry. Co., 164 Mo.App. 51; L. R. A. 1916A, 995; Walkerton v. Erdman, 23 Can. 352; Railroad v. Venable, 67 Ga. 697; Cohen v. Railroad Co., 139 N.Y.S. 887; Railway v. Stout, 53 Ind. 143; Jones v. Wood, 16 Pa. 25; Szelwicki v. Land Co., 156 N.W. 622; Railroad v. Huffman, 97 N.E. 434, 177 Ind. 126; Nordan v. State, 143 Ala. 13, 39 So. 406; Profitos v. Comerma, 158 N.Y.S. 371; Jaccard v. Anderson, 37 Mo. 95; 3 Wigmore on Evidence (2 Ed.), sec. 1388; 4 Jones on Evidence (2 Ed.), sec. 2025, p. 3753; Chase v. Mills Co., 75 Me. 156; Perkins v. Stickney, 132 Mass. 217; Edgeley v. Appleyard, 110 Me. 339. (k) The hypothetical question from the trial of 1902 was offered and received without objection, the objection thereto now made and urged under this subassignment was not made to the trial court and is now made for the first time upon appeal, and the question was furthermore clearly proper; hence its admission in evidence could not constitute reversible error. Appellant's waiver of objections thereto by permitting such testimony to be offered, introduced and received in evidence without objection. The objection now raised by appellant was not made at the trial, being raised for the first time upon appeal; it therefore comes too late. Scheipers v. Railroad Co., 298 S.W. 54; Holton v. Cochran, 208 Mo....