Schears v. Missouri Pac. R. Co., 48347

• Decision Date: 20 March 1962
• Docket Number: No. 48347,48347
• Parties: John Wendell SCHEARS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Appellant.
• Court: Missouri Supreme Court

Page 314

355 S.W.2d 314

John Wendell SCHEARS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Appellant.

No. 48347.

Supreme Court of Missouri, En Banc.

March 20, 1962.

Richard H. Beeson, David P. Dabbs, Paul E. Vardeman, Jr., Robert H. Kendrick, Kansas City, for appellant.

David R. Hardy, Lane D. Bauer, Donald K. Hoel, Kansas City, S. Preston, Williams, Wm. Harrision Norton, North Kansas City, for respondent Sebree, Shook, Hardy & Ottman, Kansas City, Williams & Norton, North Kansas City, of counsel.

PER CURIAM.

On November 13, 1961, Division Two of this Court adopted an opinion in this case whereby the judgment of the trial court in favor of the plaintiff-respondent was reversed and the cause remanded.

Plaintiff-respondent filed a motion for rehearing or, in the alternative, for transfer to the Court en Banc.

In a per curiam opinion, the motion for rehearing or transfer to the Court en Banc was overruled. The Court, however, transferred the case to the Court en Banc on the Court's own motion. The case was set for hearing before the Court en Banc on Wednesday, May 2, 1962.

On March 9, 1962, the plaintiff and the defendant Railroad Company filed a joint motion to remand the case to the Circuit Court of Jackson County, Missouri. It was stated in the motion that the parties had agreed upon a compromise settlement. It was further stated that the parties believed it necessary that the Court en Banc adopt the divisional opinion or retransfer the case to Division Two for disposition.

After due consideration, the Court en Banc is of the opinion that the divisional opinion as well as the per curiam should be adopted by the Court en Banc. Therefore, the following opinion and the per curiam opinion of Division Two are hereby adopted as the opinion of the Court en Banc.

All concur.

STOCKARD, Commissioner.

The Missouri Pacific Railroad Company has appealed from a judgment in the amount of $65,000 (reduced by remittitur in the trial court from the jury verdict in the amount of $85,000) in respondent's action under the Federal Employers' Liability Act, 45U.S.C.A. Sec. 51 et seq., for personal injuries.

Appellant does not contend that § submissible case was not made. A jury could reasonably find from the competent evidence the following facts. Respondent was employed as a 'carman helper-oiler' at what is known as appellant's 'second train yard' at Kansas City, Missouri. He and two other employees were engaged in rolling a 55-gallon barrel of oil (weighing 425 pounds) up a ladder-type skid onto a railroad section car or what was referred to as a push car. Respondent was at one end of the barrel, another employee was at the other end, and the third employee was at the middle. Oil had leaked from barrels in the area and at the place where the work was being done the ground was oily and slick. When the barrel was being rolled up the skid respondent's foot slipped on the oily ground and he was thrown into a 'twisted' position, the barrel came over onto his side of the skid, and while in the 'twisted' position he gave a 'heave' or 'hard push' to straighten the barrel and sustained a hernia of his diaphragm.

Appellant contends that the trial court 'erred in admitting hearsay testimony of plaintiff's witness, Dr. William Duncan, of the history given him by plaintiff and of plaintiff's past symptoms and treatment,' and that it 'further erred in permitting Dr. Duncan to testify that in his opinion plaintiff suffered a traumatic hernia on August 24, 1956, because said opinion was based on said hearsay statements of plaintiff.' We shall set out the entire occurrence giving rise to these contentions, but we shall rule specifically only on the first.

Dr. William Duncan was not a treating doctor but examined respondent on March 18, 1960 three and one half years after the occurrence of the incident giving rise to the cause of action for the purpose of giving expert testimony at the trial. After qualification as an expert he was asked on direct examination whether 'any part of your examination, in whole or part, [was] dependent upon the history of the patient' and he replied that it was. He was then asked to 'give the jury the history that was given you which formed a basis in part for your diagnosis.' Appellant objected to the testimony on the ground that it constituted hearsay, and after a discussion between the court and counsel, some of which was off the record, the court ruled that he would 'sustain the objection as to how the accident occurred.' Counsel for respondent then explained to the doctor that he 'should not give any history of how the accident occurred, but you may give the history that you acted upon, other than that.' The doctor stated that respondent 'gave a history of an injury to his stomach and his chest' which occurred on August 24, 1956. Counsel for respondent said: 'Now go ahead, Doctor. You may start with how he felt after the accident, any history that was given of that.' The doctor then testified as follows: 'He described a twisting, straining injury to his chest and his abdomen. He states that shortly after this he became sick to his stomach, he became very weak, cold and clammy and rather severe pain in the lower chest on the left side and the upper abdominal area. This discomfort persisted and several days later he was admitted to St. Mary's Hospital with bleeding from the intestinal tract, pain in the lower chest and left upper abdomen. He had blood transfusions. The X-ray revealed that he had twenty per cent of his stomach into his chest cavity. He was dismissed and again admitted to St. Mary's in May of 1957 with repeated hemorrhage from his intestinal tract. The X-ray revealed at that time that the hernia was present. There was some thickening of the stomach with no evidence of ulcer. He was admitted to the Missouri Pacific Hospital where the hernia in his diaphragm was repaired on July 26, 1957. He apparently made an uneventful recovery from the surgical procedure. He was again admitted to St. Mary's Hospital on December 15, 1957 where a diagnosis was then made of a duodenal ulcer with hemorrhage from the ulcer and spasm of the stomach. There was nausea, vomiting of blood, weakness, bloody stools and fainting spells. He was dismissed and readmitted to St. Mary's Hospital on two subsequent occasions, one for influenza and one for hemorrhaging from the ulcer with bloody stools, weakness and anemia. He had an interval subsequent history of May 27, '59 when he sprained his back, with no apparent connection with his abdominal bleeding.' The doctor stated that some of the above history was obtained from respondent and some was obtained from the hospital records.

The doctor then was asked by respondent's counsel to relate 'any past health history that was given to you or that you got from the hospital records.' Appellant 'renewed' its 'original objection' and was overruled. The doctor then testified: 'The past history of this patient was irrelevant except that he had a previous history of indigestion and gas which he had had for some years prior to the present injury. He states however that he would go for as long as one and a half years without any pain or discomfort. He states that when he did have pain and discomfort it was due to stress and strain of business worries. He states at the time of the present injury he was having no abdominal or gastrointestinal discomforts and was symptom free for one year prior to the present injury. He states that even while he was working at the railroad yards he had a thirty-acre farm, he was doing heavy farm chores without discomfort.'

The doctor then testified to the complaints made by respondent at the time of the examination and of which appellant does not complain. The doctor subsequently testified that he made a diagnosis of respondent's condition, which was based in part on the statements made by plaintiff to him, as follows: '(H)e had a traumatic hiatus hernia * * * incurred on August 24, 1956 * * * with subsequent repair of the hernia followed by secondary complications of an active duodenal ulcer * * * associated with gastritis * * * and a duodenitis, which is also an inflammation of the upper portion of the small bowel. He has recurrent episodes of gastrointestinal bleeding with symptoms of pain, nausea and discomfort in the left chest and left upper abdomen. He has bilateral inguinal hernias which could be the result of the present injury and eventually should be corrected surgically. [He also has] nervousness, apprehensiveness, quite severe, secondary to the * * * traumatic hernia. He had thickening of the pleura, which is the lining of the chest, of the left side of the chest and apparent adhesions of the pericardium or lining of the heart to the top part of the diaphragm, also secondary to his original diagnosis.' The doctor further testified that 'It was my opinion that the complaints of [respondent] were entirely in keeping with the nature of the injuries sustained and subsequent course of events which have happened to [him] since the injury.' He then expressed the opinion that future medical treatment would be needed and that respondent was not able to resume his regular type of employment. Following the above testimony, counsel for respondent submitted to Dr. Duncan a lengthy hypothetical question in which the doctor was asked to assume as true all or substantially all of the facts previously related to him by respondent, along with many other facts, and in answer thereto the doctor stated that in his opinion respondent's hiatus hernia was 'a result of his injury as of August 24, 1956.'

The testimony of Dr. Duncan as to what respondent told him concerning his past history and past physical conditions and the treatment received was hearsay, and appellant's objection thereto was timely and adequate. Many cases from Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89, to Hunter v. St. Louis Southwestern Railway Company,...