Simon v. S. S. Kresge Co.

• Decision Date: 06 April 1937
• Docket Number: No. 23719.,23719.
• Citation: 103 S.W.2d 523
• Court: Missouri Court of Appeals
• Parties: SIMON v. S. S. KRESGE CO.

103 S.W.2d 523

SIMON v. S. S. KRESGE CO.

No. 23719.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be published in State Reports."

Action by Frances M. Simon against the S. S. Kresge Company. Verdict for plaintiff, and, from an order sustaining the defendant's motion for a new trial, the plaintiff appeals.

Affirmed.

Karl P. Spencer and George F. Wise, both of St. Louis, for appellant.

Wayne Ely, of St. Louis (Leahy, Walther, Hecker & Ely, of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, is an action for damages for personal injuries alleged to have been sustained by plaintiff on October 17, 1932, while she was present as a customer in defendant's store, which is located at Sixth street and Washington avenue in St. Louis, Mo. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,250. Subsequently defendant's motion for a new trial was sustained by the court upon two of the grounds assigned therein, and, from the order so entered, plaintiff's appeal to this court has been perfected in the usual course.

The negligence pleaded and relied upon was the act of defendant in permitting the floor in its store to be and remain slippery, as a direct result of which plaintiff was caused to slip and fall and be injured.

The answer was a general denial, coupled with a plea of contributory negligence, in that plaintiff had carelessly and negligently failed to observe and watch where she was walking and stepping, when, in the exercise of ordinary care for her own safety, she could and would have known of any dangerous and unsafe condition of the floor, and would have avoided walking and stepping thereon, and would thereby have avoided being injured.

The reply was in the conventional form.

The new trial was granted because of the court's conclusion that it had committed error, first, in denying defendant a continuance after plaintiff had been permitted to amend her petition so as to include therein a new and additional item of special damage, and, second, in permitting one of plaintiff's medical witnesses to testify, over defendant's objection and exception, to speculative matters in connection with the element of the case covered by the amendment.

The witness in question was Dr. Oliver Abel, Jr., who had examined plaintiff on April 12, 1934, some 18 months after the happening of the accident. According to the doctor's testimony, he had noted "nothing of importance" upon a general physical examination of plaintiff except a condition of tenderness along the spinal column which the X-ray pictures revealed to be an osteoarthritis of the dorsal and cervical spine. He testified further that the extent of what he found in the X-ray pictures would hardly make it seem possible that the injury plaintiff had received was the actual cause of her arthritic condition, although the injury "could" have aggravated a pre-existing condition.

Plaintiff's counsel then asked the doctor to state whether, if plaintiff had an existing condition of arthritis, the fall she received in defendant's store "could and probably did" aggravate such condition. Defendant's counsel thereupon objected upon the ground that the testimony called for by the question was not justified by the petition, which contained no allegation of any aggravation of a pre-existing condition of arthritis.

The court, after referring to that portion of the petition in which plaintiff had set out the specific injuries she claimed to have received as a result of the accident, in effect sustained the objection of defendant's counsel, whereupon plaintiff's counsel asked and obtained leave then and there to amend the petition so as to make it conform to the proof which he was seeking to adduce.

As amended, the petition contained the following allegations respecting the personal injuries for which plaintiff was seeking to be compensated in her action, the sentence inclosed in brackets being the amendment which was inserted by counsel during the examination of the witness:

"Her head, neck and back and the muscles, tendons, nerves, ligaments and joints thereof were bruised, twisted, contused, strained and sprained. [That at the time she had arthritis and her arthritic condition was greatly aggravated, causing her pain and suffering and extreme nervousness.] Her nerves and nervous system sustained a severe shock, and as a result thereof she suffers severe headaches, dizziness, pain and flashes in her eyes, and she is unable to sleep and rest at nighttime. Plaintiff states that there was a large swelling on her neck and that her neck is stiff and movement of her neck and head caused her pain and suffering."

Defendant's counsel objected to the making of the amendment at that stage of the proceedings, and, after the court had allowed it to be made, unavailingly sought a continuance because of the injection into the case of the claim of a new and additional item of special damage of which defendant had not been notified by pleading or otherwise prior to the trial. The point that prejudicial eror was committed in connection with the refusal of the request for a continuance of the case upon the allowance of the amendment to the petition was again brought directly to the court's attention in defendant's motion for a new trial, and such ground of the motion was the first of the two grounds upon which the court sustained the motion and ordered that a new trial be had.

Immediately following the amendment of the petition in the respect pointed out, the doctor went on to testify, over defendant's objection and exception, that it was "possible" that a fall or an injury "could" have aggravated a pre-existing condition of arthritis. He admitted, however, that he did not believe that plaintiff's fall had caused her to have arthritis in the first instance, and that he could not say "with any degree of real accuracy" how long the arthritic condition had existed other than to say that it was for a longer period than 6 months prior to April 12, 1934, the date upon which he had examined her, but which, as we have already pointed out, was 18 months after the happening of the accident. In other words, the sum and substance of the doctor's testimony was that he could not say "definitely," or with reasonable certainty, whether plaintiff had had arthritis at the time of her fall in defendant's store, nor could he say "definitely one way or another" whether the fall had aggravated such condition, but only that the fall "could" have sufficed to aggravate it, if plaintiff was suffering from arthritis at the time of her fall, a fact as to which there was no evidence.

The matter of permitting the doctor to give speculative testimony concerning the possibility of whether the fall could have aggravated an arthritic condition which was not shown to have been present at the time of the fall was likewise preserved in the motion for a new trial, and, upon a reconsideration of the question of the propriety of the admission of such testimony, the court concluded that it had committed error in a further respect, and assigned such ground of the motion as the second ground for its order granting a new trial.

We think that the court very properly sustained the motion for a new trial upon the ground of error in having denied defendant a continuance of the case upon the allowance of the amendment to the petition.

We appreciate that the court may, at any time before final judgment, in furtherance of justice, "and on such terms as may be proper," permit the amendment of a pleading by the insertion therein of any other allegation material to the case, "when the amendment does not change substantially the claim or defense." Section 819, R.S. Mo.1929 (Mo.St.Ann. § 819, p. 1077); Neville v. D'Oench, 327 Mo. 34, 34 S.W.(2d) 491; Fischman-Harris Realty Co. v. Kleine (Mo.App.) 82 S.W.(2d) 605.

But this obviously implies that, if the proposed amendment does work a substantial and material change in the claim or defense so that new and additional evidence will be required to meet it, then the amendment should not be allowed except upon such terms as may be proper under the particular circumstances of the case, which could hardly mean less than that the opposite party should have the right to have the case continued or set over until such time as he might be afforded a reasonable opportunity to meet the new issue which is thus injected into the case. It is true that the question of whether an amendment to a pleading should be allowed during the course of a trial, and, if so, whether a continuance should follow if applied for, are all matters reposing largely in the sound discretion of the trial court (Berberet v. Electric Park Amusement Co., 310 Mo. 655, 276 S.W. 36), but, where the amendment is of such a character as to enlarge upon the issues or to tend to enhance the damages recoverable, then the exercise of a sound discretion on the part of ...