Stewart v. American Ry. Express Co.
| Decision Date | 21 June 1929 |
| Docket Number | No. 20544.,20544. |
| Citation | 18 S.W.2d 520 |
| Parties | STEWART v. AMERICAN RY. EXPRESS CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Action by Howard V. Stewart against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Watts & Gentry, of St. Louis, for appellant.
Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.
This is an appeal from a judgment for $3,000 in favor of the plaintiff for personal injuries sustained while in the employ of the defendant. A statement of the facts essential to an understanding of the case will be referred to as each of the points raised on the appeal is considered.
The first error assigned by the defendant is to the refusal of the court to permit it to interrogate the panel of jurors as to whether any among them would be prejudiced because the defendant did not carry liability insurance either at the time of plaintiff's injury or at the time of the trial.
Defendant is unable to refer us to any authorities in support of this proposition. It argues that it should have been permitted to do this because a plaintiff, acting in good faith, is permitted to inquire whether any juror is connected with or is interested in an insurance company which may be conducting the defense for an insured; but that is permitted only when in fact the defense is being conducted by an insurance company for the purpose of enabling an intelligent challenge to be made. Plannett v. McFall (Mo. App.) 284 S. W. loc. cit. 853, and cases cited; Yates v. House Wrecking Co. (Mo. App.) 195 S. W. loc. cit. 551. We are not persuaded of the soundness of the proposition made by defendant because there was no intimation that the defense was being conducted by an insurance company, and, consequently, there was no basis for the inquiry. For this reason it is our view that the trial court was correct in sustaining the objection made by the plaintiff. Malone v. Small (Mo. App.) 291 S. W. loc. cit. 164.
II. The next contention made by appellant is in three sections, section (a) of which attacks the admissibility of the testimony of plaintiff's physician. The physician had testified that he treated plaintiff in August, 1926, at which time he found that on the posterior surface of the right shoulder there was a depression showing that certain muscles had been divided by some cause without cutting the skin. After some further testimony as to the effect of these torn muscles upon the use of the arm, the physician was asked whether, if given a history that plaintiff on a certain date, having hold of an iron pipe at one end, 4 or 5 feet in length, when a heavy object weighing approximately 1,000 or 900 pounds was dropped violently on that bar, jerking the pipe in his hand violently down to a point within about 6 inches from the floor, would he say that the condition he found in the shoulder at the time he examined plaintiff could have been the result of such a blow. The defendant objected to this on the ground that it called for a mere possibility; could it have happened; that the showing of a mere possibility was not sufficient in this case. This objection was overruled, and the physician testified that the injury could have been caused by the condition as described; that those are the muscles that would have been strained under those conditions.
The question thus raised has been the subject of many opinions, but we think the decisions in this state support the ruling of the trial court. In the case of Taylor v. Grand Ave. R. Co., 185 Mo. loc. cit. 252, 84 S. W. 873, the physician was asked what was "probably the cause of her condition as you found it," and he answered, "The injury received on the street car." This was held to be error because it invaded the province of the jury, in that it did not call for the opinion of the expert, but for a verdict. The court then says, page 256 of 185 Mo. (84 S. W. 878):
In Maloney v. United Rys. Co. (Mo. Sup.) 237 S. W. 509, 513, after the facts relating to the accident were stated, the physician was asked whether or not such a fall could have resulted in the condition the plaintiff was in when examined. After objection was overruled, the witness replied, "In my opinion there is no doubt it could cause that condition." The Supreme Court sustained the trial court's ruling, and, after reviewing other cases, said: "In view of the foregoing, and many other authorities in this state to the same effect, the above assignment of error is no longer a debatable question and should be considered as foreclosed." Roach v. Kansas City Rys. Co. (Mo. App.) 228 S. W. 520; Vogts v. Kansas City Rys. Co. (Mo. App.) 228 S. W. loc cit. 530.
The case of Mahany v. Kansas City Ry. Co., 286 Mo. 601, 228 S. W. 821, written by the same commissioner who wrote the opinion in the Maloney Case, does not change the doctrine of that case. This case turned solely on the character of medical testimony which would be admissible to show the permanency of the condition found to exist, and it held that the testimony objected to violated the rule that experts may not express an opinion as to a mere possibility as to what may occur in the future.
The case of O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55, holds that, under circumstances such as were there shown to exist, it was proper to admit medical testimony to show what caused the condition complained of, and it overruled the rule that medical evidence was proper to show the condition might or could have produced the result only so far as concerned the facts in the case then before the court.
In the case of Kinchlow v. Kansas City K. V. & W. R. Co. (Mo. Sup.) 264 S. W. loc. cit. 421, the court, referring to the case of O'Leary v. Scullin Steel Co., above referred to, has this to say: "In that case, after an elaborate review of the case law it was held on principle and authority that an expert physician may be asked what, in his opinion, did cause the condition he observed, and that he was not limited to stating what, in his opinion, might, could, or would cause it, as held by the foregoing and other cases heretofore decided by this court."
In the case of Cardinale v. Kemp, 309 Mo. 241, 274 S. W. 437, decided in 1925, several years after all of the cases above cited, the attorney for the plaintiff asked the witness, "I will ask you to state, Doctor, from your observation and from your description of what you found there at that time, could such a scar as you saw have been caused by a knife or sharp instrument coming in contact with the eyeball?" This was objected to because that was the question for the jury to find, and the objection was sustained. The plaintiff made no offer of what he expected to prove, and the Supreme Court held, therefore, that there was nothing for it to pass on. It did say, however (loc. cit. 273 of 309 Mo. ): "If in his favor, in my opinion, they would have been admissible."
The contention of the defendant on this question is therefore ruled against it.
Section (b) of defendant's assignment II is leveled at a ruling upon a motion to strike out an answer to a question propounded to a physican as to whether he had gotten a history from the plaintiff at the time he began treating him, and he answered, "The only history I got, that he had been injured possibly the latter part of July."
We cannot see what harm could result from the reception of this evidence, even if it be conceded that it was objectionable. It certainly was not of such character as would justify a reversal of the judgment.
Section (c) of this assignment goes to conversations had by plaintiff with defendant's attorney-adjuster regarding medical care and with reference to plaintiff returning to work. Standing alone, some of this evidence might well be thought to be objectionable; but, when considered in the light of all the evidence, the rulings on objections to this evidence, even if erroneous, were harmless. Porterfield v. American Surety Co., 201 Mo. App. loc. cit. 21, 210 S. W. 119.
III. The defendant next contends that instruction No. 1 given at the instance of plaintiff was erroneous because it is not supported by any evidence in the case; that said instruction is based solely on the hypothesis that defendant by its foreman was negligent in causing plaintiff's fellow servant to move the wheel suddenly and that the movement of the wheel caused the same suddenly to strike and forcibly and violently bear down upon the iron pipe in plaintiff's hands, and that it thereby caused the injuries to plaintiff. We are unable to agree with the defendant in this contention. The plaintiff testified:
That when he was putting his bar in place, the foreman gave an order to plaintiff's fellow employee to hurry up and lift it. That "he lifted a sudden lift, it lifted the wheel something like that and it slid on this runway, the pry on the wheel slid on this steel runway, Oh, about so far, and it hit the wooden floor and dropped all of a sudden. I was just getting ready with my pipe to get leverage when he gave this order, and when this wheel slid and come down, it got away from Van Vickle; it caught me; I had hold of the pipe. * * * As soon as it struck it, it just dragged me all down with...
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