Stubenhaver v. Kansas City Rys. Co.

• Decision Date: 26 May 1919
• Docket Number: No. 13271.,13271.
• Citation: 213 S.W. 144
• Parties: STUBENHAVER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

213 S.W. 144

STUBENHAVER v. KANSAS CITY RYS. CO.

No. 13271.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Philipine J. Stubenhaver against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

R. J. Higgins, of Kansas City, Kan., and Ben T. Hardin, Roscoe P. Conkling, Charles L. Carr, and Clyde Taylor, all of Kansas City, Mo., for appellant.

Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $5,000 for personal injuries alleged to have been sustained by her on account of the negligence of defendant. One of defendant's cars had stopped at the usual stopping place for taking on and discharging passengers. Plaintiff put one foot upon the rear step of the car, and had the other foot in the air preparatory to placing it on the step, when the car started with a violent and sudden jerk, throwing her on her side and back, resulting in an injury to her coccyx bone, or the end of her spine, causing what her physician, Dr. Geraughty, described as "traumatic neurasthenia."

Defendant introduced a number of witnesses who testified that plaintiff boarded the car while it was in motion and thereafter the car went eight or nine feet, when it came to a stop. Thereupon the conductor said "Coming out," and plaintiff stepped off the car backward and fell to the street. She then got on the car, paid her fare, and said to the conductor, "Ain't this awful," and went into the car and sat down. Plaintiff admitted that she did not call a physician until the afternoon of the next day. It was defendant's contention that plaintiff was not only not hurt in the manner in which she claimed, but that her injuries were of a trivial nature.

During the closing argument of plaintiff's counsel to the jury the following happened:

"Mr. Brewster: Gentlemen of the jury, I have got only a few minutes more. What is this case about? This woman is injured, and I would be false to her and false to my case if I did not bring these injuries before this jury. I say to you that is the testimony. Now, mark you, this man (pointing to Mr. Hardin) had the right to have a doctor appointed by the court to examine this woman on that side before this trial was concluded, and tell you from a disinterested doctor what her condition was.

"Mr. Hardin: I object to that.

"Mr. Brewster: I say that is the law—I say that is the law that they could have had a doctor.

"Mr. Hardin: I object to it as highly improper.

"The Court: Overruled. (To which ruling defendant saves exceptions.)

"Mr. Hardin: I object to that as highly incompetent.

"Mr. Brewster: I say the ruling of the court is let me go on.

"Mr. Hardin: I save my exceptions. I am not taking any time away from you.

"Mr. Brewster: You are stopping me every time I start to make a point; you know why.

"Mr. Hardin: I object to that, if your honor please, as highly improper.

"The Court: Go on.

"Mr. Hardin: Defendant excepts.

"Mr. Brewster: I say that under the law, gentlemen of the jury, he had a right to have a disinterested doctor, not chosen by me, but appointed by his honor upon the bench, who would examine this woman and tell you exactly what he found.

"Mr. Hardin: I object to that as incompetent.

"Mr. Brewster: We had to take her doctor or have one chosen that I suggest, but he could have had one here who was appointed by the court, and he did not dare do it. Why?

"Mr. Hardin: I object.

"Mr. Brewster (continuing): Because her condition was just exactly as Dr. Geraughty says.

"Mr. Hardin: I object.

"Mr. Brewster (continuing): She was wrecked and ruined for life, because he knew she was suffering with neurasthenia, one of the most fatal diseases known to the human race, because he knew she was doomed—

"Mr. Hardin: I am objecting to that statement—I want a ruling of the court on it—as highly improper; there is no evidence at all that I had any such right, and he misstated the law.

"The Court: Overruled.

"Mr. Hardin: Defendant excepts to the ruling of the court.

"Mr. Hardin: I have not an absolute right; it is in the discretion of the court; and I object to it as highly improper.

"Mr. Brewster: Whenever you make application for it, you had it done by the court, and it is the law that you are entitled to it.

"Mr. Hardin: I object to that.

"The Court: No evidence what is done in other cases.

"Mr. Hardin: I am saving my exceptions to the argument of counsel.

"The Court: That is not in the case at all, no part of it."

Defendant did not have an absolute right to have a disinterested physician appointed. Fullerton v. Fordyce, 121 Mo. 1, loc. cit. 9, 10, 25 S. W. 587, 42 Am. St. Rep. 516; Owens v. Railway Co., 95 Mo. 169, loc. cit. 177, 8 S. W. 350, 6 Am. St. Rep. 39; Shamp v. Lambert, 142 Mo. App. 567, loc. cit. 576, 121 S. W. 770. As was stated in Graham v. Sly, 177 Mo. App. 348, loc. cit. 353, 164 S. W. 136, loc. cit. 138:

"Objection is made to the overruling of a motion of defendant filed shortly before the last trial for the appointment of physicians to make a physical examination of plaintiff, The law invests the trial court with the power to exercise a discretion in such matters, and, unless it be made to appear that the questioned ruling was an abuse of discretion, the appellate court will not interfere." (Italics ours.)

The court erred in permitting counsel to state to the jury that defendant's counsel had the right to have a doctor appointed by the court to examine plaintiff so that the jury could have a disinterested doctor to tell it what plaintiff's condition actually was. Bergfeld v. Dunham, 201 S. W. 640. We think the error in this case was even greater than that in the Bergfeld Case. In that case the court did not directly rule upon the objection made by defendant's counsel to au argument similar to the one made in this case, but said, "Proceed." In this case the objections were overruled. When the court overruled defendant's objections, the jury of course, was naturally led to believe that plaintiff's counsel had a perfect right to make the...