Vance v. Tootle-Campbell Dry Goods Co.

• Decision Date: 09 May 1927
• Docket Number: No. 15785.,15785.
• Citation: 295 S.W. 517
• Parties: VANCE v. TOOTLE-CAMPBELL DRY GOODS CO.
• Court: Missouri Court of Appeals

295 S.W. 517

VANCE v. TOOTLE-CAMPBELL DRY GOODS CO.

No. 15785.

Kansas City Court of Appeals. Missouri.

May 9, 1927.

Rehearing Denied June 6, 1927.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Mrs. Aaron Vance against the Tootle-Campbell Dry Goods Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown, Douglas & Brown, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

WILLIAMS, C.

This is an action for personal injury with a verdict for $5,000 from which the defendant has appealed.

Plaintiff was in the employ of defendant and on August 29, 1926, while engaged in her work at a sewing machine, a piece of plastering fell from the ceiling above where she was working and struck her. She had been in the employ of defendant for some time and has been earning, as she puts it, "modestly stating," $20 per week. She had complained to her forelady about the plastering. On the occasion of the injury complained of, the evidence shows some boxes or heavy objects were dumped on the floor above, which was the immediate cause of the falling of the plastering. Other facts necessary to a decision will be noticed in the course of the opinion.

Appellant's first contention is: That certain facts were assumed in an hypothetical question propounded to the doctor who testified in favor of the plaintiff, or as appellant Puts it:

"Facts assumed as the basis for an hypothetical question must be proved, and, if they are not, the question and answer are erroneous."

This statement of the law is correct. Jones on Evidence (3d Ed.) § 371; Russ v. Railroad Co., 112 Mo. 45, 20 S. W. 472, 18 L. R. A. 823; Hahn v. Hammerstein, 272 Mo. 248, 198 S. W. 833; White v. Railroad (Mo. Sup.) 178 S. W. 83; Feitz v. Kahler (Mo. App.) 285 S. W. 788; Henson v. Railroad (Mo. Sup.) 256 S. W. 771.

The question, therefore, upon this branch of the case, is whether or not there is evidence showing the facts assumed in the hypothetical question. The doctor testified, in part, as follows:

"The woman came to me, complaining of great pain in the right side of her head and back, with pains radiating down through the front of the abdomen, and was menstruating; had a uterine hemorrhage."

The particular point urged by appellant is that there was no proof justifying that part of the question propounded to the doctor calling for his opinion as to whether or not a miscarriage could and would be caused by the injury of the plaster striking plaintiff on the head and back. Plaintiff testified she was struck on the back and head and that she was pregnant.

The doctor testified when he had examined her she had an anasarca, and on the examination he found albumen; that a blow upon the head might produce a hemorrhage, or that a hemorrhage could be produced by shock, and, if a blood clot was formed, a miscarriage would be a fact, unless the blood clot was absorbed; that any shock of the brain that will affect the pituitary bodies at the base of the brain might produce a miscarriage and premature birth.

Appellant seems to take the position that the blow on the back is relied upon as being the only cause for the miscarriage, but the evidence of the doctor does not justify that position. Under these facts, the contention as to the hypothetical question, not being based upon evidence in the case, is ruled against appellant.

Respondent next contends that there is such a variance in the testimony in the deposition of plaintiff and testimony given at the trial that the testimony at the trial is unbelievable. He cites in support of that contention the case of Steele v. Kansas City Southern R. Co., 265 Mo. 97, 175 S. W. 177.

In the case of Steele v. Kansas City Southern R. Co., the question to be decided, as stated by the court, was:

"That the testimony of plaintiff when he was first upon the witness stand, having shown a state of facts which, as a matter of law, absolutely precluded recovery, so concludes plaintiff as to forbid recovery."

The conditions under which it is contended this principle applies in this case is that in the deposition of plaintiff she did not testify that she was struck on the back in addition to being struck on the head. She did, however, testify in her deposition that she was struck on the head. Whether she was struck on the back and on the nead or only upon the head would not preclude a recovery, but at most could only go the measure of damages.

Again, in the deposition, after having testified that she was hit on the head, she stated her headache stayed with her and she had a kind of bearing-down pain just above her waistline. Again, in the deposition, she testified that the pain across her back is just constant, and that it was located right at her kidneys, and that she never had anything the matter with her, except pregnancy, before her injury.

The principle contended for by appellant rests upon the ground of a judicial admission. This principle is recognized and applied in Steele v. Kansas City, supra. It is not necessary, under the facts in this record, for us to discuss whether or not a deposition, with the witness present, at the trial, rises to the dignity of a judicial admission.

The following quotation from Steele v. Kansas City Southern R. Co., supra, we think appropriate to this case:

"When a party litigant takes the stand as a witness for himself he ought to be permitted, and he is permitted, to protect himself from the human frailities of forgetfulness and mistake precisely as is any other witness. He ought not to be, and he is not, bound down by any cast-iron rule that he is forever concluded by any least lapse of memory or oversight or mistake which may lead him by inadvertence to a misstatement of fact, which may as a matter of law destroy his case utterly. He may correct his errors and mistakes and lapses of memory and leave the jury, on the whole case, to pass upon his credibility." This point is ruled against the appellant.

What we have said in answer to above the third point urged by appellant.

It is urged, as ground for reversal, that the argument of counsel is so prejudicial that the case should be reversed. The records show that during the argument of plaintiff's counsel there were several objections. The objections were sustained by the trial judge. The sustaining of the objections seemed to have satisfied counsel.. As stated in the case of Milliken v. Larrabee (Mo. App.) 192 S. W. 106:

"It is...