Waeckerley v. Colonial Baking Co.

• Decision Date: 06 February 1934
• Parties: GLORIA WAECKERLEY, AN INFANT, BY CLARA WAECKERLEY, HER NEXT FRIEND, APPELLANT, v. COLONIAL BAKING COMPANY, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

67 S.W.2d 779

228 Mo.App. 1185

GLORIA WAECKERLEY, AN INFANT, BY CLARA WAECKERLEY, HER NEXT FRIEND, APPELLANT, v. COLONIAL BAKING COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

February 6, 1934

Certiorari denied by Supreme Court April 18, 1934.

Appellant's motion for rehearing overruled February 21, 1934.

Appeal from the Circuit Court of the City of St. Louis.--Hon. James F. Green, Judge.

Judgment affirmed.

Dubinsky & Duggan for appellant.

(1) Error was committed in allowing defendant to seek to impeach its own witness, Fred Debrecht, the driver of the truck. King v. Phoenix Ins. Co., 76 S.W. 55, 101 Mo.App 163; Glenn v. Metropolitan St. Ry. Co., 150 S.W 1092, 167 Mo.App. 109; Vernon v. Rife, 294 S.W. 747; Wells v. Lusk, 173 S.W. 750, 188 Mo.App. 63. (2) The court erred in giving Instruction No. 2, directing the jury that they should not be governed by sympathy for plaintiff. Johnson v. St. Louis Ry. Co. (Mo.), 73 S.W. 173, 177; Fletcher v. Kansas City Rys. Co. (Mo. App.), 221 S.W. 1070, 1072; Unterlachner v. Wells (Mo.), 278 S.W. 79, 83. (3) It is prejudicial and reversible error to comment, over the objection of the opposite party, to the failure of such opposite party to produce certain witnesses at the trial, when such witnesses are available to both parties to the cause. Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Fuerstenberg v. Kram (Mo. App.), 249 S.W. 143, 146; Winkler v. Pittsburg, etc., Ry. Co. (Mo.), 10 S.W.2d 649, 650; Duncan v. City Ice Co. (Mo. App.), 25 S.W.2d 536, 538; Murphy v. Tumbrink (Mo. App.), 25 S.W.2d 133, 134, 135; Stubenhaver v. K. C. Rys., 213 S.W. 144, 145; Rothschild v. Barck (Mo.), 26 S.W.2d 760, l. c. 763. (4) But where the witness is under the control of one of the parties, or is in his employ, such witness not being equally accessible to both sides, comment is proper on the failure of the party in whose employ or under whose control such witness is to produce him at the trial. Fuerstenberg v. Kram (Mo. App.), 249 S.W. 143, 146; Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483. (5) As soon as plaintiff testifies about medical services rendered to him, he immediately opens the door and thereby affords defendant the right to introduce countervailing medical testimony. Epstein v. Pennsylvania Ry. Co. (Mo.), 156 S.W. 699, 250 Mo. 1. (6) Where the falsity of a juror's testimony on his voir dire examination as to material matters is shown by competent evidence, a new trial should be granted at the motion of the losing party. 46 C. J., sec. 51, p. 94; Dillinder v. Weeks (Mo. App. ), 50 S.W.2d 152, 155; Gibney v. St. Louis Transit Co., 103 S.W. 43, 46, 47. (7) The parties to a civil cause are entitled to have a jury composed of fair and unprejudiced men, and to this end to have a panel of eighteen men, so qualified, from whom the trial jury is to be taken. Shield v. K. C. Rys. Co. (Mo.), 264 S.W. 890, 894, 895; Theobald v. St. Louis Transit Co. (Mo.), 90 S.W. 354, l. c. 362; Moore v. Doerr (Mo. App.), 203 S.W. 672, l. c. 673; Carroll v. United Rys. Co. of St. Louis (Mo. App.), 137 S.W. 303, l. c. 307; National Bank v. Romine (Mo. App.), 136 S.W. 21, l. c. 22; Saller v. Friedman Bros. Shoe Co. (Mo. App.), 109 S.W. 794, l. c. 797. (8) It is settled law that a party is entitled to have the members of the jury anwer under oath as to their qualifications, including their relations to or connections with the party to the cause, his attorneys, claim agents and physicians, in order that he might act advisedly in making his challenges. Smith v. Lammert (Mo.), 41 S.W.2d 791; Galbert v. Grossberg (Mo.), 25 S.W.2d 96, 98; Decker v. Liberty (Mo.), 39 S.W.2d 547, l. c. 548; Muehlebach v. Muehlebach Brewing Co. (Mo. App.), 242 S.W. 175; Boten v. Sheffield Ice Co. (Mo. App. ), 166 S.W. 883, l. c. 887; Kelley v. Sinn (Mo. App.), 277 S.W. 360, l. c. 361; Kinney v. Metropolitan Street Ry. Co. (Mo.), 169 S.W. 23, l. c. 27. (9) It is proper to ascertain fully the relationship of any prospective juror to the parties interested in the outcome of the case so as to enable counsel to exercise intelligently his right to peremptorily challenge. Tucker v. Kollias (Mo. App.), 16 S.W.2d 649, 651; Melican v. Whitlow Const. Co. (Mo.), 278 S.W. 361; Chambers v. Kennedy (Mo.), 274 S.W. 726; Wagner v. Construction Co. (Mo.), 220 S.W. 890; Floun v. Birger (Mo. App.), 296 S.W. 203; Steinkamp v. Chamberlain Co. (Mo. App.), 294 S.W. 762; Malone v. Small (Mo. App.), 291 S.W. 163; Plannett v. McFall (Mo. App.), 284 S.W. 850, and numerous cases therein cited.

Thomas J. Cole for respondent.

(1) The trial court committed no error during respondent's examination of witness Fred De Brecht, as he was not only hostile to respondent, but a friend of the attorney for plaintiff. State v. Kebler, 128 S.W. 721, 228 Mo. 367, l. c. 382; Detjen v. Moerschel Brewing Co., 138 S.W. 696, 157 Mo.App. 614; Luzzader v. McCall, 198 S.W. 1144. (2) The trial court committed no error in giving cautionary Instruction 2, at request of respondent. The instruction was proper. Aronovitz v. Arky, 219 S.W. 620; Derrington v. So. Ry. Co., 328 Mo. 283, l. c. 295; Wolfson v. Cohen (Mo.), 55 S.W.2d l. c. 681. (3) The trial court did not err in failing to sustain appellant's objection to the argument of respondent's counsel commenting on the failure of appellant to offer as witnesses two doctors who had operated on appellant. Evans v. The Town of Trenton, 112 Mo. 390, l. c. 403-404; Willits v. C. B. & Q. R. R. Co., 221 S.W. 65, l. c. 67; McClanahan v. Railroad, 147 Mo.App. l. c. 411; Atkinson v. United Rys. Co., 286 Mo. 634, l. c. 640-641, 228 S.W. 483. (4) The trial court committed no error in failing to sustain appellant's motion for new trial on the assignment that one of the jurors was guilty of misconduct. Schmidt v. Rose, 6 Mo.App. 587, 588; Jenkins v. Chase, 53 S.W.2d l. c. 23; 20 R. C. L. 251, par. 34; Arnold v. Minneapolis, etc., R. R. Co., 228 N.W. 456; Nicholson Inv. Co. v. Glymph, 145 S.E. 789; Murphy v. Zimmerman, 155 A. 463; Blodgett v. Park, 84 A. 42.

BECKER, J. McCullen, J., concurs; Hostetter, P. J., not sitting.

OPINION

BECKER, J.

This is an action for damages for personal injuries alleged to have been sustained as the result of defendant's truck running into the rear of an automobile in which plaintiff was sitting on the rear seat. Upon trial of the case the jury returned a verdict in favor of the plaintiff for $ 750, but plaintiff deeming herself aggrieved by the amount thus awarded her, took an appeal from the resulting judgment. In light of the questions raised here on appeal we need not advert to the pleadings in the case.

The record discloses that the infant plaintiff, on the 21st day of March, 1930, then four years of age, was sitting on the rear seat of an automobile driven by her mother; that on Gravois Avenue the automobile had come to a complete stop behind a work car of the St. Louis Public Service Company, a street railway company, at a point about the middle of the block between Dunnica Avenue and Chippewa Avenue in the city of St. Louis. When the automobile came to a stop plaintiff stood up, and while she was so standing and while the automobile was at a standstill, the driver of defendant's truck drove the front end of his truck against the rear of the automobile in which plaintiff was riding, causing plaintiff to be thrown to the floor of the automobile, injured and rendered unconscious.

The record discloses that on February 7, 1930, shortly prior to the date of the accident, the infant plaintiff had been operated upon at the St. Louis Childrens' Hospital for ptosis of the right upper eyelid. The hospital record discloses that the physical examination of plaintiff at that time showed that besides the ptosis of the right upper eyelid plaintiff had sub-acute tonsilitis and sub-acute cervical adenitis. Physicians explained that ptosis means a drooping of the eyelid. The hospital record discloses that the physical examination that cervical adenitis means lymph gland inflammation of the cervical neck region.

Dr. Simpson testified that he examined plaintiff following the accident and found that she had a laceration some three inches in length on her forehead in the mid-front region; that there was a mass in the right frontal region covering the right eye, some four inches in diameter, and various abrasions on her body. For treatment he had ice packs applied to bring down the swelling of the mass and injected anti-tetanus to prevent lockjaw; also took two stitches in the head laceration. Dr. Simpson's diagnosis of the plaintiff at that time was that she had concussion of the brain, lacerations of the scalp, hematoma over the right eye, and numerous abrasions over the entire body. Plaintiff was kept in bed twenty days. A day or two after Dr. Simpson's first visit to plaintiff he discovered that plaintiff had a large mass in the right submaxillary cervical region at the point where the hospital record showed plaintiff, in February, 1930, had sub-acute cervical adenitis. Dr. Simpson was not able to reduce this mass condition and upon his suggestion the child was taken to Dr. Blair in November, 1930, who operated upon the mass. Dr. Simpson testified further that after the swelling over the right eye had subsided he found that the child was suffering with ptosis of the right upper eyelid--a drooping of the upper eyelid; that on May 26, 1930, at his suggestion, Dr. Blair operated upon the eyelid, taking a strip of fascia from plaintiff's right thigh and which was "slung from the frontal muscle to the tarsal cartilage."

Plaintiff was not adduced as a witness at the trial but there was testimony to the effect that after the operations plaintiff had a scar about an inch in length near the hair line in the...