Weissman v. Wells

• Citation: 267 S.W. 400,306 Mo. 82
• Decision Date: 19 December 1924
• Docket Number: 23958
• Parties: JENNIE WEISSMAN, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS
• Court: United States State Supreme Court of Missouri

267 S.W. 400

306 Mo. 82

JENNIE WEISSMAN, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS

No. 23958

Supreme Court of Missouri

December 19, 1924

Appeal from St. Louis City Circuit Court; Hon. Charles B Davis, Judge.

Affirmed.

Frumberg & Russell and C. P. Berry for appellant.

(1) The court erred in admitting the testimony of Dr. Hartman, a physician who had attended the plaintiff for the injuries complained of, as the matters testified to by him were privileged and confidential. Sec. 5418, R. S. 1919; Ariz. & New Mex. Railroad Co. v. Clark. 235 U.S. 669; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Hoy v Morris, 13 Grey (Mass.) 519; Citizens' St. Ry Co. v. Shepherd, 30 Ind.App. 193; Baxter v. Cedar Rapids, 103 Iowa 599; Dutton v. Alvion, 57 Mich. 575. (2) The verdict was against or contrary to the evidence. O'Gara v. Transit Co., 204 Mo. 724; Hipsley v. Railroad, 88 Mo. 352; Lemon v. Chanslor, 68 Mo. 340; Logan v. Met. St. Ry. Co., 183 Mo. 605. (3) The court erred in giving and reading to the jury instruction numbered 7 on behalf of defendant. (a) It erroneously stated the law as to the care required of defendant. Benjamin v. Met. St. Ry. Co., 245 Mo. 614; Smith v. Railroad Co., 108 Mo. 243; Wentz v. Railroad Co., 259 Mo. 450; Lemon v. Chanslor, 68 Mo. 356; Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 68; Waller v. Railroad Co., 83 Mo. 615; Stauffer v. Met. St. Ry. Co., 243 Mo. 327; Loftus v. Met. St. Ry. Co., 220 Mo. 470; Hinzeman v. Mo. Pac. Ry. Co., 182 Mo. 626. (b) It was not justified by any evidence. Tierney v. United Rys. Co., 185 Mo.App. 724; Nagle v. Railroad, 169 Mo.App. 290; MacDonald v. Railroad, 219 Mo. 487.

T. E. Francis and Ernest A. Green for respondent.

(1) The court properly admitted the testimony of Dr. Hartman, an attending physician, for the reason that the plaintiff had waived the privilege, by testifying herself as to her alleged physical condition after the accident, and by introducing the testimony of other physicians relating thereto. State v. Long, 257 Mo. 199; Elliott v. Kansas City, 198 Mo. 607; O'Brien v. Imp. Mfg. Co., 141 Mo.App. 337. (2) The verdict was fully in accordance with the evidence produced and not in any way contrary to it. Wright v. Kansas City, 187 Mo. 691; Rearden v. Railroad, 215 Mo. 140. (a) There is no credible evidence that plaintiff sustained any physical injuries by reason of the alleged collision of the cars. (b) The plaintiff is not entitled to recover for nervous shock alone if the evidence fails to show a physical injury suffered by her. McCardle v. Peck Dry Goods Co., 271 Mo. 111; Perkins v. Wilcox, 294 Mo. 718. (3) Instruction numbered 7, given in behalf of defendant, was not improper and did not constitute reversible error. Feary v. Met. St. Ry. Co., 162 Mo. 75; Benjamin v. Railroad, 245 Mo. 614; Loftus v. Met. Ry. Co., 220 Mo. 478.

Lindsay C. Seddon, C., not sitting.

OPINION

LINDSAY

The plaintiff asked for $ 40,000 as damages on account of personal injuries, which she alleged she sustained while she was a passenger on one of the street cars operated by the defendant, in the city of St. Louis. Upon the trial of her suit the jury returned a verdict in favor of the defendant. Three grounds are assigned here as reasons why the judgment entered for defendant should be reversed and the cause remanded: (1) That the court erred in permitting one of the physicians, who had treated plaintiff, to testify for the defendant; (2) that the verdict is against or contrary to the evidence; (3) that the court erred in giving defendant's instruction numbered 7, in behalf of the defendant.

Reserving some features of the evidence for more particular notice under their relation to the errors assigned above, the principal events shown are now given. At a little before eleven o'clock on the night of August 10, 1919, the plaintiff, a young woman of eighteen years, with her sister and mother, was a passenger on an electric street car, which, running northward on Hamilton Avenue, turned to an easterly direction on Etzel Avenue, in St. Louis. Near or at the turn eastward, the trolley pole of the car came off twice and was twice replaced by the conductor, and came off the third time, when the car was a short distance east of the turn. The car was then in darkness, and while the conductor was upon the ground re-placing the trolley, an east-bound car, approaching on Etzel Avenue, after stopping and the throwing of the switch, proceeded east on Etzel Avenue, and collided with the rear end of the car in which plaintiff was riding. The conductor of the front car, who was on the ground engaged in adjusting the trolley, was injured, so that he was taken to the hospital. The glass in the headlight of the rear car was shattered, and the fender or guard of the rear car was bent. There was no dispute of the fact that plaintiff was a passenger, nor that the collision occurred, nor much as to the degree of violence of the collision, which was not very great, the rear car not having at the time attained a high speed. The plaintiff described it "as a real hard bump, something like a gun went off." Continuing she testified:

"After the bump the car got lighted and all I remember was unconsciousness and hysteria. I don't remember anything after that. The next thing I remember I was in bed at home. I don't know how I got there. I remained in bed at home six weeks continuously after the accident. Quite a while after that I went to the hospital, the Missouri Baptist Sanitarium, and stayed there not quite six weeks. After that I was taken from the hospital to my home, where I was in bed for about two weeks. At home right after the accident I was not able to speak, could not use my voice. My back and my sides and my abdomen were injured. They were bruised, and I have been suffering with pain ever since. I was able to get up from my bed and move around just a few weeks after returning home from the hospital. I don't know exactly how long. When I was at the hospital the first time for about six weeks I was not able to use my voice at all. I didn't recover my voice for a little while before I left the hospital."

Her testimony was that these attacks of hysteria had continued to come at intervals of about one a month; that they came suddenly, and she could not remember what happened when they came; that on these occasions she became very weak, and would have to remain in bed about two weeks, and that she lost her voice as a result of the accident, occasionally regaining it, and then losing it again, the loss of voice it appears, being incidental to or coincident with the attacks of hysteria.

I. The first question, important in itself and also having no little to do with the determination of the question whether the verdict is against or contrary to the evidence, is the question whether the court erred in allowing defendant to use Dr. Hartman as a witness, and have him testify, over plaintiff's objection, to plaintiff's condition before the alleged injuries. Plaintiff's claim was that she had been in perfect health, and that the collision was the cause of injuries which manifested themselves in the attacks of hysteria from which she suffered, with the attendant loss of voice. In testifying she spoke of these as "hysterical attacks," or "hysteria" with the attendant loss of voice. A highly important question, then, was her condition in that regard, prior to the time of the collision. Upon this she testified: "I have had physicians waiting on me and treating me for this trouble since the accident. Before the accident I could use my voice normally, and never knew what sickness was. I never had any of these fits of hysteria before the accident, never knew what they were. Before the accident I never spent any sleepless nights; I used to sleep like a log. I have not been able to work since the accident." She said also: "I have had about seven doctors since this accident." She testified that Dr. Hartman was the first physician who treated her. Dr. Hartman was called, and examined the plaintiff early on the morning after the collision. He continued to treat her until about November 12th following. The testimony of Dr. Hartman will be noticed further on. After him she was treated by Dr. Singer, and also by Dr. Fry, neither of whom were produced as witnesses. At the time of the trial Dr. Boogher was treating the plaintiff, and had been doing so since about Thanksgiving Day, 1919. Referring to his first call upon her he testified: "I found her suffering from an attack of hysteria. She was in bed, and seemed to be entirely out of control. I can only characterize it by saying she was howling, yelling and crying in a loud tone of voice and tossing her body all about the bed, arms and legs, used them like flails, and seemed out of control entirely of herself or anyone else. I prescribed for her at that time and remained until she was quiet. I tried to talk to her, but there was no use trying to do that at that time. I saw her right frequently professionally after that for the next two weeks. When she got up and went about I think she recovered her ability to talk at that time and did converse with me normally. At very frequent intervals I have been called back to look at the case again, and the same situation, the same condition of affairs. I have seen her in eight or ten of these attacks. After one of these attacks the patient would be more or less exhausted for several days, and remained in bed sometimes a week or ten days. This condition apparently prevailed after all of these attacks. There are times when she speaks as well as anyone else. There are other times when there is some difficulty or rather some interference with her desire to speak. She wants to talk, but it seems there is a broken...