Wilhelm v. Kansas City Public Service Co.

• Decision Date: 12 July 1948
• Docket Number: 40592
• Citation: 212 S.W.2d 915,358 Mo. 6
• Parties: Donald Wilhelm, a Minor by his Next Friend, his Mother, Helen Wilheim, Appellant, v. Kansas City Public Service Company, a Corporation, Respondent
• Court: Missouri Supreme Court

212 S.W.2d 915

358 Mo. 6

Donald Wilhelm, a Minor by his Next Friend, his Mother, Helen Wilheim, Appellant, v. Kansas City Public Service Company, a Corporation, Respondent

No. 40592

Supreme Court of Missouri

July 12, 1948

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Cyril G. Baucke and Walter J. Gresham for appellant.

(1) The jury having found liability, it was bound to award plaintiff damages commensurate with the nature and extent of his injuries. Coghlan v. Trumbo, 179 S.W.2d 705. (2) The amount of the verdict being so small as to indicate that the jury was influenced by passion or prejudice, this court will set aside the judgment in the same manner as in cases when verdicts are excessive. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618. (3) Witness who testified that he had nothing to do with making records of which he was custodian, was not qualified to express opinion of meaning of phrases used in records, or what rating board might have thought and done concerning plaintiff's condition. Jury being as capable as witness of drawing conclusion, opinion of witness was incompetent. Hurt v St. Louis Ry. Co., 94 Mo. 255. (4) Witness having shown that he had no part in making of records, or knowledge of plaintiff's physical condition, was not competent to construe the language of the records. Davidson v. Supreme Lodge, K.P., 22 Mo.App. 263. (5) The error of the court in admitting incompetent and prejudicial conclusions and opinions by lay witness concerning the physical condition of plaintiff, goes to the question of damages, and plaintiff is entitled to reversal and remand for retrial on the issue of damages alone. Wilson v. K.C. Pub. Serv. Co., 354 Mo. 1032 193 S.W.2d 5.

Charles L. Carr, Frank J. Rogers and Cooper, Neel, Sutherland & Rogers for respondent.

(1) It was the province of the jury to determine the amount of the verdict and the same being supported by substantial evidence and being approved by the trial court will not be disturbed by this court. Coats v. News Corp., 197 S.W.2d 958; Hunt v. Gus Gillerman Iron & Metal Co., 39 S.W.2d 369; Cochran v. Wilson, 229 S.W. 1050; Coghlan v. Trumbo, 179 S.W.2d 705. (2) Witness Virgil E. Willis was qualified to explain the records of the Veterans Administration; his answers were statements of fact and if error, same was not preserved and is harmless error because covered by other testimony. Wear v. Sanger, 91 Mo. 348; Stephens v. Kansas City Gas Co., 191 S.W.2d 601; Finnegan v. Mo. Pac. Ry. Co., 261 Mo. 480; Heyworth v. Miller Grain & Elevator Co., 174 Mo. 171; Manhattan Oil Co. v. Mosby, 72 F.2d 840; Boyers v. Lindhorst, 208 Mo. 5; Baker v. Chicago, B. & Q.R. Co., 39 S.W.2d 535. (3) There was no error committed which requires a retrial of this case, and if such were true, the case should not be remanded for retrial on the issue of damages alone, for the reason that this relief was not asked in the trial court. Busse v. White, 287 S.W. 600.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for $ 25,000 damages for personal injuries alleged to have been occasioned by defendant's negligence in the operation of a street car. The jury returned a verdict for plaintiff for $ 1,000 upon which judgment was entered plaintiff's motion for a new trial was overruled and plaintiff appealed.

Plaintiff suffered a fracture of the pelvis and injuries to his bladder on November 3, 1943, when the automobile in which he was riding was struck by one of defendant's street cars. The action was instituted December 1, 1943, but was not tried until 1947. The cause was submitted on negligence under the humanitarian doctrine and a verdict returned, as stated, on April 17, 1947. Plaintiff-appellant assigns error on the admission of evidence and on an alleged inadequate verdict. We will consider the assignments in the order mentioned.

Appellant was in the United States Marine Corps and was on authorized leave at the time he was injured. He was taken to a government hospital at the Naval Air Station, Olathe, Kansas, for treatment. He remained there until December 28, 1943, when he was discharged for active duty. In the trial, he called Vergil E. Willis, as his witness, and showed that the witness had been employed by the Veterans Administration at Kansas City, Missouri, for 19 years. He further showed by the witness that the Veterans Administration is "a Department of the Federal Government that administers all laws relating to Veterans, their dependents, widows and orphans"; that the records appertaining to the appellant, which records the witness was required to produce, was a file "containing certain government records pertaining to a Mr. Wilhelm, including some records of the Veterans Administration -- photostatic copies of hospitalization, rate sheets and correspondence, awards of pension, and material of that kind"; that the records were a part of appellant's "claim file" and were permanent records kept by the Veterans Administration; that some of the records were originals and some copies; that the original hospital records of the Navy "would be with the Navy Department" and only copies were in the file; and that the file was used by the Veterans Administration as to any accident or claim that might be made by appellant. The witness further testified that the file and records were kept "for whatever reason we may need them"; that the file contained appellant's physical examination record, and "the first record relates to hospitalization at Olathe, Kansas, outside of the war, I think this means, and the other, is in the service"; that the whole file referred to appellant; and that, if the veteran "moves to another area, the whole file is transferred at his request." Witness was then requested to read from these records as to appellant's weight, height, etc., and was permitted to comment "that is when he goes in." As the records were read, other comments were requested of or made by the witness with reference to the records in his possession. By consent, the witness was asked whether the file showed a complete record of all medical treatment given appellant and if all would be in the file. He replied: "They would be, in my opinion. I don't make these records, but I know from being in this work there are many more records than are here; for instance, they would have a fellow's temperature taken several times a day, and many other details, but they don't photostat all that, and send it to us." The record showed that appellant was on authorized leave when injured in the automobile accident; and that his injuries did not result from intoxication or misconduct.

The witness was cross-examined about the medical report he had read concerning appellant's physical condition on November 7, 1945 towit: "Examined this date and found physically qualified for honorable discharge by reason of the convenience of the government." Respondent's counsel asked: "Q. Well, have you been in association with this kind of work long enough to tell this jury what is meant by 'physically qualified for honorable discharge?' Mr Baucke: If your Honor please we object to that, for the reason he is asking for a conclusion and opinion, and the record speaks for itself. I think it is highly improper and immaterial. The Court: Let him answer. A. Well, it seems that this man is in physical shape so that he can be discharged; that he doesn't need any further medical treatment; that he is in line for discharge; that he doesn't need any further medical treatment at this time. . . . Q. Well, do you have a file showing him examined for a pension, or findings on that? A. No examination, but he was rated on his service records." The witness then read the records showing appellant's service rating as of December 6, 1945, a combined rating of 50% disability on account of gunshot wounds, and the cross-examination proceeded: "Q. Now, had the Rating Board determined that this man had any disability from his pelvic condition, would he have been allowed a rating on that, and been given a pension on that? Mr. Baucker: We object to his opinion on what the Rating Board might do, as a mere conclusion on his part -- what the Rating Board might have done. The Court: Let him answer the question. A. His service connection for this pelvic condition, they rated it at no per cent. If it had been 10% or more, in their opinion, they would have rated it so. Q. (Mr. Rogers) Does this man draw a pension for his disability? A. Yes, he draws a pension. He draws at this time $ 69.00 a month. That is on his gunshot wounds, you understand. Q. And no dollars per month for any other disability? A. No, he just draws on the gunshot wounds. . . . Q. Now, if I understand you, Mr. Willis, a soldier who is on furlough and who receives some injury, is it the practice of the army to consider that disabling injury that he receives on furlough, in figuring the amount of his pension that they will pay him? Mr. Baucke: We renew our objection, he is asking for a conclusion and opinion on his part -- merely presumptive. The Court: Let him answer. A. The army is not paying, it is the Veterans Administration, and under our regulations, when he is hurt, not the result of his own misconduct, on furlough, that man has service connection connected with his naval service -- he has a service connection. Q. (Mr. Rogers) . . . Does it show the recent treatment of this man? A. No. Q. If he had received treatment recently, would it appear in that? Mr. Baucke: I object again -- he is asking for a conclusion and opinion. The Court: Let him answer. A. Well, it depends on where he got the treatment; if we ordered him examined, we would have, it would be in here, but there is no examination report. We made a request to...