Willitts v. Chicago, B. & Q. R. Co.

• Citation: 221 S.W. 65
• Decision Date: 15 April 1920
• Docket Number: No. 21104.,21104.
• Court: United States State Supreme Court of Missouri
• Parties: WILLITTS v. CHICAGO, B. &. Q. & R. CO.

221 S.W. 65

WILLITTS v. CHICAGO, B. &. Q. & R. CO.

No. 21104.

Supreme Court of Missouri, Division No. 1.

April 15, 1920.

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

Action by Rebecca A. Willitts against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff defendant appeals. Judgment for plaintiff affirmed, on condition of remittitur; otherwise reversed and cause remanded.

H. J. Nelson, E. M. Spencer, and M. G. Roberts, all of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, and J. W. McKnight, of King City, for respondent.

GRAVES, J.

Plaintiff is a citizen of Illinois, as is also the defendant corporation. The plaintiff, who was at date of her injury a woman 72 years of age, was a passenger upon one of defendant's trains in the state of Iowa. The train was wrecked (the particulars of which are immaterial because at the opening of the trial the defendant admitted liability), and the plaintiff received some injuries. She sued for $100,000 and the jury allowed her $30,000. Upon motion for new trial the trial court compelled a remittitur of $12,000, and, this being entered, he overruled the motion for new trial and entered up a judgment for $18,000, from which the railroad has appealed. The assignments of error are: (1) That the judgment should be reversed because the verdict is so excessive as to indicate passion and prejudice upon the part of the jury; (2) the refusal of the court to admit certain exhibits offered by the defendant; and (3) that the verdict as reduced by the remittitur is excessive under the facts shown.

From this outline it appears that the principal question is one of fact. Defendant is to be commended for shortening the record and simplifying the issues by its admission of liability. The questions raised and the facts pertinent thereto will be taken in the course of the opinion. This will suffice for an outline of the case.

I. The first point made by appellant is not tenable under our more recent rulings. The cases cited by appellant were long prior to Cook v. Globe Printing Co., 227 Mo. loc. Cit. 546, 127 S. W. 332 et seq., whereat it was settled that, absent error, other than excessive verdict, this court would cure excessive verdicts by remittitur. In the Cook Case, supra, the writer made a final struggle for the doctrine now contended for by appellant. See dissenting opinion, 227 Mo. loc. cit. 613, 127 S. W. 332. My voice proved a feeble one. Since that time mere grossly excessive verdicts have never been cause for setting aside the whole verdict and sending the case hack for new trial. Driven by the rule of the majority opinion in Cook's Case, we have consistently remedied excessive verdicts by remittitur in this court. The right or wrong of the rule need not be discussed at this late date. This contention of appellant is therefore overruled. My personal views will be found in the Cook Case, supra.

II. Nor do we think there is substance in the second question presented here by appellant's assignments of error. Dr. Green was called as a witness for the defendant. He treated plaintiff on the night of the wreck and for the ten days that she was in a hospital at Creston, Iowa. During that time the doctor made two written memoranda as " to the condition of plaintiff and the treatment. He noted down the injuries found upon her in the first one, and in the other he noted the condition of the wounds when she left the hospital, as well as the troubles of which plaintiff then complained. The witness was permitted to use these memoranda whilst testifying, and after being so used the defendant offered them in evidence. They were excluded, and this is the alleged error now urged.

Dr. Green had testified fully as to all matters covered by his written memoranda. He had used them to refresh his recollection to the end that he might fully testify. When so used they had served their whole and only purpose in the course of the trial, so far as defendant was concerned, whose witness he was. They could not be used as independent evidence of the facts recited therein.

There is nothing to show these instruments to have been kept, as books are kept, in the regular course of business. They were both used to refresh the recollection of the witness, who, having his recollection refreshed fully testified. The opinion of Faris, J., in State v. Patton, 255 Mo. loc. cit. 258, 259, 164 S. W. 223, fully discusses the point, and rules it adversely to the contention of appellant. This point is therefore ruled against the appellant.

III. The next and the only serious question in this case is the amount of this verdict after the forced remittitur. The plaintiff was 72 years of age on November 8, 1916, and she was injured on February 2, 1917. At the trial she did not introduce a single physician who treated her for her injuries, but rested her case, as to the extent of her injuries, upon the testimony of herself, her daughter, and a physician who examined her for the purposes of the trial, and whose examination was some 13 months after the injury. She was treated by Dr. Green at a hospital in Creston, Iowa, for 10 days, and then taken to her home. At home she was treated by Dr. McIntire, who continued to look after her at intervals (irregular) on up to the date of trial. She had a son-in-law who was a physician who visited, but did not treat, her. He, however, was in her home and saw her condition, whatever it was. She called none of these as witnesses at the trial, nor did she go to the hospital attendants for any evidence. She rested her case on the testimony of herself, her daughter, and of Dr. Potter, a physician at St. Joseph, the place of trial. We approach such a situation with some forebodings. Failure to call such witnesses (all shown to be alive and within her reach) is a circumstance to be seriously weighed in considering the bona fides of her claim. Reyburn v. Railroad, 187 Mo. loc. cit. 575, 86 S. W. 174; Evans v. Town of Trenton, 112 Mo. loc. cit. 404, 20 S. W. 617. In the latter case (speaking of physicians not being called), said:

"And the fact that plaintiff did not call them was a strong circumstance that they would not corroborate her testimony in regard to the extent of her injuries."

The statement is but the hard horse sense the situation. Astute counsel for plaintiff would have had Dr. McIntire, the family physician, the son-in-law, and the whole hospital force of Creston, Iowa, had it been that such testimony would have helped plaintiff. Counsel of the marked ability of those representing this plaintiff, to use the slang of the streets, are not "overlooking such bets" without a reason. In McClanahan v. Railroad Co., 147 Mo. App. loc. cit. 411, 126 S. W. 542, it has been well said by the St. Louis Court of Appeals:

"In Reyburn v. Missouri Pac. R. Co., 187 Mo. 565, l. c. 575, 86 S. W. 174, the failure of the railroad to produce as witnesses persons in its employ who were presumed to have knowledge of the accident was held to be a strong circumstance against the defendant. That rule, in this case, applies especially to the absence of the testimony of this young man Age. As against the failure to produce the physicians, our Supreme Court in Evans v. Trenton, 112 Mo. 390, l. c. 404, 20 S. W. 614, distinctly held that the failure of plaintiff to call the attendant physicians as witnesses in her behalf, `was a strong circumstance that they would not corroborate her testimony in regard to the extent of her injuries, and defendant was justified in urging this upon the attention of the jury.' Our examination of authority leads us to think that its great weight is to the effect that the failure of the plaintiff to produce these surgeons, who, more than any one else, qualified to testify as to the extent and nature of the injuries immediately following the accident as well as the young man Age, is a circumstance that warrants us in entertaining serious doubt as to the good faith of the plaintiff."

But, if we take the plaintiff's own evidence in this case, it shows the extravagance of even this reduced verdict. We want her to have every cent to which she is entitled, but under our modern rule of reducing verdicts we do not want to be responsible for the vagaries of the jury that tried this case. That she was considerably bruised and shaken up when the car in which she was riding left the track and rolled down an embankment, there can be no question. But that her injuries were serious enough to justify a verdict and judgment of $18,000 is not found within this record. Her testimony fairly outlined is: That she was past 73 years of age at the date of trial; that prior to her injury her "health was very good for my age"; that in the wreck she was pinned down by something; that before the injury she had no dent in the head and no scars upon her face; that there were injuries to her head and she was permitted to show to the jury a dent in the head and the two scars on the face; that before the injury she suffered some from headaches, but not often, but since her injury such were more frequent and more severe, although she "didn't notice it much at nights"; that prior to the injuries her eyesight was "as good as could be expected at that age"; that since "it is not very good; this eye, of course, is the one that is injured (meaning left eye); that the pains in her head required her to retire to her bed a"good many times"; that two teeth were knocked out and six others were bent in, so that she had them pulled; that there was a lump on her chest where she was struck; "it is still there — not very much; it is as painful, almost, as it was a few months ago, but the lump has gone down some;" "it is painful to the touch, painful as it ever was, but the lump is not there so much, but it is there some;" "it makes my breathing short and hurts me to walk very far." As to her ribs she says, "I suppose they were broken", there is still a soreness...