*1 in- respect jury ex- in this unless evidence admissible as direct man- is justice facts. verdict size substantive of relevant and istence * * * being be must and, ifest. Consideration eligible witness He was money, ad- given purchasing power to the court, deposition present his in- and we must bear in the inroads excluded. mind should not have missible. power bargaining flation Davis had made on the in the those The facts here and dollar at the of the rendition time are dissimilar. case fail- (January, 1958). of this The verdict giv assigns error Defendant judge ure of the trial to set aside plaintiff’s because ing of (cid:127) Instruction significant”. verdict We the sub support to “There no evidence follow, are inclined to interfere respond aggravation mission with, the conclusion difficult more ent’s hernia rendered trial instant court case. cure, his was rendered or that judgment The is affirmed. Plain serious, as a result thereof”. more concerning size testified detail tiff All concur. pre-existing incisional condition of his occurred, and hernia, collision Ac after the accident. his condition ma testimony, was a there
cording edges lips or widening
terial between un over weakened area
(cid:127)of the tissue that he He stated
der the abdominal skin. advised, prior medically
had been
accident, re not be surgery safely. quired, him a binder would hold Daisy BROWN, Plaintiff-Respondent, the effect There was medical evidence to condition, operation cure ex that an COMPANY, corporation, The KROGER afterward, required, and isting would be Defendant-Appellant. be operation be it would a difficult No. 8022. previous operation and its ef cause plaintiff’s Defendant’s fect condition. Springfield Appeals. Court of lacks contention merit. Missouri. urged is ex- It is next the verdict June effect that cessive. The evidence to the automobile, valued at $198 operation Surgery fees total loss. $250, hospital and would cost incidental $90;
fees, $400; X-Rays cost $300 doctor bills It is not shown were $40. might much time he lose from
how work operation, or that will
because he made well. determining whether a ver personal injuries
dict for each is excessive peculiar must decided on its own
case As stated in the
facts. case Breland v.
Gulf, Mobile Ohio Railroad 9, 16, Mo.Sup.: appellate “An not interfere
court should with the action
43i one, ton was an bottom was dis- old wet,” colored one side of “like it had been loose, the bottom a bottle came fell piece glass the floor A made and broke. *3 cut, a long, about on the shin one inch leg. left of this Further details occurrence in Brown v. Kro- will be found ger After Mo., 344 S.W.2d 80. plaintiff occurrence manager the store took Turner, across Dr. the street to a who put cleansed the a it. cut and band-aid over day She returned to the doctor the next process repeated. Then she went Michigan, stayed not to exceed two weeks, and returned home. The wound stayed sore, inflamed, became and caused her pain. (from) considerable ten Some days to four weeks after the incident cut, physician. she went to her own He suffering phlebitis, found her from in- flammation leg, resulting in swollen sore leg. ulcer on the of the front physician put Her treated her and plaintiff strictive bandage leg on her for period wore several weeks. During this painful very the condition was propped in a leg good sat with chair part of the time and could do her house- crutches work. She used of the time. operated In doctor on leg June and took two out front veins hospital leg. Plaintiff remained in the for Henson, Poplar week. Her after-treatment Bluff, one consisted & for de- Henson injection sclerosing agent of a fendant-appellant. leg, front of the oint- veins in the Welborn, Welborn, Briney & Joe James bandage. It was two ments and a weeks Bloomfield, Byron Kearby, Spain, E. around, get she and after that could Bluff, Poplar plaintiff-respondent. “just crippled around” awhile. she painful leg Thereafter around the her RUARK, place burned ached Presiding Judge. cut and sometimes hip.” way up my “all the At time of appeal judgment from on a This a band-aid over the trial she still wore sore plaintiff-re- in favor of verdict of place. Her testified doctor ulcer Brown, Daisy spondent on account of the place heal but that the would or sore dam- a varicose vein condition. aggravation of and lym- to the veins age from infection remain; system would February 28, plaintiff, phatic a house- On left of her years May at time of the calf ankle were trial on (age wife around than the shopping larger right inch 1961), defendant’s su- one-half opinion leg; condi- permarket. She undertook to take a six- calf tion, milk-leg, Pepsi-Cola commonly known from a low pack carton of shelf painful. to be place shopping it in her The car- continue cart. plaintiff’s previous Supreme As to condition: Court ruled on the submissi- 1948, following bility. tell, a child nearly birth of As as we can the deci- years some ten here in- before the incident sion was based identical or almost iden- volved, developed a varicose tical evidence. We are not inclined to being vein condition in her Supreme which resulted overrule the Court as to those hospitalized, and the vein on the inside matters so decided. ankle, leg,
her was re- groin As (d), bases its claim defendant testified that after about three moved. She plaintiff, the fact that having knowledge of gave weeks this her no more trouble. condition, her existing leg went her usual *4 way, in Michigan; fact went to during that years In four the in- some period days weeks, of ten to four until involved, cident a hammer had here she physician, went to her own she bathed falling stepladder a in knocked off every day two; doing or in that so she bumped leg. the shin of her It did not would remove the band-aid over the cut and skin, plaintiff developed break the but submerge leg, this along with the rest of hospitalized leg, trouble was with the herself, soap in water which contained and' days, three and was treated with heat. She in which antiseptic she also had added an says up just this condition “cleared in Lysol; such bathing after so physician had few weeks.” Her thereafter replace would she a band-aid over the cut. very leg warned her to careful with her be “That is what Dr. Turner told me to do.”' or any and she knew that blow cut would response hypothetical In to a question in- “cause more trouble than if it was a normal volving submerging leg soapy in healthy physician in 1954 in- leg.” Her water, personal physician her (the one who cident the same one who treated her in later) treated her only, stated “I wouldn’t respect here incident involved. way.” treat it that However, her, during his treatment of in two the removal of the veins Although duty it is person- aof discover, front of her he did not leg, injured reasonably pru to use the care aof of, pre- did not know the fact that she had person dent mitigate aggravate viously vein removed from the entire injuries,1 attempt the failure to to miti length 1947 or 1948. She gate will not bar the entirely from gave history him no of it. recovery. It destroy does the cause of plain- Appellant’s first contention injury. action for Damages § C.J.S. tiff did not make submissible case because 502; p. Lokey Rudy-Patrick v. Seed (a) was no evidence negligence there Mo.App., 285 1028(12); City Cline v. defendant, (b) there nowas Joseph, Mo.App., St. knowledge of a defective evidence soda 702. therefore seem that the sub carton, proof (c) there was no proper ject is not a one considered on. defective, (d) involved was container type But, a demurrer acting upon motion. contributory guilty of negli- assumption that the defendant intended gence permitting law in as a matter of that the damages contend sued for were cut become infected. proximate result of the wrong suf fered, will we consider it.2 (a), (b), (c) As to above we nothing is foreclosed. There is think the Brown the evidence which Company, Kroger bathing shows that caused v. the in- Karasawa, Stipp Croak, Mo.App., 2. v. Tsutomi Croak v. See 33 S.W. S,W.2d 1002; Phegley Graham, Mo., Thompson v. Healzer 499, 505, Cartage 791, 794;, 215 S.W.2d King A.L.R.2d Murphy Louis, Mo.App., Southern Pac. 31 Nev. P. S.W.2d 557. nonexpert stated, then the conclusions of to it is approach The nearest fection. admissible, the facts witness are not “I wouldn’t physician that answer of the jury. put in front of themselves can be way.” On have treated it that extremely dif- impossible follow- But when it hand, did she was doing what she accurate convey she ficult whom for a witness to physician to advice of manager.3 meaning, and actual and the nature by store was taken defendant’s clearly and thing may more described time, ever probably time to From by a sum- practically conveyed to the into man waded prehistoric first since mary impressions, or the witness’s by an ancestor nibbled river and had his comparison ordinary object with some controversy crocodile, has been there jury, the court or familiar Some unhealthful. bathing as to whether justice practical then the administration contributing argued students have requires testimony even acceptance of the decline fall of Rome cause to the be, sense, though may it in a the conclusion time spent too much leading citizens of the witness.4 In at baths. luxuriating debilitating *5 colony, frequent bath least one American practical argued can well be that It but only unhealthful was considered not in ly are all so-called statements of fact slightly today is a rather immoral. There reality speaker based the the conclusions of composed segment population, large of the impressions in re on the sum total mostly busy boys, to the be which holds discussion, gard any object of to certain unhealthful, lief is at bathing, that not if minute which and concerning the various enter into least We refuse to inconvenient. impressions result in the conclusion dispute say the court further than to this readily in fact communicated, cannot lady con guilty does not intend to hold a real may separately recognized not or tributory negligence be a matter of law as applica by practical The ized the witness. every day cause two. she takes bath or sim against tion of the rule conclusions is ply how else degree. a matter of assigned Error because of refusal to Just witness, reader, Umfleet, would or the testimony strike the the witness matter, language of 100 words intelligible employee an of the who witnessed store less, or the condition accurate describe the occurrence and later examined the card- ly the using as did the witness without carton, part board that a of such carton the equivalent? word wet hold discolored, wet,” or its We like it had been be- “was ruling was not error. testimony cause such was a conclusion province which jury. invaded the of the objec- The court overruled defendant’s Although testimony reference was to this deposition to tions the introduction of the made in supra, Brown v. Kroger Merriman, manager, Max store 344 S.W.2d there is no indication that regard previous to condi- and occurrences objection had point been made or that the deposition not at the The did tions store. was raised. any purport phase to cover of the incident premises Where upon the facts or injury. her which the received fairly a conclusion based can be is contended that the witness was since Hughes Maryland Casualty Co., Louis, Mo.App. 70, 3. See 155 135 Co. of St. Mo.App. 472, 1101, 1103; 229 v. Kinloch Tele- Merritt S.W. Rys. Smith v. Kansas 208 Mo. phone Co., 215 Mo. S.W. App. 139, 261, 263; 232 S.W. Scholl v. City Light Godfrey & v. Kansas Power Grayson, Mo.App. 652, 127 S.W. 233, 237; 299 Mo. 417. Casualty Co., 299 v. Continental Griffith 1043, 1047; Kennedy 426, 253 S.W. Mo. Brawley Esterly, Mo., Missouri, Co. of Electric 655, 662; Mo.App., v. Union Pitluck, Schmidt v. 859(8); Rys. 26 SW.2d Mo. Kirchof v. United party stated, not a present argument available to counsel “ * * * testify, have been deposition should told manager Kroger’s admitted. raised in deposition, This contention was they previ- had Co., supra, (Brown former ous Kroger case accidents of kind, the same and within Supreme space 80). year, And on three occasions Court, there taking fact where note of the in- appellant cartons —” Here part terposed objection objection was no ground on the an to three to reference proffered not tend Respondent’s statements did occasions. apologized counsel show defendant knowledge said say on he meant to occasions two its prove but tended limited “one negligence, possibly ob- two.” Defendant’s depo- jection stated, ruling of whether was sustained. The court testimony by sition notice “The by statements tended show manager, their knowledge. deposition, ob- defendant previous This time it had one acci- jected goes Pepsi-Cola testimony because “the offered dent where soft or some sort of beyond that to show no- testimony required drink had through fallen the bottom tice, attempt carton, possibly Thereupon de- two.” prove testimony hearsay negligence by fendant moved discharge * * jj. ¿[¡d part or Specify what declare Appellant complains a mistrial. portion objection- deposition because “the statement court was able given. quotation for the exact evidence, placed reason special emphasis testimony, remarked in again, Here as was amounted to a comment the evidence previous case, at did not “Defendant by the court.” *6 point the trial and out does not in its brief appears The statement of the court parts manager’s wherein the of the store lawyers have been directed to the deposition testi read in ‘included evidence explanation ruling. the fair of It awas mony on the It negligence.’ issue of is summary and accurate of the evidence apparent the admitted any to us that which the basis of the objection. pertain matters tend statements did not emphasize did not or im minimize the knowledge show on the portance evidence, such nor did it indi manager.” defendant through its store weight giv cate that more or should be less say reading we Nor are able to any en it than to other areWe evidence. pages any deposition several convinced there was error in no the court’s portion it does not bear on respect, that, conduct it and had elementary knowledge. of notice or “It error, was it harmless.6 that evidence that and material is relevant purpose solely one cannot be At the close of excluded the evidence jury might it because be inadmissible for some was forms of verdict for handed purpose.” defendant, and Houfburg other these Kansas on one sheet Maine, Mo., given paper, Yards Stock Co. and as usual instruction Real signing Louis Estate to method and returning Steinbaum Maltz, 652, 656, Subsequently they Co. v. verdict. S.W.2d returned the paper. top A.L.R.2d 1052. The defendant made no At the awas verdict instruction,5 request limiting by signed for a and we the foreman. At the bottom of improp sheet, side, not find that at the left-hand presumably do the evidence erly unfairly eight contention of under the blank defendant’s verdict, used. The signed. jurors other error overruled. Funsch, Mo.App., See Martin Trust 6.
5. Mercantile Heier 255-256; Gargis, Chervek v. Grimm v. St. Louis Pub- Mo.App., 43, 51, A.L.R.2d lic Service Whitlow, by jury by am direct- it be examined “The I should Court: Mr. court, ambiguous, and if ing my inquiry you as foreman. Was is found to be it defective, inconsistent, jury, finally arrived verdict of or otherwise at, attention of called to it jury should be verdict? unanimous and error opportunity correct the offered to
“Mr. No. Whitlow: finally such received verdict is is obvious In this instance it you nu- recorded.7 “The Court: How did stand were eight jurors concurring merically, you without were saying whether simply is, the bottom signing mistaken at Defendant, for the Plaintiff or the page. The final verdict was assented eight were six six or to four by counsel, although all the jury; nine to three? request the opportunity, afforded did “Mr. Nine three. Whitlow: This, then, jurors that the polled. be- came the received verdict recorded. nine “The Did the intend to Court: turn a the Plaintiff De- verdict for or the The final assignment is that verdict fendant? excessive, damages are and that the so “Mr. Whitlow: For the Plaintiff.” grossly passion excessive as to indicate prejudice. Thereupon prepared the court new forms verdict, sheets, separate this time on two kinds ex There are again jury agreed all instructed the if verdicts, (a) cessive is that in which One sign; foreman would if all did mistake and al agree, made honest nine or more could return verdict. disproportionate lowed a Such mis sum. agree inBut that event all those who did by take can be a remittitur ordering cured sign. should later the Some four minutes allowed, portion (b) The of the sum jury returned awith verdict for as to grossly is a signed verdict so the foreman. bias prejudice, indicate in which *7 counsel, (To “The Court: after read- jury fixing was guilty of misconduct in verdict) of to you Do either want usually prej figure, excessive as result of poll Jury any questions?” and ask engendered during udice the course of the This requires trial. that the verdict be viti “No, answered, Counsel both sir.” on sides and a ated trial be ordered. Skadal v. new you “The Is the verdict of Court: 684, 689-690; Brown, 351 S.W.2d all? 163, Pennsylvania Co., v. 353 Mo. R. Jones 157, 159; v. Louis S.W.2d Weber St. assent) Jury: (General Yes, “The sir.” Co., Mo.App., 232 Public Service S.W.2d Thereupon the verdict was received. 211; 209, 791, Thompson, Parks v. 363 Mo. 796, Appellate 253 S.W.2d courts 798-799. Appellant objections contends its possess do wide latitude of dis resubmitting separate the verdict to courts, they cretion of trial do or sheets, mistrial, motion for a and its should dinarily prejudice simply infer bias and have been sustained. because of the of the verdict. do size We anything likely not find the record the action We think of court engendered prejudice, any- have bias or proper. Whenever verdict is returned Co., Botsch, Mo.App., sas & Exhibition Baseball 7. Blackman 281 S.W. Turley 964, 966; Mo.App. 299, 535; Bros., 532, 157 S.W. Kaimann v. Kaimann 2d Co., Mo.App., Kiley Mo.App., v. National Ammonia Co., Mo.App., Public Service Louis St. Singleton 666, 672; v. Kan- 245 S.W.2d thing jury response indicate that the did not faith- But to a on- cross- fully honestly discharge duty its to the examination he stated that the condition ability best of the see of its members. We of her trial time was as it existed at cut, no basis grossly whereby for the claim a “a of verdict so condition vein had prejudice according was, by to show bias and so history as to what require piece ordering glass, new trial. resulting in an inflammation are, ques- however, We leg, concerned with the leg, of the left the veins tion simply lymphatic of whether system the verdict was ex- leg.” He testified, cessive. however, person has that once a
developed condition, a varicose vein stay person will with such until precise There is no rule death; condition, that a varicose vein may we determine a ver whether itself, severity depending its dict is de Each case must be excessive. activity person, painful. cided facts, being on its regard own due Thus although plaintiff’s it would seem that given purchasing power to the the dol aggravated, already condition was she was lar uniformity, and the rule of reasonable subject to a condition liable to be restrictive with being given consideration the bet painful. position ter judge and the trial damages.8 measure the The In Walker v. Public St. Louis Service course is ag entitled for the to recover ag Mo. gravation condition, of her she is but gravated permanent progressive heart damages entitled for those to recover years condition of a woman 36 old or 37 conditions in which existed before her $14,000. resulted in a verdict for It was jury, or prox conditions not the direct by $4,000. held excessive imate negligence. result defendant’s Widener St. Louis Public Service In Weber v. Louis Public Service Thomp 360 Mo. Co., Mo.App., the woman son v. Healzer Cartage 287 S.W. aggravation pre-existing suffered an 791, 794; 313 S. Wilson, Belisle v. phlebitis painful plus a neck. There was W.2d expense inability medical $100, to work months, for seven and thereafter reduction hypothetical question plain- A asked of wages she The was able to earn. physician previous tiff’s assumed the vari- swelling The trial court continued. cose condition and $4,920, duced a verdict and this was affirmed. Doctor, “Now, opinion do have an *8 * * * as to whether or not the cut that Co., Catering Glaves Old v. Gem Mo. 28, she received in February, February App., 43-year-old 18 564, 568, S.W.2d a 1958, caused the of her condition suffered a resulting waitress 29, April it was when last saw her on sore, open pain, swelling wage an 1961? expense $250, $2,000, loss medical my opinion capacity. earning “A. It is this a reduction in The court woman $7,500 that an award of suffered inflammation of her said was “a most one,” large as a result of a but not so wound which was incurred substantial as to indi passion aspect prejudice.9 on the anterior cate leg.” of her left aggravation City 9. Other cases 8. Burr Kansas Public Service of varicose v. 120, Marcus, 115, Mo. Cline condition are Pembor 365 276 S.W.2d vein 307 . v. City 279, 889, Joseph, Mo.App., (with 11 v. of St. 245 S.W. Mich. N.W.2d inju- $5,000-plus 695, 702-703; damages) personal v. Louis for Wofford St. . ries, $2,500 required; Co., Mo., Public 252 remittitur Service S.W.2d Gibbs, N.J.Super. Davis v. Mo., Brown, plaintiff’s udice v. Bearing in mind [Skadal and thus that the mistake permanent pre-existing condition was 690(14)] active, returning verdict can be cured plaintiff excessive if likely painful trial, I loss, con and corrected without new wage but also there was no affirmance, require, as a condition power of purchasing sidering that the $5,000. that mittitur For that rea- concluded sum declined, has we have dollar $3,500. alone, son I least dissent. at verdict is excessive subject judgment affirm the We therefore will, within
to the condition $3,500; the sum of days, remittitur in file judg filed, the said remittitur be
and if for new trial and remanded
ment is reversed damages.
on the issue STOTTLEMYRE, Grover C. Plaintiff- McDOWELL, J., concurs. Respondent, opinion. STONE, separate J., dissents MISSOURI PACIFIC RAILROAD COMPA NY, Corporation, Defendant-Appellant.
STONE, Judge. No. 23497. light most Viewing evidence in the verdict favorable to Appeals. Court Kansas 52— Gargis, 303 S.W.2d [Grimm Missouri. St. Horrell 53(16), A.L.R.2d June Public Louis Service regard due 618(12)], having important bearing considerations the verdict was question as to whether R. [Kiger v. Terminal Ass’n Louis, Mo., 15(19); Louis Public Service Rodefeld v. St. exam 262(11, 12)], dealing many cases with
ination cases
problem (notwithstanding that no two im mold) poured in the factual
are same that, my part even
pels the conclusion on period easy money and continu
in this grossly ex inflation, the verdict was respect for the rule and,
cessive with uniformity awards for sim
reasonable disabilities, judgment injuries
ilar justified more than cannot *9 permitted to stand.
and should not principal holding in the
Agreeing with
opinion nothing indicates misconduct damages ex assessing in an prej- of bias and
cessive amount a result Ry. Co., chison, 60 N.M. $5,000 F. & S. T. and new A.2d field excessive inability (total Mercury ordered; P.2d Mire Paul trial $25,000 work) La.App., as to re Indemnity Co., not so excessive 103 So.2d Lopez quire $6,645; triaL new v. At remitted