*1 265 by the trustees or directors thereof every six months, or oftener, as may directors elect.” Of course, primarily the only power directors to declare a J., dividend C. p. but in the case at bar the directors turned [14 807] over their authority in respect to the functions of corporation its president who (and declared the dividend may be inferred that this was done with the acquiescence, if consent, only other active officer and director company). Under such circumstances the dividend properly declared by president. [Jones Williams, Mo. We have examined Milligan cases l.] Milligan Co., Grocer App. and Coleman 472, v. Ins. Mo. cited defendant find them not in point. judgment is reversed and the cause remanded with directions judgment plaintiff chancellor in favor to enter in the sum percent per at the rate of six with interest annum from $1630.89, July 3, 1933. All concur. Light Com
Marie N. Carroll, Respondent, Power v. Missouri Appellant. 96 S. W. (2d) 1074. pany, Appeals. City June Kansas Court *2 Charles M. Bush Cow-gill Pop-ham respondent. & for Moore & Moore and Irwin & for appellant. Bushman SPERRY, Plaintiff, respond- who will be denominated herein as C. ent, appellant sued personal injuries alleged to have been sustained by her while passenger on appellant’s ear, February about street 1930. Neither the sufficiency petition evidence, nor of the challenged. Therefore shall petition, we not set out the and shall set only out such evidence as bears From points raised herein. judgment *3 a awarding damages appeal is respondent, $5000 of to prosecuted.
Respondent was on the first and that the occasion witness testified rang alleged passenger appellant’s she was a street car she on and standing stop for a She bell in block where lived. was she holding aisle, holding in hand and groceries a of in her sack left other; poeketbook her under grip put on to the seat with the that she a large arm; was brown one poeketbook her that a left These snapped past two each other. metal frame and buttons that by and defendant plaintiff for both buttons were referred to counsel a bunch examining contained in knobs. The poeketbook as handkerchief, metal purse, comb, pencil, mirror, of coin keys, small in spectacle stopped abruptly, The ear compact. case and arm forward, striking her way, and she thrown left usual caused poeketbook on the great force. The knobs box with metal fare fewa quarter her arm and after a a about the size of bruise her She pain at arm was sick stomach. hours her and she suffered fingers; her arm, and two her hand lost partially had sensation of some atrophy muscles. there arm had shrunk some and point injuries because no go of the necessary into the extent that in ease. is made on injury told and examined her after Kuhn testified that he Dr. “over the stating her trouble was arm, that with the of trouble her and back of arm nerve. On the musculospiral distribution of she, at He testified that ulnar nerves.” median and and the radial “changes over hand in sensation her trial, hand time of ulnar also of the and over the and median nerve of the the branches musculospiral, ulnar and described the He further nerve.” radial being injury or crushed them cut an and how nerves median fingers hand, parts arm, and certain of the itself manifest would '268
going into details from which symptoms it is that of inferable respondent produced by arm, resulting some blow to the left injury to following hypothetical question said nerves. The was asked of the witness:
“Q. Bush) (By Mr. I Doctor, you want to assume that on day years 3rd February, Marie Carroll was a woman age married; and assume in 1923 for toxic operation she had an goiter therefrom; and complete recovery assume that had she in 1926 she operation, appendix had ovarian which time her at removed, portion uterus, was also a small of her and assume she complete recovery therefrom; temporarily had a in 1930 she kidneys in one infected pus had of her and after the removal two kidney longer up teeth the cleared so that no affected in she was way thereby; that in had her tonsils removed assume she had successfully, liad year and assume that in the of the she middle gall gall disturbance, bladder bladder or what caused salts stones, commonly gall hospital known as and went to a for observation existing fcy and is still inconvenienced extent the condition some gall bladder; 3rd, 1930, February (cid:127)her that prior assume she was good health, (cid:127)in except carry times stated, at the and able to perform usual household duties of well the usual duties a wife as n ofa stenographer secretary to one the Commissioners Missouri, Supreme about the State of and assume that on or Court day the 3rd of February, passenger she was a for hire one ears, upon approaching street her defendant’s and that destination, car, gave which place at desired leave said she signal customary provided by the usual manner defendant car, assuming giving stopping for the of said said street *4 signal car, from her in the of said street she arose seat and stood aisle preparatory alighting to therefrom, to when the should come same stop, a had and assume as stood in aisle of said street car she said provided right by with her defendant hand hold of the handhold a top seat, at that she held and on and the corner of the and assume metal large pocketbook arm, pocketbook had a under left which her ordinarily carried knobs and frame with two metal on it articles package groceries of pocketbook, a woman in and also held a small her the that when her, a in hand front and assume sack her left of alight, said destination where she desired to street car reached her jerk, sudden, violent and unusual stop a a with street car came to her over, with the hold she had and break causing her to turn the seat violently causing her to be thrown handhold and right, hand on said car, box on said against fare street and the feet forward several against the corner of said causing left arm thereby to strike her her and midway between the shoulder the point about a box at fare causing press her impact body by the arm, and her left elbow of arm; assume under her left was held which pocketbook against the immediately that pain, the blow to her arm she did suffer that was only there a spot quarter bine a her upper the size of arm; during assume that that her it night arm became numb if asleep, slight prickling with elbow little sensations the and fingers ring hand; during day and of the left that next assume or fingers pain in the elbow pain so there was and and thereafter intense; has in her lower became that' she left arm more assume partial gradually paralysis lost of her arm and has set the use left hand; fingers assume the thumb her left that on certain and there was flabby of her and that the flesh left arm and hand became running upper pain at one time pain her arm and left and shoulder of her arm and shoulder up back, her assume that the use left into and by degrees or about gradually from on impaired has become more general time; is a that there February present down particularly deltoid shoulder, atrophy of muscles about left trophy muscle; hangs loosely, that the arm rather assume that the left right angles or above raising prevents of the deltoid arm to muscle wasting atrophy shoulder; or of the is level assume that there some wasting of forearm, marked of the muscles that there is a of the left finger slight some the muscles thumb and index and also between the wasting carpal of the inner-osseous between bones of the muscles hand; complete ring is loss use of the left assume that there finger hand is some disturbance and little of the left and that there inability fingers; or sensation two assume has an over these that she normally to wrist on forearm all move- extend the the left and that delayed great arm and hand made ments left are. difficulty; injuries in upper that third of the assume there are injuries arm nerves on and that are to the ulnar and median there injuries thereof, museulospiral inner side nerve on the resulting degree upper side, paralysis some both to the move- nerves in the fore- ment of sensation the distribution those can, Doctor, state, you I if or hand, you arm and ivaut whether your opinion you you. which her not in the condition in found when your have been made last could caused force examination ’’ against box as impact her left arm the fare above described. objected following in the terms: Appellant to said objected L. That to for reason it “MR. H. MOORE: attempt improper question, usurp an the func- hypothetical facts, in evi- jury; based some of the facts not tions of the necessary facts are in evidence that are other ; omits dence conclusion, and furthermore that form a fair *5 nothing have facts that to do with form- complicated purposely question in the for express are inserted that opinion ing an jury, making functions the- usurping purpose injury.” to do with the nothing that facts cover question made: record was following And then Will left out “THE COURT: tell me what is you-kindly in appear which evidence? does it, your quite a while to do “MR. H. L. MOORE: It would take me with, a com- I had Honor, pick can them out. To start out she but goiter operation hypothesized. plete recovery from the as that : tends to MOORE evidence the ease show “MR. H. L. nearly great length up goiter for a of time extract she had to take ease. That is left out. time of the trial of this no evidence My recollection is there was MOORE: “MR. H. L. kidneys cleared teeth, pus in infected the removal of that after removed, but had her tonsils that she up. is assumed go tonsils, I which was true. can infected also that had assumed she instance, thing. Yes, description, through the whole things that several about arm, there are bag under her she had that evidence, in it and knobs that toilet articles that were that were not any evidence that I believe there I.recollect, don’t it, metal The fact of how had a frame. that There was evidence on. nothing question, has injury, is included that received the she I mean is as to injury. What the fact with the effect of to do paid whether she the aisle of the car or standing whether she anything of sort passenger or was a or whether her fare question. with the nothing whatever to do has all? That “THE COURT: time, I brief all think of L. MOORE: That “MR. H. yes. ‘‘ goiter extracts Now, Doctor, use of would the THE COURT: your answer? any make difference operation after the slightest. Not in “A. customary to remove tonsils that are Is it
“THE COURT: ? affected . Only fee. for a “A. Why you infer that. don’t write may You “THE COURT: (cid:127)?
in there go assumption they put can I on the I will. BUSH: “MR. ‘tonsils’., ‘infected’ put I will the word before suggestion. overruled. You right. Now the All COURT: “THE amendment.” it with may answer could, answered, yes.’’ ‘‘I think it And
OPINION. witness, propounded ato objection is made.to “When an opposing Court and sufficiently specific inform.the it should *6 271 counsel of point the real objection. in the In respect is no this there difference objection between an hypothetical question made to a question.” one made to other C., Mo., l. c. v. K. 178 [O’Neill 100; R., 173; Kinlen v. 216 R. l.Mo., c. Edmondson v. Hotel Statler Co., Mo., 234; 306 Longan Weltmer, 322; l. v. c. 180 Mo. Roscoe v. 202 Ry., Mo., Met. l. Street c. 595.] rule, following questions
Measured the above were raised: the question jury. 1. That province the invades the the The testify could properly not that conditions found did result from being against properly say bos, thrown he could that fare but opinion Ry. they his could have so resulted. v. [Holtzen 370; Mo., 256; App. Taylor R., Hyde, Mo. R. l. c. State v. v. stated, yes.” 234 Mo. Here “I have, the witness think it could 205.] Light Co., v. [Myers Mo. 66 S. W. Power & Castanie Rys., question ground. United not bad on was this 192.] (a) Complete question 2. That facts states evidence: not recovery goiter operation, made from but in evidence that she it was uninterrupted recovery stated fact she and the witness goiter took would not operation extracts for a time influence after kidneys up opinion, (b) cleared pus his No evidence that that, kidney trouble Respondent teeth removed. testified her were was Her up cleared after removal of infected teeth. evidence alone this matter hypothetical upon which to base a sufficient prove the fact assumed. tended to but operation the time of 3. That the tonsils were infected at knowl- question. a matter of common It is it was not so stated’ in the edge removed there some tonsils people do have unless jury in presence stated in doctor so infection infected tonsils inquiry. Thus the fact of answer to the Court’s question, and the when answered mind he the witness’ so infected. the tonsils were in the ease that evidence knew from other contention. merit There is no ques stated in were irrelevant facts is made that Complaint relatéd opinion. chiefly Such facts necessary medical for a tion, not necessary were received and injuries were in which .to manner arm. Other blow the severity of the understanding of the to an misleading, either complained of were not character of this facts facts, and that all for the reason jury. The rule or to the the witness shall in evidence been offered pertinent and other, as are none of such omission questions is hypothetical be included might seriously affect the proven, of one fact, or the inclusion Hammerstein, 272 l.Mo., c. witness. given opinion [Hahn included or material fact was misstatement that no hold We 262.] Court, as would be fatal out to pointed excluded, such fact they included were not facts if immaterial error; prejudicial.
5. Contention bag is also made that the hand assumed the commonly contain such carry. articles as women No do ground was made below. We hear it here for time. The the first was: bag as made “Of the arm, had under her there *7 things were evidence, several about that that not in were toilet articles it, I knobs that were on recollect, it as that I don’t believe question there was evidence on.” The contained such state no ment of It probably contents. would have been form have better detail; objection described the contents but no for do failure so to was It is now C., made. too late. K. v. Further supra.] [O’Neill more the articles poeketbook contained in the were described in detail by respondent appellant in answer to cross-examination counsel for no so that one could have been If he wanted the articles misled. question named should have when he so stated the court asked him to question state the facts that were left out of and cannot appeal assign objection a on different from that made below. [Edmond Co., Statler supra.] son v. Hotel question Lastly, is criticised it is assumed therein because poeketbook equipped appellant, was knobs. Counsel for cross-examination,
on referred to the knobs. Since so-called buttons as appellant knobs, objection assumed same to can we see no to such assumption hypothetical question. an a urged being question noted that it is in this Court that the permits opinion opinion. and calls for an based an upon Whether Mo., 309 authority Kemp, this be correct under v. of Cardinale 275; Mo., l. McAnany many c. v. c. other Henrici, l. cases, question A calling is not material a here. for determination opinion, permissible inference, opinion inference on or no more basing upon presumption. than one But this presumption another objection ques was this was not raised below when witness asked Ry. Bragg tion Met. hence, under the rule announced v. Street objection, 342: Co., Mo., general c. “That a a case where the l. competent may any purpose, for not be laid in record evidence simile) (to egg Appellate homely below as an to hatch later in the use having Court, objections. . . .” Not precise absent and definite late court, this attention of the trial it is now too point called Longan C., supra, supra, K. urge Weltmer, v. v. it here. [O’Neill cases, supra.] and other respondent propounded question identical another
But wit- appellant objected reasons ness, Dr. Neal. At time the same already prior objection, which been stated in reasons ruled reason included herein; specific that there was and for the further ulnar, musculospiral injury median and assumption an assumption, support such and that the nerves evidence to with no opinion, another based or an opinion called for an specifications said additional Neither of inference. inference on an
273' were included in objection made when asked Dr. Kuhn, who already had 'testified in answer question. to the same "Wethink it was not error to ask a second medical witness the identical hypothetical question previously witness, asked the first unless proper objection were made when the was asked ques- first witness complain the same tion. One will not be heard to of the admission of evidence over his when evidence óf a like tenor previously has been objection. admitted without [Laughlin Railway 459; Co., Keyes Q. v. C. B. & R. R. 326 Mo. Hader, Bennette S. W. already Since proper the evidence was without 413.] merely cumulative, this was not reversible error. C. J. [4 977-978.] impossible
The reason for the above rule is that it is to determine if the was influenced to the verdict because ad- evidence objection, duced without proper or because that adduced over objection. large been held that a Sometimes has number of witnesses testifying objection properly made, over had been one. *8 permitted testify objection, But proper to so without will be error. only is before such not the ease here where one witness testified so after, testifying hypo- medical being and one both witnesses and on questions. thetical
Furthermore, objection made, Court, presence the when the in was you jury witness, of and ordered: “Where assume there was the the out, injury nerve, any other nerve for to the ulnar or strike ’’ that matter. questions place grounds that the same But we the decision on objection was previous asked to which no valid had been witness urged, grounds and objection nor now made, any whatever was a waiver of permitted was to answer. This previous objection, An right object of witness. their to the evidence this the real reason general its inform the trial court of too nature to ground not objection, objection. as no Since this was for same objection objection if made, first it is the same as no specified urged grounds far as the are concerned. all, made at so here were Adams, (2d), 71 W. l. c. v. S. [Berry 134.] urged but we have con are here
Other criticisms below and the others mentioned properly all that were raised sidered attention of trial court. appellant of called to brief Railroad, supra.] v. [Kinlen respondent sup- of evidence that made of the admission Criticism is objection salary. her The children out of ported her sister and four that “it immaterial.” Such at the time was this evidence offered to trial real court reason general too to advise 360; Berry Adams, Co., 280 Mo. v. v. Tel. objection. for [Morton Rys. Co., 214 W. Threadgill United S. 126; (2d) 71 S. W. 161.] competent was not if the evidence for ordinarily true City, any general purpose, good. [Bailey was v. Kansas Mo., provoked l. c. But here the evidence adduced was 512.] who, respondent’s appellant on cross-examination husband to his that, although per year, yet effect consented $4700 he made he appellant working. Having evidence, provoked wife’s and invited W. Nafziger Bakery Co., 63 S. complain. cannot now [Marlow Packing S. W. (2d) 115; Independent Lewis v. St. Louis was not mentioned Furthermore, point l. c. 250.] ‘‘ irrelevant, general except claim the motion for new trial under evidence, point incompetent, improper prejudicial” and no and original opinion original presented it was brief herein. After the granted, appellant rehearing was handed down and motion for Court. brief, for time in this presents this, supplemental in a the first seriously by appellant. evidently considered point not at first The “prejudicial” objected to in trial court because it was It was mention was made any way, “immaterial.” No but because was “irrel only of evidence, of “immaterial” but for new trial motion evant, incompetent, improper prejudicial” evidence. and re- 1, given Number for the
Appellant complains of instruction find to the spondent, roving that it was a commission regardless injuries sustained, within the all of whether character of injured, parts body of her scope pleadings with reference noticed, will howT pleadings. It and that it was broader than the negligence ever, with that such instruction dealt damages. damages matter of not with the measure re- Number instruction measure thereof were dealt appellant from spondent, which instruction stands criticism without appeal. with instruction in connection Instruction Number must be read damages appears read, and, proper measure of Number when so *9 complaint is jury. to been submitted to It follows that the the well made. 2, that Appellant complains instruction Number respondent’s of confusing, misleading and unnecessarily long, prolix, and upon evi- comment the thereof to a paragraph the second amounted unnecessarily prejudicially dence, and and that the entire instruction of upon affirmative defense appellant’s proof to burden of its refers negligence. contributory 1082, Supreme 57 Dwyer (Mo.), S. W. the v. In Mitchell erroneous, reversibly holding giving of it to be the
Court, while severely for the defendant under an instruction criticises nevertheless advising which, the therein, jury upon appeal review negligence alleged prove plaintiff to the upon the proof burden of based, his elaborated further upon which case petition in the length. therein that a short court question at upon stated such plaintiff advising jury that the burden is instruction, the simple
275 prove his to by preponderance case by of and greater weight the of the credible and, evidence unless so, he had done the jury find must defendant, the should be sufficient inform to jury the plain- what tiff required do; should be that the more such instruction is upon, elaborated complex the more likely becomes and the more to be misunderstood. by Measured the rule thus announced case, in the Mitchell instruc- 2 tion Number objectionable. However, case, caséis in that giving
the of the instruction error; alone not treated as reversible and the one here will not be so treated.
Respondent’s 4, instruction Number as modified given by and the court, defining duty appellant bringing of its to a car stop “highest requiring degree as defining care” of and “highest “highest term degree meaning practical of care” degree very prudent person engaged of care of in like business” defining view of facts all and circumstances in evidence and “negligence” neg- “contributory “negligently” the terms and harmony law as several times been ligence,” it has is in State; and Appellate Courts by Supreme declared appellant thereof criticism made open to the such instruction is not defining terms. such defining duty and in so [Hults such so Southern 85; City Kansas Perkins v. S. W. (Mo. App.), 299 Miller Ry. Co., 121 People’s (2d) 103; 49 Bischoff (Mo.), S. W. R. Co. (Mo.), Co. Quincy, O. & K. C. R. 216, 908; 25 S. W. Walker v. Mo. Mo. Ry. Co., 211 St. Metropolitan 108; Kirkpatrick v. W. 178 S. 508, Mo. Q. Co., R. Chicago, B. & v.May 109 W. S. Ry. St. Metropolitan 660; Benjamin v. W. S. W. 233 S. (Mo. App.), Line Co. R. Atlantic Coast 91;W. Link v. S. 834.] respond- argument of complaints of various makes Appellant remarks relates attorney first of which jury, ent’s re- alleged inconsistencies to various attorney directed of such (referring they say she “First, attorney said, when he spondent’s con- guilty of say they she and then hurt, respondent) wasn’t standing there arising from the aisle negligence in tributory contributory guilty alighting. Now, how can she preparatory car? in the was not alight if she preparing negligence when the time at thereto Upon jury that.” ask the I will law, court a misstatement it was counsel appellant’s Upon further counsel, “Proceed.” respondent’s directed consistent, court of them both counsel by appellant’s This Court.” instructions will follow remarked, “The objection. made such *10 record entire have been to appears v. United by [Torreyson us. nothing review presents The record Young Joseph v. St. 152 S. W. Louis, St. Rys. ofCo.
(Mo.
4 S.
App.),
(2d) 1104;
W.
Milliken
(Mo. App.),
v. Larrabee
It is well-settled law that, this State whenever the remarks of during progress counsel of a trial are opposing considered counsel as prejudicial, necessary erroneous or objection that an be noted party’s alleged objectionable remarks to be to call attention specific of the trial ground court to objec- on which the tion is requested based and that the court be to there- rebuke counsel for; and, should the proper court rebuke, objecting not administer the counsel should thereupon except rebuke; court’s failure to and, unless the record shows courts, except this to been done our cases, grant extreme will not new ground. a trial on this [Author- last ities above cited.] is unnecessary parts argument to set out the other of such
It which particulars thereof, made or the for the reason that, upon record, any examination to show in in- fails any proper stance where is made that foundation laid upon by objection exception, the’ trial as above indicated necessary, preserve any question argument of error in the com- plained upon appeal. of for review nothing follows that there is the record from which court may refusing appellant’s be said to motion have committed error argument discharge jury by complained reason of the of. nothing justify departure There is in the record would in this appear from above noted. It does the case was case the rule facts; unduly one influenced or close manner; complained argument or misled refusing new ground. trial on discretion in abused its trial court C., Campbell, concurs. Judgment affirmed. opinion C., adopted foregoing Sperry, PER CURIAM: The judgment affirmed. All concur. court. The opinion as the Rosenblum, Respondent, Ira as Monark Rosenblum, Essie L. Appellant. Egg Poultry 96 S. 1082. W. May Appeals. City Court Kansas