*1 OP Kleckamp Lautenschlaeger. plaintiff injuries the
acter and their effect of the manual permanently him from to disable he had undertaken not labor. The evidence show does adapted other seemingly work of a kind age of Taking matters and manual these labor. regarded plaintiff the verdict not consideration, into degree being requiring aside, set in a to be excessive be remitted. or that a of amount recovered judgment concurs. C., be Small, should affirmed. opinion foregoing
PER CURIAM:—The Lindsay, adopted opinion Court as the C., Division, recovery. except Banc, as to amount of opinion judgment reduced that be court should is of judg- the date of to fifteen thousand dollars as of five remit sum should ment days within of such ten from date, thousand dollars as judgment event the reduced in which will date, original judgment re- will be affirmed; otherwise, judges All con- remanded. versed and cause except J., absent. Walker, cur, KLECKAMP, Friend, FRED FRED Next JR., W. W. KLECKAMP, SR., v. GEORGE W. LAUTEN Appellants. et al., SCHLAEGER One, Division 1924. November Employment 1. NEGLIGENCE: Automobile: Evidence: Inex- perienced Speed. bicycle-rider, injured Driver: In an action when he was struck defendants’ driven their em- ployee, bearing competency incompe- where no evidence on tency by plaintiff chief, of the driver was in his case in nor offered driver, previous negligence acts of the driver on has that at the direct examination testified time the collision running per hour, miles the automobile about five right, as a on cross-examination of the driver has means of test- weight testimony, question him as to of his- his ex- speed accuracy perience, knowing the oí the means autorno- cross-examination, questions such bile. Such under circum- incompetent theory stances, not defendants are employ negligence liable for their failure to as for actionable *2 driver, competent experienced as a of and means efficient but speed. testing accuracy the driver’s estimate scope PRACTICE: Cross-Examination: Discretion of Court. 2. the cross-examination of a witness is a matter which must left largely court, discretion of trial and the unless that discre- appellate pronounce court is reluctant tion is abused the the cross-examination error. Eight
3. PERSONAL INJURY: Excessive Verdict: Thousand Dollars. leg years age; Plaintiff was fourteen his was broken about midway knee; hip at the he was to his bed between and confined heavy weeks, weight pulley home for seven with a and attached weeks; leg; hospital, a the the taken to he remained in bed nine overlapped, apposition; bones and come after refused to into weeks, open, until the tissues cut the muscles stretched plate together, a silver four broken ends of bones came and plaster long them, leg placed in a inches inserted to hold and the kept chest; home, extending his taken cast from his toes to month, months, then chair for a in bed for two then sat in wheel cane; time, of a and then with the aid walked on crutches for hip leg other, in walk- is tilted is an inch shorter than the one body lopsided; pain ing, muscles is still and his there knee; side; at in case there is not full flexion of the tilted removed, plate injury to be the silver would have another blood-poison- might cutting leg open, cause and that infection dollars, though eight ing. Held, a verdict thousand justify sum, interference so as to is not excessive round appellate court. Appellate appellate and Trial Practice. court -: -: 4. personal where case of a the verdict not bound places just; they law but more liberal have been determining instance, jury, duty upon the amount the first injured they party awarded, and, damages view the to.be measuring they opportunity witnesses, have better his and hear largely court, injuries appellate which will defer than the judgment. their Cyc. Witnesses, 1, Subject Relating 40 Headñotes: Citations Witnesses, Error, par. 2797, 2490; Appeal 40 (2) 2489, 4 C. J. Appeal Error, par. 486; 4, 2506; Damages, 4 J. Cyc. 3, C. 17 C. J. par. Damages, par. 17 C. J. 305 Mo.—34. SUPREME OF COURT Kleclfamp Hon,
Appeal City from St. Louis Circuit Court.— Charles Rutledge, Judge. W.
Affirmed.
Bryan,
appellants.
Williams <&Cave for
(1)
against
In a suit
the owner of an automobile'
injuries
for the
petency
caused
servant or driver, the com-
incompetency
of the servant as a driver is
admitting,
court
immaterial, and
erred in
over de-
objection,
fendant’s
evidence
to show that
incompetent
defendants’ driver
anwas
chauffeur. Carl-
son v.
R.
Co.,
Connecticut
A. L.
569, and note; Cen-
Banking
tral
&
Railroad
Co. Roach,
rendered admissible evi- by dence offered the defendants. driver had been questions asked no to defendants answer which experience required any driving (2) in an automobile. require The verdict excessive is so excessive as to a remittitur. respondent. for
Frank Haskins H. Regardless (1) questions o’f whether the asked experience regarding the extent of his Vawter driv- competent purpose ing prov- a machine were for they negligence, competent to show his knowl- edge regarding speed facts he to testified as space driving which a machine could n App. stopped. v. Co., 231; Aston Transit 105 Mo. Walsh Gourley Ry. Railway, v. Mo. v. Co., 586; Mo. Pac. 102 35 531 1924. Kleekamp v. (3 Berry App. Ed.) 92;
Mo. secs. Antos 991, 1012; Bay (2) Johnson v. State Railroad 222 Co., Mass. 583. questions regarding The experience Vawter asked the extent of his driving competent a machine were for the purpose showing negligence. Co-Operative Jones v. 109 Me. Assn., 448; Fisher v. Railroad 141 Wis. Co., 515; Ry. v. Chrisman Belt 110 La. Co., 640; Williams v. Ed- Mich. Vernon munds, 92; 75 Cornwall, v. 104 62; Mich. Ry. 168 Ind. .192; Broadstreet Hall, Cen. Co. v. C. C. A. O’Neil, 658; 100 Blalack v. Blacksher, 11 Ala. App. Blumenthal v. Electric 129 544; Co., Iówa, 322. competent (3) It is show reckless habits or incom- petence a servant show conduct on oc- keeping casion was in with these habits. Ry., Vicksburg Ry. Craven v. Pac. 72 Cen. Cal. 348; Ry., 194; Miss. State v. Boston Patton, & Maine N. II. 410. minor, by plaintiff,
SEDDON, C. -Suit next against copartners, doing friend, defendants, who Lautenschlaeger business under firm name of Broth- damages personal injuries. to recover ers, riding bicycle Plaintiff was and was run down from the rear defendants’ and struck employee driven while defendants’ business. petition pleads city an ordinance of of St. except passing requiring vehicle, when Louis vehicle keep right-hand possible, near the curb ahead, overtaking passing another vehicle, when *4 petition charges keep left. The to the defendants with respects: (1) negligence saw, in Defendants or these ordinary plaintiff seen, care could have in exercise peril being and in imminent struck front of de- in time automobile, exercise of thereafter, fendants’ safety ordinary at hand care with the means and with occupants, speed, have slowed the driver and down stopped, said automobile so to have or turned avoided negligently (2) striking plaintiff, to do so; but failed SUPREME OF COURT signal give any failure to or sound to warn danger; (3) keep right-hand liis failure to as near the possible; (4) attempting pass plaintiff curb as right-hand (5)
instead of on the side; left-hand defend- operated by ants’ automobile was a chauffeur under the eighteen years age of had not who licensed a ordinary and defendants or chauffeur, knew, the exercise of would have these care, known facts general plea is a answer denial and a of con- tributory negligence. years injured boy age, a fourteen
Plaintiff, on August riding bicycle a north on in at or Florissant Avenue St. near its Louis, intersection with Adelaide Avenue. Florissant Avenue is north- street, and Adelaide Avenue is an and-south east-and- carrying package street. Plaintiff west left right guiding bicycle hand with his hand. De- place of Avenue, fendants’ business was Florissant distance from Adelaide Avenue. short When passed store, defendants’ defendants’ automobile was forty-three standing in front of the about feet store, still plat line of A south of the south Adelaide Avenue. sixty Adelaide Avenue to feet wide, evidence shows thirty-six having roadway feet center. There twenty-two feet on Florissant Avenue a car track dis- right-hand street. from or side of that tant the east approached Plaintiff he defend- that, testified when swung he was he out to left until ants’ automobile, car or feet from the track. he about two three After swing passed toward the he started reaching right Avenue, middle Adelaide after straight parallel line north in a he continued swing more either car track and did straight was about ahead, left. he started When track, maybe a foot way the curb car half between the car track. two closer to width the whole testified the defendants One truck the automobile was between Avenue of Adelaide *5 Vol.
Kleckamp Lautenschlaeger. began swing hoy when he over toward the and the boy get right, “the farthest I saw the from the four between and five feet. He was car track was never than or five from the car farther four feet track got during he never closer to the track that time ear than went more four feet. He never straight foot out of a boy line. The was about four five feet from track he was struck.” Witness heard no car when plaintiff danger, although to warn horn sounded on a horn the car. evidence tends to show there was twenty-five approximately plaintiff that was feet struck building line the north of Adelaide north of the on side Avenue. tes- automobile, Yawter,
The driver of the Claude plaintiff as a that was defendants, witness tified, when he first of Adelaide Avenue saw about the middle engine just started and him. The automobile position. from its not then moved automobile had right, going “zig-zagging” to Plaintiff north reached the middle and had began after the automobile started put the brakes. on Avenue, witness Adelaide kept eyes plaintiff time on. from that On on the automobile examination, direct testified witness running cross-examination, hour on five miles an traveling an hour. He about seven miles it was stop going seven he further testified could eight ten feet, street, an hour miles “zig-zagging” plaintiff automobile after he saw forty stopped it. The left feet before he about traveled rear wheel of the automobile struck fender of the sideways causing plaintiff bicycle, car to fall toward the track. plain- on behalf Herbert testified
Witness Vicks riding with the driver, in the automobile tiff that was plaintiff the machine start- hit. when When Yawter, up Avenue, middle Adelaide ed was about the going north. After track, five feet from the car about passed Avenue he did center of Adelaide SUPREME COURT OP *6 swing any right, straight not toward the but in a went parallel line car street track. The automobile going plaintiff about ten an miles hour and going about five miles hour.
Appellants’ abstract of the record that “there recites plaintiff prove allega- was evidence for petition negligence tions as to of the defend- operation ants in the of said there was justify plaintiff’s evidence sufficient to submission jury- case to the on the'last-chance doctrine.” The a verdict in favor of returned for upon judgment which $8000, was entered. After un- successfully seeking a new trial, defendants allowed appeal to this court.
Only urged by points appellants their assignment (1)- improper alleged of errors: The ad- testimony (2) mission certain that the verdict is upon pass excessive. We will them in their order. Appellants I. insist that trial court erred admitting, objection, over their certain evidence tend- employee, to show that their driver and incompetent Claude was an and in- Yawter, Inexperience Driver. experienced chauffeur. appellants but two offered Charles witnesses,
Lautenschlaeger, and their driver, Claude Yawter. On Lautenschlaeger, cross-examination of defendant the fol- lowing occurred: you
“Q. [defendants’ driver] Did show chauf- A. license? No, feur’s sir. “Judge object to that irrelevant and im- I as Cave: any light
material in case. this. That does throw happened. question how accident how this happened. accident point That raised motion Haskins: “Mr. petition. pleaded have that out in the We strike ground negligence. motion to strike one His out my petition However, I will overruled. question
withdraw the to save time.” The driver, testified on Yawter, direct examination: just gone yon I “Q. believe had to work for Lau- tenschlaeg’er day? Brothers on that A. sir.” Yes, was then Witness asked where was when wit- witness, ness first noticed him, where Yawter, was at that time. He was then asked and answered: you running?
“Q. About how fast were A. About five an hour.” miles by respondent,
On cross-examination of witness following occurred: many you “Q. How driven a times Ford car you Lautenschlaeger? before went to work ' “Judge object wholly I to that immate- Cave: *7 rial. objection overruled. is “The Court: “Judge objection My ground is Cave: according this case is liable or not defendant liable happened. to how the accident It does make boy if difference Liability this had ever driven car before or not. thing for must be based on how the accident happened. objection To which is overruled.” “The Court:
ruling’ of the court counsel for defendants then and there duly excepted except. still continues you
“Q. How often had driven Ford car before driving my this one? A. I drove for brother about two months. your sir;
“Q. For A. Yes, brother? he had one staying with at was us the time drove his I car.
“Q. often? A. About once a How week. ?
“Q. Yes, For months A. sir. two day? you “Q. Did it all A. sir. No, drive long you “Q. did drive it at a time? How A. About half hour at a time. just riding
“Q. was that? A. That Where was around.
“Q. In Louis? A. at Dundas. No; St. was OF you only time have driven an
“Q. That was Lautenschlaeger? you for went to work automobile before A. Yes,Mr. half an hour drove it once week for
“Q. You sir. Yes, months? A. experience no other with automobiles
"Q. You had A. sir. No, besides that? you gone long before to work for
“Q. How Lautenschlaeger you first time had driven that your A. About three months. car brother? Ford for you had months driven a About three since “Q. A. sir. Yes, car at all? many trips you make this car How did
“Q. boy? you never Lautenschlaeger’s A. I hit this before trip ‘.airy’ all. at made you first time ever drove that
“Q. That you only it a distance from where car? driven You had you boy, you all hit the had ever started where A. sir.” Yes, driven that car? that, appellants whether de- contend
Counsel at the time of the collision driver, Yawter, was, fendants’ with'plaintiff’s bicycle, competent incompetent, or ex- perienced inexperienced, not a material issue this inexperience, experience regardless of his suit, and, if at action, be held liable are to the defendants negligent solely omission of act or because some all, employee, occurring in- the time at their *8 way, jured. Stating proposition in a little different liability appellants of a master assert far as the that, so only person to hire failure concerned, to a third experienced competent in itself does not servants liability, any, negligence, if but his constitute actionable wrongful predicated or omission act must infliction at the time of the of the servant complained that It asserted tes- is, therefore, of. cross-examina- timony Yawter, elicited driver, of inexperience, incompetency or tion, tended show his objections appellants ground on the thereto of and the immateriality have been should sustained the trial Furthermore, court. admission of such evi- prejudicial appellants. dence was appellants Learned counsel for have our directed foreign jurisdic- attention to a number of decisions of they support tions which, claim, their contention. We have read these much cases with interest and instruction. ag'ainst Some them hold in an that, action the master person employee, allegation a third not his in the petition complaint charging or the master with the em- ployment incompetent of an unskilled or servant does charge negligence, the master actionable with but damages only negligence he liable for the of his occurring injury. servant at the time of the Other cases apparently it cited hold is error for trial court, in by stranger against charge an action the master to jury, give allowing jury, or to an instruction to take negligence into consideration facts show employment incompetent inexperienced or ser- apparently vants. Other cited cases hold is error previous negligent to show acts serv- entirely negligence unconnected ant, acts proximately causing plaintiff’s injury. study
A careful and consideration of the cases cited, they us to the conclusion that however, are not in leads point allegation plain- in the instant case. We no find petition specifically charging tiff’s defendants with the incompetent employment inexperienced of an servant. bearing compe- The record evidence discloses no on the incompetency tency of defendants’ driver to have by plaintiff in chief, offered in his ease nor is there previous negligence evidence acts given jury driver. The instructions defendants’ appellants’ are not shown but the ab- record, stract of the record recites “the case was submitted proper instructions.” court to the under the Appellants Yawter, as their offered the own driver, asked, witness. direct “About examination, On *9 538 OE v. you running?”, he answered, how fast were “About attempt Appellants an hour.” five did miles expert qualify speed, tbe tbe witness as matter of testimony non-expert but, nevertheless, as was en jury. It was for tbe titled consideration weigh give testimony and to it to jury bis credit as the such experience, to,
deemed
entitled
based
tbe
knowledge
and means of
observation,
tbe witness.
Ry.
[State
216 Mo.
Mo.
420;
v.
Walsh
Pac.
v.
Watson,
App.
102 Mo.
Flach
209 Mo.
Co.,
582;
Ball,
389;
v.
Aston
App. 226.]
v.
Transit
105 Mo.
Co.,
St. Louis
respondent
right,
think,
It
we
follows,
bad tbe
question
on
experience,
tbe
as
cross-examination,
witness
to his
accuracy,
knowledge
and means of
touch-
speed
in order
tbe
to affect tbe
weight
testimony.
Bay
[Johnston
of bis
State Street
Ry.
Berry
(3 Ed.)
222 Mass.
on Automobiles
Co.,
583;
testimony
weight
speed
as
991.]
sec.
Tbe
to tbe
running,
degree
is affected,
tbe automobile
to some
times,
at
tbe number of
and under what circum-
least,
testimony
driven an automobile. Tbe
be bad
stances,
opportunity
little or no
to become ac-
of one who has bad
operation
quainted
speed
of an automobile
with tbe
compared
weight
testi-
with tbe
of little
value
mony
priven an automobile and has
who
often
of one
has
judge
speed by
opportunity
of its
to observe
experience. On cross-examination
actual
reason
bis
question
may
will test bis
which
a witness
accuracy
be asked
question
veracity,
tbe
however irrelevant
Davis, Mo. c.
[State
may
the facts
issue.
be to
cited.]
and cases there
704,
In Dean v. Wabash examination on direct train, tbe conductor what be observed of asked defendant, witness for cross-examination, accident. after tbe On train many passengers were asked bow be was objected question injured, many which and bow immateriality. tbe evi- court admitted Tbe trial Yol. 305] OCTOBER TERM, 1924.
Kleckamp Lautenscklaeger. v. appeal, and this deuce, court, on held the cross-exami- legitimate. nation to be
Finally,
scope
of the cross-examination of a wit-
ness is a matter which must
largely
be left
to the dis-
cretion of the trial court. Unless that discretion is
appellate
abused, the
courts
reluctant
to interfere.
Railway
[Mefford
App.
v.
Co., Mo.
1 c. 653; State
Boyd,
We find no error in the admission of the evidence complained assignment against appel- of and rule the lants.
II. Is the verdict excessive ¶ broken, right leg
Plaintiff testified that his was about way hip half between the and knee. He was taken to a doctor from office, doctor’s home. his He was confined to at bed home about seven with a weeks weight heavy pulley leg. and attached his He was Mary’s Hospital, then taken to St. where he remained in weight nine For bed weeks. two weeks a was fastened to operation leg performed, plain- and then an his was while operation tiff plain- was under an anaesthetic. After the put plaster-of-Paris extending iñ tiff was from cast, plaster-of-Paris toes to his chest. He in remained injured August cast about six weeks. He was on 23, and hospital left on December 11,1920. He then taken kept 20, February home and bed until about 1921. Pie up in a chair then sat for about two weeks, wheel after which he walked crutches until some time in March, then walked for a time with the aid of a cane. Dur- pain all that time, suffered still suffered at years nearly the time after he was in- trial, jured. right pain point extends from the knee to a hip. half-way walk, between the He able knee limp, only half-way. but with a his knee and can bend pain He able to run never without and is leg. working right At the time of trial, OP wagon gets up and down on the huckster. waits employed Had thus about three
on customers. trial. four months before injury, on date of about Dr. Yeck examined complete Found fracture in the afternoon. 1:30 leg. Ordered in the middle lower third femur plaintiff put leg .Hodgkin’s home and removed weights splint, swinging attached. pulley on a weights and then removed the it for about six weeks, Left having place. slipped, union not taken Oc- the bones On showing taken, X-ray photograph tober oblique the femur and an lower third of fracture of the *11 hospital overriding Plaintiff taken to bones. of the .was attempt day following to the an made set and X-ray, remain. Dr. not Mc- an but would under bone, plated. suggested the bone be and then Donald was called leg Weights applied the over- to to the overcome plate riding a silver was screwed 22, until October when healing place. position until took hold it in to the bone to wiring put neces- plate was on, After additional the was leg had position. sary the believed it in to hold Witness extent, normal. is completely to certain a healed The flexion the knee. about two-thirds Plaintiff has might plate An irritation to the bone. attached remains necessary plate, making removal. its the be caused ever full will have flexion not believe Does perma- which is more or less adhesion, There knee. nent. plaintiff for the first time on Dr. McDonald saw X-ray photograph plaintiff’s 1920. An 5, October showing leg taken on fracture of was October right femur, of the between the knee and the lower third splintered. passing hip. The bones were The bone half inches. Plain- of one and a each other for a distance attempt placed made under anaesthetic and tiff was stretching’. overriding of the to reduce the bones weights splint leg heavy put in a to bed with his days, leg. or After ten twelve to lower attached operation overriding. An de- the still bones were Lautenscklaeger. open separating leg the hone, the ent on, cided apparatus to stretch the muscles and an used so tissue, might pried plate place. A into that the silver hones long, using three on each side of four screws inches applied. was fastened around then Wire break, was plate prevent pulling out of the screws con- A inserted for the muscles. drain was three traction of days, kept plaster in a cast for and the limb was six right leg leg. inch than the is one left weeks. shorter tilting pelvis, hip accommodated of the This is sags hip bone down one inch lower bone. One throwing opposite body line, out one, ‘ body ‘lopsided.” impossible It is almost to make the run and in his work there will be strain on tilted Plaintiff the muscles on side. has full bring about knee. He can it back three- flexion of the slight quarters There normal distance. bow- leg. plain- plate has not removed. If injury there, another it should cause tiff suffer should necessary plate pain, out. From it will be to take per plates forty fifty to be cent of such have removed. leg open by cutting the The method of removal is plate taking infection, the risk of off. There is operation blood-poisoning, remov- connected with permanent leg al. Witness considers *12 one. injuries plaintiff’s apparent were se- that
It is to us bed, painful. at home and confined to vere and period months. hospital, six His almost in the for a of other., right leg and has than the one inch shorter is testimony of the knee. not full flexion of permanent. physicians Plain- that these is conditions are trial, nearly pain of at the time tiff suffered still injury. years $8,000 is the While after he received judg- although the not bound and sum, we round damages if think jury.as we amount of ment of the just, the jury nevertheless, the more liberal than has been duty jury, placed instance, first in the the on the law has OP
Landau v. Pac. Mutl. Life Insurance Co.. determining damages of the amount of to be awarded. opportunity judging subject, had a better of the injured boy of the view and his witnesses, has n this only printed which court, sees cold, the record. We largely judgment. must defer to their [Dean v. Railroad Co., 1. 458.] Mo. c. do not think the verdict in- We passion prejudice jury. dicates light Neither do we the deem the of verdict excessive testimony. all the
Finding judgment no error in of record, Lindsay, trial court and should affirmed. be, is, same C., concurs. opinion foregoing PER CURIAM:—The Sed- adopted opinion
don, C., is court. All of Judges concur. MUTUAL AMELIA CORINNE LANDAU PACIFIC Appellant. LIFE INSURANCE COMPANY, Banc, In December 1. ACCIDENT INSURANCE: Pleas: Ten- Suicide: Accidental Means: Indemnity. der of resulting Suicide from Death accidental species suicide, is not a sense result nor is suicide injury; payment thirty policy accidental for the and accident thousand dollars is in case the insured’s the result ac.ci- death means, dental and of one thousand dollars in case of his death from suicide, provides payment indemnity upon happen- for the casualties, unrelated, contradictory, of either of two distinct other; negatives for the existence of one the existence of therefore, larger alone, where sues for the amount basing means, charge claim her of death from accidental denial, general . defendant raises the issue tender of its gratuitous, indemnity except is suicide that indirect means, denial that death was caused accidental and therefore illogical unnecessary, issue, to confuse the for the general bodily still issue is whether the insured a result of died injuries through means, accidental and the burden effected is on issue, general that to establish under issue de- any evidence, including proof suicide, fendant can offer prove plaintiff’s never existed. tends cause action