RHEUAL W. MICKEL V. GUY A. THOMPSON, Trustee of MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
Division One
December 12, 1941
156 S. W. (2d) 721
991
The judgment is reversed and the cause remanded with directions to enter judgment granting the peremptory writ of mandamus. Bradley and Dalton, CC., concur.
PER CURIAM: - The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.
Plaintiff was a brakeman and had been employed by the Missouri Pacific for about seventeen years. He was injured while at work at Russellville, Arkansas, about 6:30 A. M., November 21, 1938. The applicable Arkansas law was pleaded. It is alleged “that on or about the said 21st day of November, 1938, while plaintiff and defendant were engaged in intrastate commerce and transportation, and while plaintiff, in the usual course of his employment by defendant, was riding on top of a certain freight car which was coupled to another car moving in a cut of cars over and along defendant‘s tracks at Russellville, Arkansas, defendant, his agents, servants and employees (other than plaintiff), negligently and carelessly caused, suffered and permitted the aforesaid cut of cars to become separated, directly thereby causing plaintiff to be thrown from his aforesaid position to the ground and to sustain the hereinafter described injuries and damages, when said cars collided after having been negligently separated as aforesaid.”
The petition goes on to set out in detail the injuries alleged to have been sustained. The answer is a general denial. There is no claim that plaintiff did not make a submissible case, hence it is not necessary to detail the facts.
Error is assigned (1) on alleged misconduct of plaintiff‘s counsel; (2) on the action of the court in ruling out questions asked by defendant when no objections were made, and in not sustaining objections made to improper questions, and not instructing to disregard answers to certain questions; and (3) on an alleged excessive verdict.
It is alleged that plaintiff‘s counsel was guilty of misconduct (1) “in repeatedly offering in evidence alleged reports of doctors, when he knew that such reports were at most hearsay and for that reason not proper evidence;” (2) “in intimating to the jury that appellant controlled the courts and juries of the State of Arkansas; that because of appellant railroad, respondent could not have obtained a fair trial in his home State of Arkansas, and that anything the appellant touched was thus contaminated so as to cause fear to respondent‘s counsel;” (3) “in calling individual jurors by name and by advising one juror that he would place his hat on the hat rack, which counsel did;” and (4) in the cross-examination of defendant‘s witness, Middleton, conductor of the train with which plaintiff was working when injured.
In order to appreciate the assignments on alleged misconduct, it will be necessary to deal with the evidence, for the most part, as it appears in the record. Plaintiff was examined by Drs. Willis C.
The statements of Drs. Campbell and Semmes appear in the abstract, but it does not appear that they were either passed to or were read to the jury. Plaintiff‘s counsel says that they were not, and from what subsequently occurred it is quite clear that these reports were not before the jury. After the incident above mentioned concerning the reports of the Memphis doctors, and when plaintiff was on the stand and under cross-examination, he was asked by defendant‘s counsel if Dr. Hunt had told him that he had a herniated nucleus pulposus, and answered, “yes.” Then he was asked when Dr. Hunt told him, and he answered that Dr. Hunt so told him when he (Dr. Hunt) “got Doctor Campbell‘s and Doctor Semmes’ report back from Memphis.” Then defendant‘s counsel, in effect, asked if it appeared in these reports that he (plaintiff) had a herniated nucleus pulposus, and plaintiff‘s counsel interposed the objection that the reports were the best evidence. Then followed a crossfire between counsel, as follows:
“Mr. COLE (counsel for defendant): I object to that; this fellow (plaintiff) is trying to put something in evidence that is not in the report. Mr. EAGLETON (counsel for plaintiff): Then I suggest that the best evidence is to put them (the reports) in. Mr. COLE: No, the best evidence is to bring these fellows (Drs. Campbell and Semmes) here, or try the case in Arkansas. The COURT: I wish counsel would
The crossfire was in the presence of the jury, and upon its termination the following occurred out of the presence of the jury: “Mr. COLE: At this time I ask for a mistrial in this case in view of the manifest improper things that have happened here, and I‘ll ask for a mistrial, I don‘t think I can have a fair trial before this jury because Mr. Eagleton intimated to me that in keeping these reports out I am doing something that is not proper, and Mr. Eagleton has tried to get into this record the contents of these reports, and they are not proper evidence (italics ours), and he has intimated that they say this man has a herniated nucleus pulposus, and I say to the court that they don‘t say any such a thing.
“Mr. EAGLETON: If the court please I want the record to show that the motion made by defendant‘s counsel was the first thing that was made outside of the presence and hearing of the jury, and that prior to that time he was the one that was guilty of gross misconduct and impropriety in lecturing counsel, and he is the one that brought up the subject of these reports by asking the witness, by saying to the witness, in effect, the reports did not contain any mention of herniated nucleus pulposus, and I made the objection that the reports were the best evidence of what they did contain. . . .”
Defendant‘s request for a mistrial was refused and exception saved. . . . There was no adverse ruling on, and no exception to what occurred at what we may call the first incident pertaining to the suggested reading of the reports of Drs. Campbell and Semmes, of which defendant complains. In the situation there is no point for review. [Osby v. Tarlton, 336 Mo. 1240, 85 S. W. (2d) 27, l. c. 31, and
Defendant complains that plaintiff‘s counsel was guilty of prejudicial misconduct in intimating to the jury that defendant controlled the courts and juries of Arkansas, and that plaintiff could not have had a fair trial in his home state. This complaint is based on what occurred during the direction examination of plaintiff‘s wife, Lillian Mickel, but the background was in the cross-examination of Dr. Hunt, plaintiff‘s witness. Defendant‘s counsel, on the cross-examination of Dr. Hunt, made inquiry as to the medical services he had rendered plaintiff and what charges he had made. Dr. Hunt stated that he had seen plaintiff twice a week, but his books did not show that charges were always made twice a week, and he was asked about this, and answered: “The boy was out of work, and he didn‘t have any money, and I said to the nurse (in Dr. Hunt‘s office, as we infer), ‘I don‘t think the boy can ever pay anything.’ . . . Q. What do you mean he couldn‘t pay anything, he owns thirty-six lots down there (Clarksville, Ark.) and he is getting sixty dollars a month from the insurance company, and his wife has a studio? A. Thirty-two lots in Clarksville, I wouldn‘t give him thirty-two cents for it. Q. Answer the question? A. I don‘t know whether he has thirty-two lots in Clarksville, but I have more than thirty-two lots and I‘ll trade him sight unseen and I don‘t know where his are. Q. They are worthless? A. Absolutely. . . . Q. You don‘t have to pay any taxes on them? A. They charge me taxes, I would like to get rid of mine. Q. Did you make any investigation to find out what money he had when you say the reason you didn‘t send him a bill you knew he didn‘t have anything? A. No, I never investigated anything, I don‘t care, I have a living without it. Q. What about this photograph studio, doesn‘t that belong to her (plaintiff‘s wife) down there? Mr. EAGLETON: I object to that, the fact that his wife is interested in a studio. Mr. COLE: She owns it. Mr. EAGLETON: I think she has some interest in it, I‘ll put the woman on the stand and let you ask her about it. Mr. COLE: You do know they had property? A. No, I know the home they are living in that this girl built and bought before she married, but whether he has ever paid her and her brother for it I don‘t know. Q. Do you know whose
When plaintiff‘s wife was on the stand she testified as follows: “Mr. EAGLETON: Do you know what the value of your interest in that business (studio) is? A. Fifteen hundred dollars. Q. Fifteen hundred dollars? A. Yes, sir. Q. Now, has that amount of interest, has that been bought and paid for by you? A. No, sir. Q. How much has? A. Four hundred dollars. Q. You owe the rest of it? A. Yes, sir. Q. Now, Mr. Cole mentioned the fact that you or your husband owned thirty-six lots in Clarksville, I will ask you if it is a fact, or not? A. No, sir. Q. How many lots do you own? A. To be exact, twenty-seven. Q. Twenty-seven lots? A. Yes, sir. Q. And what is the value of those lots, please? A. Two of them one hundred and fifty dollars each. Q. One hundred and fifty dollars each? A. Yes, sir. Q. What‘s the value of the others? A. From five to ten dollars. . . . Q. There has been mentioned further that there is a home, what is that home, what‘s the value of the home with the ground upon which it is located? A. Fifteen hundred dollars. Q. Is that bought and paid for? Mr. COLE: I suppose we are going to go into collateral matters. Mr. EAGLETON: We will have to prove a lot of them, if you want to bring them out. You were not satisfied when the answer was made about the thirty-six lots and trying to make the jury believe that here is a man that is rolling in wealth. Mr. COLE: He has plenty, but if they ask her about it we want the privilege of going into it ourselves. Mr. EAGLETON: Oh, yes, you can go into it. Mr. COLE: If you had a jury of Arkansas people go into it-Mr. EAGLETON: I prefer to go into it where I can get a fair chance, I am afraid of anything your railroad does. Mr. COLE: You are afraid of it? Mr. EAGLETON: I am afraid of anything you people touch.”
No objections were made by defendant, hence again there is nothing to review.
Complaint is made on the alleged ground that plaintiff‘s counsel attempted to get too friendly with the jurors. There is nothing in the record to show what counsel‘s conduct towards the jury was except in defendant‘s motion for a new trial, and the motion cannot prove itself. [Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S. W. (2d) 154, l. c. 158; Sennart v. McKay (Mo.), 56 S. W. (2d) 105, l. c. 109; Engleman v. Railway Express Agency, 340 Mo. 360, 100 S. W. (2d) 540, l. c. 544.]
The fourth and last complaint on alleged misconduct, as stated, relates to the cross-examination of F. Middleton, conductor of the train with which plaintiff was working when injured. Defendant says that the questions were “designed only to secure sympathy of the jury.” Plaintiff‘s counsel asked Middleton if plaintiff had
We do not think that the evidence that plaintiff was “a good worker all the time,” even though not material and not proper; was of sufficient consequence to justify reversal and it would seem that defendant did not regard such very seriously. Defendant put on the stand C. A. Menea, a brakeman in the crew when plaintiff was injured. On cross-examination, Menea was asked if plaintiff “was a strong and vigorous worker,” and without objection, answered, “Yes, sir.” It is true that one does not, in order to be heard on appeal, have to continue to object to the same character of questions, but the difference between the questions was, we think, sufficient to suggest objection to the question asked Menea, if such evidence was seriously regarded as prejudicial.
Defendant complains that the court erred in ruling out questions when no objections were made by plaintiff, and in failing to sustain objections to improper questions, and in failing to instruct to disregard answers to certain questions.
Under these assignments, defendant points out, in the record, three instances in which error is claimed. These follow:
(1) When plaintiff was on the stand this occurred. “Mr. COLE: Why didn‘t you bring suit in your home county? The COURT: That is argumentative. Mr. COLE: I object and except to the remarks of the court; there is no objection to that question. Mr. EAGLETON: I don‘t care to object to that; he can answer the question.” Plaintiff asked what the question was, and Mr. Cole restated it as follows: “Q. Why didn‘t you bring suit in the county where you knew everybody, where you had grown up as a young man, and where your father lives, and your brother lives; you discussed that, didn‘t you?” Then followed another crossfire between counsel, and plaintiff finally stated that he turned his case over to Mr. Eagleton, and that it was Mr. Eagleton‘s “privilege to file it where he saw fit.”
(3) In the cross-examination of plaintiff as to what occurred on the occasion of his injury, the following occurred:
“Q. He (brakeman Butler) did tell you he pulled the pin? A. Well, not in time. Q. Why didn‘t you tell the jury that; I asked you if he told you, before the accident occurred, that he had pulled the pin, and you said he didn‘t? A. Not to the extent it meant anything. Q. In other words, you were told, but you say you didn‘t have enough notice of it? A. That‘s right. Q. I will ask you again if you didn‘t tell Butler to do this very thing, and have . . . the agreement, on the ground, that Butler was to do it? A. I never done it. Q. And you had changed your mind about it? A. No, sir, I didn‘t. Q. And if you didn‘t tell the engineer, the man that held you in his arms, that the whole thing was caused by the fact that you got the signals confused? A. No, sir. Q. You say you didn‘t have that conversation? A. No, sir, I never done it. Q. Would he have any reason to lie about it? Mr. EAGLETON: I object to that question, it is improper. The COURT: The objection will be sustained. Mr. COLE: Save my exceptions.”
Able counsel fails to direct our attention to any authority that would support a reversal on either or all of the three instances mentioned. Manifestly, there is no substantial merit to these assignments.
Is the judgment excessive? As stated, the verdict was for $60,000, but there was a remittitur of $25,000, leaving the judgment at $35,000. Defendant, in effect, says that the verdict was not only excessive, but was so excessive as to indicate passion and prejudice on the part of the jury. Dr. Earl H. Hunt, Clarksville, Arkansas, treated plaintiff from the day of his injury, and testified: “He was suffering so I couldn‘t give him a thorough examination; he was sore and had a cut chin, and shoulder hurt, and knees and back and hip, and his abdomen was distended; I didn‘t want to turn him over because I didn‘t know he wasn‘t hurt internally, he had such a jar, such a stop when he came off of the car and hit the ground, he stopped so sudden I thought he might have torn something loose internally.
“There was a tenderness, under pressure, over the lumbar sacral joint, that is pressure over this joint, that is the joint between the pelvis and the spine, particularly on the right side, was tender on pressure. Now there was atrophy, or wasting, of both hips and both legs, and that was particularly true to the left hip and on the left thigh and left leg. They were smaller than normal and the muscles are somewhat wasted. There‘s an atrophy, or wasting, of the left buttock muscle and on slight strain this left buttock muscle becomes spastic and jerky. . . . The coccyx, or tail bone, is deflected to the right. . . . Now I went over the question of sensation, pin prick sensation of the hips, thighs and legs and I found a partial anesthesia, there is a partial numbness, particularly of the skin of his thighs and legs, and I found this anesthesia particularly more in the crotch area, or the area sometimes known as the saddle area. . . . It was my opinion that this man had suffered, and is at the present time, suffering from damage to the nerve structure in the neighborhood of the lumbar sacral joint. . . . The nerve structures have been either damaged by a displaced disc between the fifth lumbar vertebra and the top of the sacrum, or the central part of that disc has been exploded, in the spine, but either one of these two conditions occurred and retraced their steps, but at the same time left damage to the nerve structures within the spine. Q. Is that character of damage that you found there a painful condition? A. It is. Q. Is it one that disables a person who suffers it, that performs manual work? A. It does. Q. Assuming that he has suffered pain from the time of his injury on November the 21st, 1938, almost two years ago, down to date, in that region, would you say that he is reasonably certain to continue to suffer pain in that region in the future? A. It is my opinion that he will.”
Several physicians testified as witnesses for the defendant, but it could serve no good purpose to detail their evidence. According to defendant‘s medical evidence, plaintiff‘s injuries were not very serious. The jury, however, was the sole judge of the weight of the evidence and credibility of the witnesses.
At the time of plaintiff‘s injury, he was in good health; was thirty-six years old, and was earning about $2250 per year. “It is generally held in State courts that ‘where future payments are to be anticipated and capitalized in a verdict, the plaintiff is entitled to no more than their present worth.‘” [Gill v. Baltimore & Ohio R. Co., 302 Mo. 317, 259 S. W. 93, l. c. 97.] The present worth of an annuity of $2250,
Plaintiff contends that $35,000 damages are not excessive, and in support of this contention, calls our attention to the cases presently mentioned. The injuries in these cases were not the same, and not the same as in the present case, but in each case the plaintiff was totally and permanently disabled from doing manual labor, as was plaintiff in the present case. To set out the evidence as to the injuries in these cases would unduly extend this already too lengthy opinion. In Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S. W. 777, the plaintiff was thirty-seven years of age when injured; annual earnings were $2300. He got a judgment for $50,000. This was reduced on appeal to $35,000. In Span v. Jackson, Walker Coal & Mining Co., 322 Mo. 158, 16 S. W. (2d) 190, the plaintiff was thirty-six years of age when injured; annual earnings were $2000. It was held that $50,000 was not excessive. In Rose v. Missouri District Telegraph Co., 328 Mo. 1009, 43 S. W. (2d) 562, the plaintiff was thirty-one years of age; earnings were $5 per day. It was held that $40,000 would not be excessive. In Aly v. Terminal R. Assn., 342 Mo. 1116, 119 S. W. (2d) 363, the plaintiff was forty-two years of
Defendant, in effect, says that plaintiff was not injured at all; that “the trial was a travesty on justice;” that “the so called remittitur is a blind guess;” that “there is no real proof of real injury.” But defendant makes no effort to point out the evidence to support these assertions. There were sixteen doctors who were witnesses; seven were called by plaintiff and nine by defendant. About 175 pages of the record are taken up by the evidence of these doctors, yet on the assignment, based on excessive judgment, defendant, in the brief, devotes scarcely more than a page.
“The question of excessiveness of the verdict must be considered from somewhat the same angle as a demurrer to the evidence - all the evidence tending to support the verdict must be taken as true.” [Peterson v. Kansas City, 324 Mo. 454, 23 S. W. (2d) 1045, l. c. 1049; Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S. W. (2d) 27, l. c. 30.]
In West v. Kurn et al. (Mo.), 148 S. W. (2d) 752, the damages were reduced from $45,000 to $35,000. In that case the plaintiff was a member of a switching crew; was thirty-six years old at time of injury, and his annual earnings were $200 per month. “He sustained a fracture of the jaw, which prevented his teeth from closing and meeting properly, a fracture of one or more ribs, and a comminuted or splintered compression fracture of two or more vertebrae of the spine at the twelfth dorsal level. Fracture of the spine was such that the body of one of the vertebrae was crushed into a wedge shaped piece and caused to protrude rearward into the spinal canal, and the posterior portion of these vertebrae, which cover the spinal cord, known as the laminae of the vertebrae, was fractured, resulting in bony impingement upon the spinal canal, which caused fracture or lesion, and tight compression of the spinal cord and injury or lesion to the cauda equina (the lower termination of the spinal cord), consisting of the aggregated sacral and coccygeal nerves; and involvement of the nerve roots by particles of bone from the fractures. Plaintiff was in defendants’ employees’ hospital at St. Louis for over six months, with the exception of one or two brief periods of about a week each during the summer. For several months he was completely paralyzed from the waist down, but that paralysis partially subsided thereafter. During this time he had no control of his urine, and a catherization tube was kept in him continuously, and he likewise had no control of his bowels. He was at first completely encased in a plaster case from his armpits to his hips and later was kept stretched out on a fracture bed by means of weights and extensions applied to his body. He suffered severe and continuous pain.”
The injuries in the present case are not, we think, as serious as in
If the rule as to uniformity in the amount of verdicts is to be maintained, we think that the damages in the present case should be reduced to $25,000. Therefore, if plaintiff will, within ten days from the filing of this opinion, enter here a remittitur of $10,000, the judgment for $25,000 will be affirmed. Otherwise, the judgment will be reversed and the cause remanded. It is so ordered. Hyde and Dalton, CC., concur.
PER CURIAM: - The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.