*1 761 Mo., Charles, 449, 27]; State v. [26, 463 MOSS, Respondent, Lawrence Hulbert, 830, [9]; v. 835 268 S.W.2d State Mo., 499,502 228 S.W. v. [8]. MINDLIN’S, Incorporated, a Missouri points remaining XIX. The Corporation, Appellant. Sev appellant’s brief without merit. are No. 45108. points The fall within issues
eral ruled. testimony admitting Supreme Missouri, erred in that the court Court of Franklin Dr. Stremlau that Officer John Division No. 1. upon arrival at pronounced dead Stewart 10, Dec. 1956. testimony of hospital that all be excluded been Fred should Stewart en Transferred Court Banc 14, Jan. 1957. court identify appellant he failed cause objections because review no are not for May 13, Remanded Division No. 1957. interposed at the issues were raising the Marshall, 354 Mo. trial. State v. Appellant does
S.W.2d [6].
point nothing where and we find out appellant’s record assertion to sustain permitted to State was
that counsel manner challenges for “in such
make cause peremp twenty additional to amount abuse
tory challenges State.” .No re first is shown the court discretion appellant’s motion
fusing, overruling after rested, appel acquittal after State Stаte wit request recall certain
lant’s upon appellant authorizing
nesses the court call the witnesses them examine points, per witnesses.
adverse Other discussed,
haps points general some too are specify why they asserted
in that do not Sup.Ct.R.
action of court was error. 547.030; Mc-
27.20, 1.08(a) (3); State §
Lachlan, cases cited. Mo., See 283 S.W.2d paragraph XVII, c, supra. [5] indictment, transcript forth the
The sets presence at arraignment, defendant’s verdict, trial, according of allo- They
cution, judgment and sentence. proper form and
are in sufficient. judgment is affirmed.
The STOCKARD, CC.,
BARRETT and con-
cur.
PER CURIAM. opinion BOHLING, foregoing
C., opinion adopted of the court. as the
All concur.
looking over shoulder at live his left process models who were then dolly showing sportswear in the store. *3 platform was a feet wood x 5 about 2½ high. resting on four 6 inches wheels about open; One end at the platform was bars, top- other were the three above steel (about most of which handle bar was a dolly by feet from the floor) which the propelled. could be erred contends the trial court overruling the discharge its motion to plaintiff’s ground counsel that jury argument prejudicially injected the It coverage. fact of defendant’s insurance appears to beеn conceded that Cen- Surety Corporation tral & Insurance interested in action. the defense the objection, plaintiff’s Without voir ex- dire questions amination con- included the usual cerning company connection with that acquaintance employees. of its with certain plain- during Insurance was mentioned not McNutt, tiff’s case. Defendant’s John plaintiff pushed dolly whom claimed Dabbs, Beeson, Richard H. David P. him, into that testified on cross-examination Arnold, appel- Kansas for City, Dean F. he met defendant’s trial counsel two lant. weeks preceding trial and volunteered that such him counsel not talked with Lyman Field, Gentry & Rogers, Field, happened. when Plaintiff’s Richmond, City, the accident Jackson, Kansas Marvin P. counsel, any implication counsel that de- Carr, disclaimed City, L. Kansas Charles present fendant’s trial counsel was at respondent. whereupon accident,
time witness volunteered, objection and without without COIL, Commissioner. “No, subsequеnt strike: I mean motion to injured know, man, he Lawrence Moss was when not he was the insurance Inc., came, Mindlin’s, a re- lawyer came, I fell on the floor mean at City, shortly happened.” he store Kansas after time when tail this departed from an He ob- elevator. brought Plaintiff’s counsel later out $50,000 judgment and Mindlin’s tained pic- cross-examination extensive therefrom. appealed showed defendant’s claim as to tures which at acci- dolly position the witness and was that evidence defendant’s Plaintiff’s posed pictures five pushed hand were taken employee (referred truck time dent subsequent fall dolly) right days ankle as into to as hospital and at a time when no De- walked elevator. defendant; against employee had been made was that its claim evidence fendant’s connection, pressed and, an an- stationary dolly remained and that with that, why as defendant it was entangled feet fell whén his swer dolly other, time clаimed the fact that at that each contributed any way and rio claim was, had been partially right, he turned involved he counsel, was, agree neverthe- while dolly refusing made that it insurance, part picture. again less On redi- would not mention never- made rect, out, theless brought over that he did not intend defendant’s counsel indicated unduly repeti- questions so objection question was frame his future as to that the tious, emphasize court photographs insurance. The that at the time the two fact of specific any were “re- indicated rule taken the McNutt was witness quested if it dolly exactly matter in when and place that connection position Im- arose. further mention it was when fell.” There was no Mr. Moss mediately during recross-examina- insurance the examination of thereafter on inquired tion *4 counsel as to other witness. requested identity person of the who had counsel During argument plaintiff’s place dolly position, witness the in that to credibility was attacking of the witness the lawyer replied and “The witness that it was testimony al- McNutt as his that he had to for the insurance firm.” Plaintiff’s coun- ways pushed it pulled dolly the and had not inquired why sel then it that the “law- was Plaintiff’s because he had a stomach. sore yer for firm” anxious to the insurance was argued counsel that if it were true dolly get picture dolly the the when the dolly at time the of the accident the according nothing had to the fall do with position photograph, the shown again And defendant. is, stationary standing in with McNutt employee inquired why counsel another bar front of and with his back to the handle standing whom witness McNutt said was him, and dolly thus with the entire behind at other entrance the side of the elevator that, it were true defendant fall, posed at the time of the was not claimed, simply because' had fallen picture reproduction the if it was an exact feet, then, “got up he all in his tangled they of the conditions as existed at the * * * neсessary why to- on earth was it time of the fall. In the course of that póse [plaintiff] was pictures these while he questions examination one of the included only hospital days five after still the lawyer
the statement “When the insurance Why company, fall ? did insurance * * * days picture] took it five [the admitted, pictures as McNutt have these after the fall.” posed?” objection any There was no of those jury’s hearing, Out of the ob- defendant questions or answers and there were no jected ground and moved a mistrial on the any motions strike of the answers. that the statement an intentional and Thereafter, chambers, at a conference in de- prejudicial injection of fact of de- fendant’s counsel admitted that Mr. fendant’s insurance coverage and constitut- Windsor, an investigator for Central Sure- argument ed an insurance against the com- ty, accident, investigated the instant pany. objec- The trial court overruled procured рhotog- of a services tion and commented that defendant’s wit- rapher, pictures taken were ness brought out fact of insurance present. when Mr. Windsor was Defend- investigation on examination defend- counsel, ant’s there had been con- suggested ant’s counsel the court that objection siderable about ob- while he had made no or motion examination it without ection, j obj because of and that the instant discharge the men- ection came Immediately thereafter, plaintiff’s the reason that in too of insurance for his late. tion said, argument matter thus far had counsel resumed his view the come into inadvertently, say you, I thought gentlemen, that the “And ladies and the case lawyer man, should be conducted when the insurance rest of the case without as John * * * says, pictures, McNutt of insurance. trial court took took these mention nothing preserving he was position that there be- evidence at that time en- * * * rule, trial, plаintiff’s visioning why on whidi fore it didn’t trayed only posed supervisor’s pictures taken and idea. theWas you have some company’s there insurance supervision he said was an act man that insurance at the which up “might floor evi close of the influence or color the showed a dence on show that fell merits” and thus make the place where he wasn’t disclosure uneven, supervisor there was an em linoleum wasn’t ployee company obstruction?” of the covering stain or insurance dirt there or counsel, relevant and argument, plaintiff’s material? Buehler Festus closing And Co., had been entire case Mercantile arguing that the Mo. 119 S.W. step in the 2d course, up,” contrary, first “shaped said that the On [9]. may these began “with be said “shaping-up” process though plaintiff that even lawyer could pictures insurance show phony pictures that the that the were taken supervision under the days of the accident'—no agent, took within five of defendant’s made, claim, out in the nothing man interest appear no from the fact dolly hospital, got truck there. that he agent, defendant’s up shape starts.” fact That is when the that he employee was also investigating insurance carrier add *5 apparent argu the It is once at nothing to affect credibility the of the by plaintiff’s ment counsel wherein made picture. Clayton But see v. St. Louis Pub company, referred to insurance insurance Co., lic Service Mo.App., 621, 276 S.W.2d lawyer man, an exact reference was 2], 624 [1, respect testimony in that which had to the objection. The come case without noted, however, into the As we do not rule fact, however, that the had come question. evidence ap That is because it seems wholly ir objection, parent in without if it was plaintiff’s us that argu counsel’s purpose, any relevant and accomplished immaterial for ment nothing more than to re justify would not the use of such evidenсe jury the unobjected-to mind evidence making argu prejudicial an unfair and already which was extensively before it. 528, Najim, Amsinger ment. v. 335 Mo. argument gave jury the no further in 214, 73 216. In our S.W.2d view formation than that which had been force we need not rule at whether the evidence fully brought its attention during the time offered was relevant and material say jury trial. To that reminding the upon credibility of the witness McNutt evidence, an accurate manner con upon weight given to be the crucial argument nection with an directed to the pictorial observed, may evidence. It be liability (not issue of damages), could have however, testimony that McNutt’s as to prejudiced any greater the defendant to picture true, the correctness of the was prejudiced extent than it had by been recover, could not it thus was is, heard, evidence had in our judgment, proper plaintiff’s probe counsel to point unrealistic and unsound view. We verity only not witness’ statements argument out that the was not but to examine into the circumstances under damage made on the issue inor connection pictures taken, been and in verdict, with the size of the and that it did pictures that connection show that the imply not liability that a insurance car supervision been taken under the of one rier pay verdict returned. It financially not, who was interested in defeating was as in Buehler v. Festus Mercan plaintiff’s may Co., supra, claim. It be that the tile S.W.2d 969 [10], “a di appeal entitled draw the $50,000 inference that be rect to return a picture posed cause paid under the by verdict because it would be some supervision company of an rep not, insurance one else.” It was Phillips as in v. resentative, truthfully portray Vrooman, Mo., it did not 626, S.W.2d position dolly witness’ with the at the time the effect that a verdict in the case would but, contrary, por accident particle. not hurt the defendants a And evidence, O’Brine, push truck, the hand mentioned Rytersky like this is not a case plaintiff, must there into then be your verdict wherein 70 S.W.2d Mo. favor of before defendant.” unobjected-to was no evidence in coverage jury showing insurance plaintiff’s With that background, counsel vestigation. closing argument that in his pointed out view, only Edna defend- Stark was the noted, mention of first As heretofore go along ant’s witness who would recross- on cross insurance occurred picture idea that the crucial witness examination of defendant’s entirely accurate suggested the trial may It counsel. reason defendant’s counsel said so little as- mistaken at the time on court ruled argument, about Edna in his Stark sumption counsel that defendant’s reason he had her examine the not had remains, fact answer. The elicited the stand, picture was on the she however, that, noted, unable are brought “Because on I cross examination perceive, under all circumstances out from her recоllection her that it was case, prejudice defendant how instant dolly slanting- that this truck was kind argument. was increased wise, said, Oh, she north than south. more contends that the trial court him, how hurt want that and he didn’t objection an- overruling its brought erred remember out. Do that? portion jury argument. other north slanting-wise, ‘Kind of more than Stark, employee-witness, man, south,’ Defendant’s Edna trip a that would sure wouldn’t dolly Oh, cross-examination that the boy, testified on it? hurt him. Edna how that *6 of of the was “kind at the time accident suggestive.” wasn’t that Stark angle and south slanting on an more north objected argument and Defendant to that and that “the low bed east and west” than jury that the instructed moved be to dis- slanting of dolly truck kind of the was regard ground it the that it was in fact on aisle.” While Edna Stark out into the “tripped argument plaintiff that defendant’s witnesses agreed with the other standing dolly while still” and thus [it was] dolly nothing had had to do that was outside issues. court com- fall, testimony plaintiff’s nevertheless her jury that he instructed the in mented contrary to defendant’s other witnesses was writing jury on all and that issues position dolly of the at the time as to the would those understand that instructions The others testified that the fall. of the represented the of the case. law Defend- to, away from aisle leading was dolly objection argument restated that the ant’s parallel wall im- and with the close to was was the submitted issues over- outside to, adjacent en- mediately the elevator ruled. argument Part of defendant’s was trance. correctly here Defendant contends proposition that the mere to the directed jury arguments that which are outside the witnesses were em- that defendant’s fact issues calculated to submitted mislead they suppose reason that ployees was no prejudice, urge or a theory jobs.” In that “lie to save their would or defense which the evidence claim does connection, commented on the tes- counsel justify, or not which conflict with the trial Stark, timony each As to Edna witness. submitting instructions in court’s is asked, you girl’s doubt that veraci- “Do sues, permitted. not should be Robbins v. ty? think that lie?” girl Do 1157, Corp., 363 Mo. Brown-Strauss 1166 noted, 643, was [4-6]; heretofore it 257 S.W.2d 648 [2], As Schrader Mo., theory Kessler, dolly recovery 178 S.W.2d [2], sole was 357 Thus, pushed plaintiff causing argument if him to the instant into fall. reason only jury ably subject to thd Defendant’s instruction 5 told the construction that jury “that did effect told the if it found McNutt in not could John
767 stationary 1. instruction, tripped alia, recover over That required a inter contrary finding dolly, and was that plaintiff thus “was at all times contrary recovery theory of exercise ordinary submitted care for his own safety.” in- defendant’s to and conflict with Defendant’s instruction told the 6 jury in de- merit to find struction there would be for defendant if not watching fendant’s contention. walking where he was was thereby proximately negligent. De- however, opinion, We are of the fendant here contends instruction argu of the that defendant’s constructiоn jury erroneous because it relieved the unlikely one. We ment in duty of its specific to make a converse of it was think a reasonable construction finding particular on issue submitted upon defense that it constituted an attack defendant’s instruction and because it accuracy pictures. testimony of the thereby gave jury roving commission event, any In clear that con we are to find any contributory free of an un suggested struction was not negligence. therefore, reasonable one. The trial court It appear, however, that the fail- ruling pertinent assignment de ure plain- instruction to have limited motion, fendant’s new trial considered the tiff’s freedom contributory negligence interpreted language it in the used and to a finding specific (failure issue .the light particular circumstances watch where he walking) submitted opinion argu case and was instruction was favorable to defendant. jury ment would not understood That must be true bеcause under instruc- meaning that which the now defendant tion 1 the plain- had to find that the Mo., Johns, contends. Stroh v. S.W. tiff was contributorily negligent either 2d and Rob 307. Stroh v. Johns respect other the Brown-Strauss, supra, cases bins v. were might imagine. may not suc- new granted which the courts had cessfully complain such a favorable sub- particular ground trials on the mission. arguments were outside the issues *7 urged recovery theories of or defense which Defendant contends that the trial court justified by plaintiff’s were not the evidence and erred in giving instruction 7. which in conflict with the trial courts’ proof were Instruction 7 a burden of was instruc- submitting contributory instructions the issues. We af tion on negligence. It referred plaintiff firmed new trial cases orders in those to defendant’s claim that was guilty ground contributory negligence jury on the that neither had the trial of told and prove that the burden was on holding defendant to court abused its discretion that plaintiff reasonably guilty that was of “such contribu- arguments there could have tory negligence” that unless and defendant objectionable been construed as and their so, jury finding had done on that prejudicial. In over-all effect the instant plaintiff. issue must be for We cannot case the trial court refused a new trial. agree with defendant that instruction 7 circumstances, Under the we hold that the was intended to be instruction position court, gauge in a favorable to conversing contributory negli- defendant’s particular argu of a judge the effect and gence instruction. Nor can we agree that ment, holding abuse its discretion in did not the instruction was erroneous because it did plaintiff’s argument the instant case that require specific findings particu- implication carry ascribed to did not contributory negligence lar which had been prejudicial was not for that reason it and submitted defendant’s instruction In- 6. to defendant. struction 7 contained the statement that de- plaintiff prove fendant had to Defendant contends that the trial contributory negligence.” giving guilty of “such erred instruction court together any pain, and argument suffering all the future All and the evidence contributory- respect you may disablement which find and believe both counsel with re&ionably as probable the one it is negligence evidence referred plaintiff may expected suffer and un- watching where plaintiff was whether therefore, hold, dergo injuries.” as a said must direct result of walking. We under- not but have jury could argues Defendant that if the items which contributory negligence” stood “such are num- paragraph mentioned were out- contributory negligence referred bered, pain suffering future are in- and instruction 6. lined in defendant’s 7, past cluded in items and disablement impairment in- and earning power in- are contends 3,1, S, er- cluded future damages) items and disable- (measure struction power defendant, impairment ment and because, earning it author- are says roneous doublе, 1, 3, S, triple, and past included in items and and recovery of ized the in- loss damage earnings is included items S and Plaintiff’s quadruple damages. 8; double, recovery thus authorizing instructs “The court struction was: triple, quadruple damages in favor and the items jury you the issues if find defendant Plaintiff concedes future against mentioned. plaintiff herein, pain suffering instructions were twice mentioned in other submitted duty among your might to assess dam- the items that be taken into then becomes it account, in- in whatever but contends such ages the defendant against nothing nonprej- more find and believe advertence was than you may amount reasonably repetition. udicial properly and evidence would all compensate the carefully We have examined a direct result of the injuries received foregoing instruction. We should observe fall evidence. mentioned that we do not commend the use of detailed any, you damages, if “In at the arriving complicatеd damage instructions in the account may consideration take into personal That, injury usual case. because nature, character and following: usually it happens that items listed any, injuries, received extent of the may which take is told into ac misery pain, suffering and plaintiff; count are overlapping. somewhat It would and which has endured appear many practice be better leave may from the evidence and believe find of the suggested argument items for in the future to en- reasonably certain he is rather in damage than to include them a in injuries; of such dure direct result as a struction. in damage The use of shorter disability impairment physical *8 questions structions would obviate such as the may and believe from you which find by here raised defendant. may has and plaintiff suffered evidence that here, however, reasonably to is' be certain suffer injuries; whether the in given result of said instruction the form as a direct future medical, doctors, nursing, prejudicially erroneous. are hospital, We such charges primary view it was not. The X-ray services and reason bills and other evidence, may para for that the which find conclusion is that first in as shown evidence, clearly jury graph tells the was reason- it is to and believe from the injuries, assess the damages against the if in ably required to treat said defendant may impairment all whatever amount it find any, plaintiff; any and and believe work, ability from the will labor evidence cmd rea power properly and earning sonably compensate earn, any, all the and actual loss of and injuries you may as and and all received as a earnings find direct re wages and casualty. The items evidence the has sult of which the fol believe jury may low are which injuries; result of matters the as a direct said suffered con-
769 correctly Murphy instant case from in damages the one assessing the sider The de- pointing does paragraph. out that instant instruction in the first directed para- not specifically second include an authorization considerations tailed un- permanent injuries. not be But consider distinct graph of instruction damages derstood, view, separate the instant instruction does in our as authorize damages jury nature, character, to consider the and in addition to be allowed They injuries paragraph. physical extent of by the first dis- assessed fie addi- not damage, impairment ablement allowable are within the Mo., Thompson, may Warning reasonably it. v. suffered and be cer- tions to A.L.R.2d tain [11], 335, suffer the future. must We S.W.2d concede, therefore, case, Murphy 1176. supra, give support does some to defend- in- form of An instruction present ant’s However, contention. we are from one distinguished stant one should be agree unable the conclusion in the in Alex- similar considered like or to that Murphy case, only because of mat- Co., City ander v. Kansas Public Service mentioned, ter heretofore but also because 451, There Mo.App., 268 S.W.2d [4]. if, held, is, permanent we injury as plain- jury allow an instruction told the loss, pecuniary aside separate ele- compensate fairly tiff a sum that would ment damages, Thompson, Meierotto v. injuries and that him he sustained 32, 356 Mo. 201 S.W.2d then it seems sum jury might further allow such impairment capacity, clear that of earning fairly compensate aggrava- him for past future, necessarily is not included pre-existing physical tion of a condition. in, from, nor it necessarily does result an instruction allowance of Such directs the permanent injury. damages aggravation of a double because be, pre-existing included injury necessarily There under may certain construc- injuries plaintiff, language within sustained tions instant instruction separate and it dam- overlapping directs assessment of some items which the Likewise, in- ages aggravation. jury instant was authorized to consider and take distinguished assessing but, struction should be from that into damages account type it, items, except of instruction which of those directs view each one noted, damages presents to assess for each separate listed item. a distinct problem, facet of the total and a consider- Murphy Defendant relies St. on Louis reasonably go ation of each would into Co., Public Service 362 Mo. proper compensation. determination of As 31, 35, 36, court, 244 S.W.2d in which the noted, plaintiff concedes that the instruction considering there, damage instruction pain suffering. future twice mentioned apparently did not take into account that it (There is no attack the instruction be- which, instruction, was one like instant “reasonably cause of the use the words correctly damages stated the measure of probable” second submission of permitted then to take pain suffering future rather than the into account things determining certain “reasonably certain.”) words Plaintiff cor- the amount of damages to be assessed un- *9 rectly says the fact pain that that future direction paragraph. der the of the first repeated suffering and had been would be erroneous, Murphy instruction was held obvious a We cannot jury. believe that reasons, one of two stated because it sub- repetition because of the a would compensation double mitted “in that it damages pain for award double future and impairment allowed awards for of earn- suffering. ing capacity injuries permanent and for separate elements of damage.” 244 contends that S.W.2d the trial court [9], overruling first might challenges At blush it seem suf- erred in its for cause distinguish ficient to in Again the instruction two of veniremen. it is essential to Apparently judgment from a ruling in hit behind. a of that understanding clear our court, had been in but respect record. rendered the circuit of the to set forth some question there was its collection in some about Gregg, On answer voir dire venireman car because of insurance questions ever suf- the failure he had as to whether back, injuries rier. He had sustained to his condition painful disabling any fered or neck, had and After some discussion back, his he had shoulder. lower that disclosed venireman, operated a the matter with the counsel had been crushed disc which trial; question: this year prior that defendant asked “Wheth about a to the instant not, injury it; your' er you re- had an disability he that he still had neck, you would have influence on compen- any that covered under workmen’s therefor deciding question in how much Mr. a through sation settlement made month a * * * prior would Not the fact Moss be entitled to? to instant He that trial. said * * * slightest. You mean that preju- that not had made a claim would he * * * you would not influence all? dice further at against him the defendant. On * * * No, “Now, you sir. fact that Would the examination defendant’s counsel: * * * ran question had a fellow on had suit this question this seсond about the * * * your into the back there damages injury, that car would this fact any question you you wasn’t in that a case who had had fractured disk influence * * * * * * any way question? I blame have any on would that that * * * * * * No, But, you? on It influence don’t believe it Mr. sir. would. * * * you say you compare you is too think that Gregg, dissimilar. wouldn’t question your injury on neck injury things let this like that and you you you coming it a on would make the same decision influence decision * ** you injured I would never had matter? don’t believe so.” had * * * your On neck of * * I so. further examination own? believe coun- * sel, apparently had been also You don’t think it would disclosed * * * No, anything to Gregg had made a claim un- do with it? sir.” venireman injury der personal policy brought insurance Counsel further out that a accident (apparently in venireman face had resulted in connection with the same Lord’s compensated injury). back stated visible scar which had been Gregg Mr. compensation, policy prejudice claim undеr workmen’s and the accident against him He further venireman stated that understood that defendant. dis- years ago similarity closed that or 15 was no like there between case injury back “and another did draw some” respect the instant one [compensation of who was at fault and a claim under ?]. compensation. workmen’s On voir dire venireman Lord said that questions any In answer to as to whether he had cut his sustained a face family immediate member of had had testify consulted the doctor who was to damages, venireman claims Lord dis- defendant the instant trial. That years ago him closed that his wife some doctor had rated under workmen’s streetcar; riding a compensation injured while that she and had testified before the Commission; against the front of Kansas was thrown the seat he had received teeth; her adequate had knocked all nothing settlement and out front experience prejudice him probably a suit had been for or filed and Then, questions question. these against the Mr. answers: doctor Lord settled. you he was at fact had had that also disclosed that the time of “Would your family pending influence instant trial dam claim *10 * * * * * * casualty No, sir. age growing out of case? You suit a occur this you it influence either on 1954 due don’t think would ring November automobile question question fault or on the in which accident Lord’s automobile was . against No, On further exam- damages? sir.” By ques defendant further counsel, following: tions, by plaintiff’s ination the venireman thought he not would Lord, Dabbs be “Now, prejudiced Mr. question beyond Mr. a fair and reasonable doubt; injuries that you about these asked that he anything not but could be fair; ask suits, he didn’t these law feeling respects received that his in the you, against prejudice you noted that wouldn’t would swayed not cause him to be * * * No, way his sir.” one defendant? or another in particular case. Lord venireman challenged In v. Louis Theobald St. Transit on while ground cause Co., 191 Mo. juror 90 S.W. juror preju- had said he would not in question had said that he had a sort of by diced or the occurrences influenced prejudice against the defendant but that honestly might he mentioned and he did not think it influence his would think, nevertheless, so the venireman verdict but prejudice that one a having judge qualifications not the own probably unconsciously be biased. humanly impossible it would be pointed That case duty out it is the one experiences to have had those without of the judi trial court to exercise a wise being substantially prejudiced. Defend- cial discretion and come to a conclusion ant challenged Gregg venireman upon by juror the facts stated a rather ground Gregg that the had fact that permit than to juror to decide whether crushed disc and that instant he could divest himself of an admitted claiming injury unquestion- back prejudice. ably Gregg influence Mr. damages. measure of The trial Co., In Railways Carroll v. United court challenges. оverruled both Mo.App. 247, in- S.W. cited record shows that two defendant exercised defendant, stant prospective juror ad- three peremptory challenges its in elim- prejudice against mitted former a defend- inating Gregg Messrs. ant but said that he none at Lord. particular time. The court said qualifications doubt as to the of a venire- In the recent case of Moore Middle man should against be resolved the one Freightways, Inc., Mo., west 266 S.W.2d challenged and held that the examination 578, we held that the trial court is vested was such reasonably that the trial court determining with a “broad discretion in juror’s could not prej- have found that the qualifications of veniremen to sit as dissipated. udice had been jurors rulings and his should not be dis they clearly turbed unless are mani that, recognize We as stressed festly evidence,” against the 266 S.W.2d by defendant, instant a venireman is not 585; irrespective aof unanimous ver judge qualifications of his own (in dict the instant case there was a 9-man that the trial court exercise of its verdict), the right fundamental discretion should resolve substantial doubt by jury right includes a to a qualifications as to against the venireman’s impartial qualified men right and a to a prospective juror. However, is upon based the honest decision deliberations that, equally appel true on review twelve; of all and that “It is court, also funda which, is late unless there some fact venireman say, mental is reasonably itself, the we can in and of qualifications.” judge his own necessarily prejudice, In the showed or unless held Moore case we that the trial prejudice, past court there an admission of is failing abused its discretion in present, to sus or unless there something challenge for cause. The which, tain venireman demeanor of the venireman Moore, however, words, prejudice despite admitted his actual discloses the ex *11 fact, Sperry that he did account we should not handle the prejudice in istence of last from until an abuse accident in 1952 court of time not convict the trial that, injuries; for half challenge of 1954 due to his overruling discretion accurately purposes, case, present enough venireman both cause. In the' instant thereby experiences gross earnings he of about would lost said that none of their $15,000. We returns His income tax prejudice against the defendant. them 1950-1954, inclusive, years matters showed reasonably cannot hold materially expense which his or nature business were the kind disclosed De- preju greater necessity' handling when both accounts. resulted must of have gross defendant, points adding we cannot lost fendant out that against dice 1952, Sperry years matters income from pass upon such on this record 1954, income, 1953, increases venireman. net particular the demeanor of a trial amount of income tax Consequently, must hold we years question. over paid discretion have court not abuse its did Hie Consequently, plaintiff’s actual loss was cause. See ruling challenges for $9,739.22 $15,000. approximately Thompson, Mo.App., 252 S.W.2d rather than ber v. calculations, however, Our show that [8, 9] [10]. approximately actual loss amount to is ex- judgment contends the $10,000 men- purposes the last and for our as- The court overruled cessive. trial figure sufficiently accurate. tioned plaintiff’s motion signment to effect The estimated that but for also evi- trial and thus view for new injuries an ad- earned would have standpoint most favorable dence $6,000 per year Heller gross ditional from ruling. Prior support the trial court’s it, period, during the as we understand plain- detailing nature and extent prior years following the time (2½ important injuries, physical it is tiff’s op- full accident) he resumed sales determine preliminarily this case respect erations. shows The record special earn- damages (loss of amount following: medical, expenses) likе hospital, ings, reasonably plaintiff sus- could find “Now, you judgment do tained. your in- knowledge of the estimate from dustry it was manner in which occurred March The accident you flourishing would have whether or not May 9, 1955. began and instant remaining from Heller in the made more time and Plaintiff was 62 at accident ’52 in ’54 six and in ’53 and months years been for 30 He had at trial time. Oh, you A. def- hadn’t been disabled? Company, for Heller & a salesman for initely. pearls whom sold imitation cultured stores in midwestern cities. to retail your “Q. judgment And from “highly personalized” selling involved knowledge industry how much do cus- cultivation of requiring continuous per you year? A. estimate to be periods long of time. From tomers over Per year? in 1952 of the accident until the time $6,000. “Q. Yes. A. Around also merchandise for The sold which, understand, Sperry Company as we year. year? Per “Q. Per A. costly type line of the same a less and a line which most Heller merchandise “Q. Do consider that a minimum handled. The evidence showed salesmen еstimate ? A. Minimum estimate. gross plaintiff had received annual Yes, estimate? years prior “Q. Conservative A. Sperry in the two income $6,000; sir, estimate. approximately conservative his accident of *12 speculative conjectural nature of it. implication behind that that or “Q. Is the Mo., Co., Metropolitan Ganz v. R. on the business See St. in business from ’52 this nationally? [1, (and I 220 S.W. cases there A. upgrade 2] cited). Eyermann Fishang In Con- explain can that you. to Co., tracting 333 Mo. S.W.2d implication Yes, “Q. but that is held, respect question it was with Yes, it? A. sir. behind quantum necessary proof to es- of tablish fact that earnings, lost that explain, and “Q. may you to He ask plaintiff’s kept pre- books “were not with Yes, (Our I don’t care to. sir.” A. cision and the details of his did not show italics.)
business or from which net the items Did the of loss of antic estimate deprive earnings computed were did not ipated gross con earnings Heller from him of right recover for loss to testimony ($15,000 in foregoing tained such earnings if loss suсh could be shown which, by calculation, would mathematical certainty, with notwithstanding reasonable loss, to additional amount an actual vagueness of the books.” 63 S.W.2d $10,000 tax is about figured, income There, however, 36. as in all the cases 3-year for the period) substan constitute examined, we have there was some basis tial could find evidence from which for the past loss of earnings, estimate of earnings loss of amount? We in that just unsupported statement as plaintiff think not. The burden was on imply instant do not case. We prove past earnings loss of some plaintiff personal injury in a action e., prove certainty reasonable the must earnings show with exactness the —i. fact amount at least of loss lost, which he claims to’ have but we do best evidence shows available. record hold that there must evidence some offered to state a basis for which jury may esti- find his estimate and that was refused offer approximately matе was correct. importance counsel. The of that plaintiff’s doctor, It is conceded that that failure of plaintiff to a basis state X-ray, necessary nursing, hospital, and estimate, for his indicating after that there transportation $3,241.13. bills totaled Con- it, was a basis for amounted to a failure sequently, question determining to adduce might available evidence which excessiveness, appear it would have substantiated the estimated loss. plain- favorably evidence viewed most Furthermore, plaintiff’s income tax returns special finding tiff would sustain a show gross the total income from damages approximately to trial time Heller in years re 2½ $13,250. mained about the same more or than the gross years Immediately income from Heller the two after the fall prior injury. conveyed City hospital Thus it becomes clear to Kansas where some stayed for reasonable basis he His most seri- six weeks. estimate imperative. injury, appеar Under the cir ous as will from the med- cumstances, testimony, hip. broken right are constrained hold ical was a unexplained, that the uncorroborated, hospital he suffered contin- and While earnings pain undemonstrated loss hip, from Hel the small of his uous back, ler did not probative Upon and in discharge constitute substantial his neck. evidence from reasonably hospital which a returned to his home might find gross New there earnings lost York and was confined to $6,000 from Heller per year; at Thereafter bed four weeks. rate that, though plaintiff’s get even Sep- able about crutches until estimate came objection into evidence returned without tember to work attempt prior September without to demonstrate the some time '774 *13 go was day, appeared obtained as on unable
hour or two a but was hospital. September City .discharge from Kansas back until the “on the road” time, a he, cane. used when a orthopedist City ex- Kansas Plaintiffs back, con- pain hip, and neck in The his injury and yеar amined him a the after of tinued, use the began and after he well; hip progressed found that the his stiff and crutches his left arm became first plaintiff that for the complaining was of painful, limitation left shoulder with shoulder; and pain time of in his left under He was motion his left arm. of complain pain in that he of continued to York in of doctors New care of his examination back and neck. On hip injury his the disabilities both and shoulder, limi- marked left there was back, neck, Plain- shoulder. his and left 55° of tation on rotation and abduction years (3 time tiff testified that at upper and arm disclosed the left ½- walk fall) he after the was unable atrophy. inch was tenderness There time, eight of or blocks at excess ten of and limitation small the back of numb,” a “little right leg that becomes directions. movement in area all that stop again, he has to and start that often right good of There was movement leg right pain in his that there is terrific hip except slight limitation on joint going in alighting from an automobile or hip. thigh at the inward rotation of put up he needs and down stairs operation at There tenderness was unable right leg, is weight on the that he protruding nail and site due to the pain, sleep right of on his side because atrophy. right thigh showed a ½-inch person he used that he is not the same examined The next saw and same doctor fast, get be he around because cannot which time in October at back, in his pain continues lower that dull pain was plaintiff complained which of improved but there his neck has that right leg of the associated with weakness pain pressure. He further said still increased walking. after use in There was prior injury been to his he had that and pain in the left shoulder and stiffness illnesses, ac- good previous no with health to raise his arm. unable cidents, he hospitalizations, and that diagnosed as left condition was shoulder such participant sports was an active by the chronic which was causеd bursitis badminton, table swimming, and golf, hip. The right necessary of the treatment did not time of trial he tennis. At the unchanged. The same back condition walking and a cane him in need to assist and plaintiff in saw October doctor limp. he did not hip right continued found that complained improve although plaintiff still testimony tended to Plaintiffs medical pain right and of his' of weakness pre- aggravated the fall had show that way.” He continued to “giving knee existing cervi- arthritic conditions in the pain in back complain the low n caland dorsal spine regions of his and, his left shoulder while neck painful regions to with caused those painful. better, it stiff and was still disability; that sustained some resultant n through neck irregular fracture immediately prior X-rays taken right up- limb with early aseptic of the femur ne- localized trial showed shaft, femur bone displacement due to the (destruction ward crosis condition; painful disabling supply) right blood femur. most lack of result it was neces- the necrotic cоn- to obtain the desired The evidence X-rays pro- hip apparent was a operate on the use metal sary to dition ' n (aSmith-Peterson supporting nail and a result traumatic gressive one motion, causing metab-screw) alignment pain, maintain the limitation -to arthritis bone; good hip, immobility; -that a result of the involved stiffness of the
.775 removed; spent metal should their doing. 'lifetimes In other worse; words, hip grow progressively give weight must to the fact crutches, resume use of impairment should of instant X-rays every period six for a future months earning capacity,'will'nót résult years; progres- to four if the one the ..comparatively, financial serious ..future ,fhe sion necrotic condition as is condition often case .where *14 .resulted, hip permanent then would “break been arrested the disability has to one other, (a medical engaged spme down” result in the realm of in railroading type or probability plaintiff’s case) requiring of work high .requiring degree a man- o.f operation replace the head ual exertion. bone-grafting a cup femur with a metal
operation joint, fuse the permanently have, course, We of read the cost operations either of which cases citfed' parties tending' tó es’- about $850. tablish respective positions their as to ex- cessiveness. have' We examined other hip condi- prognosis As It is comply cases. most difficult to tion, appearance o.f was said n therule of uniformity of judgments sig- danger necrotic condition was comparing plaintiff’s this situation with nal; patient to be observed even physical injuries where Others special so that period for an indefinite may be substantially said to be similar. preserve treatment could be instituted to That is because divergence of the wide possible; and that a hip as long in the other parties circumstances of the was indi- progression” slow “downward and the divergence wide in the amount opin- medical cated. «There also the of actual loss' at trial shown time. Tak of arthritic aggravation ion that the the' ing into account the nature and extent per- are condition the neck and back plaintiff’s injuries, age, his the fact that pain regions will manent in those monetary had a loss at time intensity varying degrees remain with' which., reasonably the jury could have plaintiff’s throughout life. found $13,250, considering amounted to hip injury and is seri- Plaintiff’s prognosis plaintiff’s unfavorable as to ous,' hip prognosis while for his hip, and the other' factors so often re troublé, future bodes and while peated account, take we do into testimony impairment past of his earn- opinion are of the the judgment years ing capacity during the 2]4 this case is excessive amount of capacity was not at full operating $12,500. cases, others, among These have find, jury reasonably spec- could without helpful been reaching to us in the fore evidеnce, beyond scope ulation going Gulf, conclusion: v. Cruce M. & earning capacity, impairment of future still Co., R. O. Mo. the fact remains that income 682; S.W.2d Howard v. Mis during show that even tax returns Co., Mo., souri Pacific R. 295 S.W.2d pretrial plaintiff’s greatest disabil- time of 68; Holste, Mo., Glowacki S.W. averaged ity gross income more than 2d 135. appear $23,000 year. It would that that significance plaintiff will, must have when we at- It if’ fact follows that within compare days, instant fifteen tempt enter here remittitur in the judgments $12,500, judgment judgment $37,500 'with those others sum - recovered cases wherein the will be evi- affirmed as the date of the (cid:127)entry item original judgment that the main of dam- dence showed with ini justifying judgments age those was the terest thereon from that date. Otherwise plaintiffs those were permanently fact that the case is reversed and remanded for a l a only from doing thing they new disabled tri . CC., HOLMAN, VAN OSDOL
concur.
PER CURIAM. Di- remanded to having been This cause Banc, per en Court
vision One ad- file, it is ordered
stipulation on stipulation, that with said
judged, in accord $37,500, be affirmed judgment herein
as of this date. DALTON, J., who except
All concur *15 opinion filed. in memorandum
dissents
DALTON, Judge. that, ground on
I dissent abused presented, the court
record failing to sustain discretion
its
challenges for cause as to veniremen Gregg.
Lord and ELMORE, L. Plaintiff-
Frederick Respondent, RAILROAD COM
MISSOURI PACIFIC Corporation, PANY, a Defendant- Appellant.
No. 45420. Missouri,
Supreme Court of
Division No. 1.
April 1957. Rehearing or to Transfer
Motion May 13, Denied 1957. en Banc Court