*1 Respondent, SCHEARS, Wendell John RAILROAD PACIFIC
MISSOURI COMPANY, corporation, Appellant.
No. 48347. Missouri,
Supreme Court Banc.
En 20, 1962.
March
fore, opinion per the following the hereby opinion curiam Division are Two adopted opinion en as the of the Court Banc.
All concur. STOCKARD, Commissioner. Dabbs, Beeson, Paul
Richard H. David P. Kendrick, Vardeman, Jr., Robert H. E. Company The Railroad Missouri Pacific City, appellant. for Kansas the appealed judgment from a $65,000 (reduced by remittitur amount of Bauer, Hardy, Donald David R. Lane D. the in the trial court verdict from the Williams, Hoel, City, Kansas Preston K. S. respondent’s action $85,000) amount Norton, City, North Kansas Harrison Wm. Act, Employers’ Liability under the Federal Shook, respondent Sebree, Hardy & for seq., personal in- U.S.C.A. 51 et § Norton, City, & Ottman, Kansas Williams juries. City, of North Kansas counsel. Appellant not contend that a sub- does A jury missible case was not made. could PER CURIAM. reasonably find from the evi- 13, 1961, Division Two of On November Respondent following dence the facts. was adopted in this case this Court employed helper-oiler” as a “carman at whereby judgment the trial court the appellant’s what is known as “second train plaintiff-respondent favor was yard” City, at Missouri. He and Kansas and the cause versed remanded. employees engaged in roll- two other were ing 55-gallon (weighing a barrel of oil Plaintiff-respondent filed a motion for up ladder-type pounds) skid onto a rail- or, alternative, rehearing for trans- road section car or what referred to was the Court en fer to Banc. Respondent push car. was at one per opinion, In a curiam the motion for barrel, employee end another rehearing or transfer en Banc Court end, employee' and the third the other Court, however, was overruled. The trans- had leaked was at the middle. Oil case to the Court en ferred the Banc on the place barrels in the area and at the where own motion. case set for Court’s being ground done the work was hearing before the Court en Banc on Wed- oily the barrel was be- and slick. When 2,May nesday, respondent’s ing up rolled the skid foot oily ground slipped on and he was 9, 1962, March On position, a “twisted” the barrel thrown into Company joint Railroad filed defendant skid, his side of the over onto came remand the case to the motion to Circuit position gave in the “twisted” while County, Missouri. It Court' Jackson push” straighten “heave” or “hard parties motion that had stated hernia of his dia- barrel and sustained a compromise upon a agreed settlement. phragm parties was further stated believed necessary adopt Court en Banc Appellant contends that the trial court divisional or retransfer hearsay testimony of admitting “erred in disposition. to Division Two Duncan, of plaintiff’s witness, Dr. William by plaintiff consideration, history given him and of due After the Court en treatment,” plaintiff’s past symptoms and Banc is of that the divisional permitting per well as that it “further erred curiam should opinion plain- adopted by testify Court en Duncan to Banc. There- into- twenty per stomach hernia cent tiff suffered a traumatic cavity. dismissed opinion was based his chest because said *3 Mary’s May of again plaintiff.” admitted to on said statements of St. his giv- from repeated hemorrhage We occurrence 1957 with set out the entire shall at that revealed contentions, X-ray intestinal tract. The ing rise to these but we shall . present. There time that hernia specifically only rule on the first. was with stomach thickening was some treating not a Dr. William was Duncan He was admitted no evidence of ulcer. respondent doctor but on March examined Hospital where the to Missouri Pacific years half after 1960 three and one repaired diaphragm hernia his was on giving occurrence of the incident rise an un- July apparently made 1957. He giv- purpose the cause of action for pro- recovery surgical eventful from the ing testimony at the trial. After St. again cedure. He was admitted qualification as an he asked was Mary’s Hospital on December part on direct “any whether examination made a duo- diagnosis where a was then your part, examination, whole or ulcer hemorrhage denal with from the ulcer dependent history spasm [was] and There was of the stomach. patient” He replied and he that was. bloody blood, weakness, nausea, vomiting of his- was then asked “give dis- fainting spells. He was stools and tory a given you that was which formed Hospi- Mary’s missed and readmitted to St. your diagnosis.” Appel- for basis occasions, subsequent tal for one two objected lant ground to the hemorrhaging and from influenza one for hearsay, that constituted after and stools, and bloody with weakness ulcer counsel, discussion between and the court subsequent anemia. He had an interval record, some of which was the court off May 27, sprained he history ’59 when ruled objection that he would “sustain the back, apparent with connection with no how the accident occurred.” Counsel The stat- bleeding.” his abdominal doctor respondent explained then to the doctor history ob- ed that some of the above any he “should give history tained was ob- from some occurred, may how the you accident hospital tained from the records. give history you upon, acted other by respond- than that.” The doctor then asked The doctor stated spondent “any past “gave ent’s counsel to relate health his- history injury you tory given you got or that stomach and his chest” which occurred hospital Appellant August from the records.” “re- respond- 1956. Counsel for ahead, “original ent said: and was go objection” “Now You newed” its Doctor. with felt The doctor then testified: start how after the acci- overruled. he dent, any patient past history “The irrel- given that was that.” of this except previous then evant that he The doctor testified as “He had his- follows: tory indigestion twisting, straining injury gas described a he had years prior present to the chest his abdomen. He states some injury. after shortly became He however that he would this he sick states go long years for as as one and half stomach, very weak, he became cold any pain or discomfort. He states without clammy pain and rather severe in the pain he that when did and discom- have lower chest on side upper the left and the abdominal due and strain of busi- persist- area. discomfort fort it was to stress days ed and several he at the time of later was admitted ness worries. states Mary’s Hospital having no present injury St. he was abdom- bleeding tract, pain the intestinal and was gastrointestinal lower chest inal or discomforts upper year and left abdomen. free for to the symptom He had one blood X-ray injury. that even while present transfusions. The He states that he revealed he yards hiatus “a result of his railroad hernia was working at the heavy doing 1956.” farm, thirty-acre he was had a farm chores without discomfort.” as to Dr. Duncan com-
The doctor then testified what told him time of plaints past made at the past physical history and conditions hearsay, the examination and of which and the treatment received was subse- complain. does not The doctor appellant’s objection was time thereto *4 diagnosis quently testified ly that he made adequate. Many Hollo and cases based respondent’s of condition, which was way City, 19, v. 184 Kansas Mo. 82 S.W. 89, the statements made to Hunter v. Southwestern St. Louis him, as “(H)e had a traumatic Railway follows: Company, Mo.Sup., 315 S.W.2d n * * 689, hernia hiatus incurred rule, establish the which we believe to * ** 24, repair subsequent 1956 with be best stated Terminal R. R. in Holmes v. secondary com- of hernia followed Louis, Ass’n 1178, of St. 363 Mo. S.W. 257 * * plications of an active ulcer 922, duodenal 2d 926, physician, as follows: “A * ** associated and a gastritis with stating patient’s his on a duodenitis, which is inflammation condition, also an may testify person to what he upper portion of the bowel. ally of the small patient observed and also to what episodes He gastrointesti- has recurrent (an of said exception rule) to the hearsay bleeding nal symptoms pain, with nausea of present, symptoms existing left and complaints. left chest and and discomfort However, may not base inguinal upper abdomen. He has bilateral or testify to statements of patient hernias which could be the result respect past with physical be present eventually conditions, and should circumstances surrounding the nerv- surgically. also infury, corrected or the manner which the injury [He has] severe, apprehensiveness, quite ousness, (Italics received.” Cited in added.) * * * her- secondary support to the traumatic of this statement are Evans v. pleura, thickening Co., nia. He had of the Missouri R. Pac. 342 116 Mo. S. lining chest, the left which is the 8; Ass’n, Terminal 336 W.2d Corbett v. R. apparent side the chest' and adhesions 97, 102; Nagel v. 972, 82 Mo. S.W.2d pericardium lining heart of the or of the Thompson, Mo.App. 1061, 170 S.W.2d 237 top part also sec- diaphragm, to the of the 416; Zarisky Kansas Public Serv v. ondary original diagnosis.” 854; Mo.App. Co., 396, 186 ice 239 S.W.2d my further doctor testified that “It was Century Co., Electric Mo. and Phares v. complaints that [respondent] also, App., Magill 131 879. See v. S.W.2d entirely keeping nature of were with the Bank, 232 Boatmen’s 288 Mo. S.W. injuries subsequent sustained and course 448; Kroger Grocery Baking & Oesterle v. happened which have events 780; Co., 141 [him] 346 S.W.2d Cruce Mo. injury.” expressed Gulf, & R. since the then 361 Mo. v. Mobile Ohio 674; future would 238 Huffman v. Termi medical treatment S.W.2d respondent and Louis, needed not able nal Railroad Association of St. 863; regular type employment. Sup., to resume his Terminal 281 S.W.2d Jones Louis, Following the Mo.App., above St. 246 testimony, counsel for R. Ass’n of S. R. 356; Campbell Ex to Dr. Duncan a “66” submitted W.2d Garrison v. 22; hypothetical question Mo.App., press, Inc., 297 lengthy in which the asked in the doctor was to assume as true all cited annotations in or cases substantially all of A.L.R. 1527 the facts A.L.R. A.L.R. him conclusion respondent, along many lated can reach no but that We evidence, facts, over the other and in answer the doc- time thereto the admission into appellant, opinion respondent’s objection of that ly tor stated recited Duncan in which he admissible Dr. him con testimony.” He what had told to Dr.-Duncan’s physical then past asserts cerning past history certainly could “defendant error. prejudiced constituted have conditions and treatment been Duncan’s of whether statement question portion of this only leaves given by plaintiff him say we can was not this error as an aid to Dr. Dun- can’s appellant. understanding of the case and
evaluating plaintiff’s present complaints.” We do agree so lim- through Appellant position took the ited its contention Appellant’s error. out described the trial that accident point referred occur, presented entire incident. When did not point issue, present "rea is sufficient to could evidence from that fact which as it is in appellate this took sonably also court will have been inferred. read the hernia, transcript pertain- evidence in position hiatus that the ing to the *5 trau entire incident whether not admittedly had, not of or was that evidence is his all set out verbatim the Therefore, previous origin. matic argument portion appellant’s hearsay tory statements brief. in the form of the However, result we reach Duncan had a recited to the jury Dr. the prejudicial prin hearsay effect of the testi- bearing
direct
on the essential
mony does not turn
case, particularly when
on the issue of whether
cipal
in the
issue
plaintiff had
hearsay testimony
previously
not
Duncan
or had
testi-
started
Dr.
fied to the
history
previous
same
physical
by stating
respondent “gave a
condi-
tions and
oc
and chest”
treatment.
to
stomach
1956,
re
curring
24,
the date
on
Respondent cites and
primarily
relies
on
occurred, and
spondent
accident
claimed the
three cases. The first is
Kroger
Oesterle v.
twisting,
“described a
Grocery &
Co., supra
Baking
[346
his abdo
straining injury
chest
to his
S.W.2d
There the examin-
782].
men,”
subsequent
inci
and then recited
ing doctor testified concerning
condi-
directly relating
and conditions all
dents
tions he found at the time of the examina-
stemming from said occurrence.
back to or
tion, but in the preliminary interrogation he
incompe
uniformly
It has
been held
stated that “for a
diagnosis
correct
is
pre
on a material
issue
tent evidence
is
necessary to have
history
patient
of the
prejudicial, Holmes v. Termi
sumed to be
—a
history
‘short
past
of his
as
ill-
life
to
Louis, supra
p.
nal
R. Ass’n
St.
R.
”
nesses and
opinion
accidents.’
The
then
otherwise,
clearly
unless
shown
points out that “He
did not
[the
doctor]
Zarisky
Public
Service
Kansas
repeat the history he received nor is it ar-
Mo.App.
and the
gued or inferred that such history
inwas
respondent.
showing
of so
is on the
burden
respect other than that
any
included in the
Railway Express Co., Mo.App.,
Casto v.
hypothetical question,” which
based on
otherwise evidence.” There an examin- physician arriving opinion. at his physician plaintiff ing testified that com- plained pain to him of left shoulder Whatever be the effect of these and over left shoulder blade and cases, aggravated under the circumstances shoulder, some in the left if stiffness case, the admission this to whether plaintiff turned head side into of the Duncan evidence aggravation pain he had some prejudicial, they do is not hold it shoulder, complained and that he of con- prejudicial examining error an weakening pain part in the lower stant physician jury, timely recite to the over back,, reported at times acute. The adequate objection, hearsay state- not reveal whether or not does past plaintiff concerning his- ments of the objection was an to this there tory past physical conditions treat- given on it was the basis that time ment. hearsay past consisted of statements as to complaint physical conditions. The on the previously pointed We out that physician appeal per- was that “was hearsay recited events Dr. Duncan had bearing principal mitted to base his expert as an direct on the issue 320 highly con rect
the case and that issue sense this It corrob this is true. Gough the situation shown orative. Co., We do not have v. General Box tested. Sup., 892; Com Pope Hayes Public St. Service S.W.2d Kan v. Louis v. sas 123, 126, City pany, Mo.Sup., Ry. Co., where Southern Mo.Sup., 341 S.W.2d 491; by a as to what S.W.2d 32 C.J.S., statement doctor Evidence 1016. § of the The incompetent testimony, said was the cause admission of be even injury though be was held not to it be the same effect as competent cause had been “the cause otherwise in the seriously frequently testified to in detail and was not resulted in the reversal of during judgment ground the trial.” preju controverted that was Nickle, pointed Wilson, out in 8th Mo.Sup., United States v. dicial. See Kitchen v. Cir., 38; 372,,374, may fairly Gough F.2d that it v. Box General supra; goes City, assumed that one who ill and Stratton v. of Kansas physician truthfully Missouri, Mo.Sup., 927; for treatment will 337 S.W.2d necessary state such facts and de Wallendorf Rensing, Mo.Sup., v. 329 S.W. 2d physician prescribe sirable for the
him, but that there is no such inducement As a general expert rule an goes physician pur when one to a for the permitted reasons, will be state the if pose testify qualifying him in a competent, upon opin otherwise which his purpose lawsuit. then is not to enable premised. ion is But when those reasons qualify the doctor to effect a cure but to hearsay, are based in as far as the Thus, him as a favorable witness. the valid concerned, accepted prop witness is and wholesome reason for the rule an way present er evidence nounced the Holmes and the others present witness is to quite cited becomes In evident. proper evidence of those facts from some Chicago Ry. Garwood, & 8th N. W. Co. source, and then submit them to the 848, 859, Cir., an examining 167 F.2d doctor *7 hypothetical question witness along permitted objection over to recite to with other relevant gen The above matter. jury plaintiff the the statements of to his as eral rule cannot bring be used as a vehicle to prior physical condition, and the court there jury incompetent testimony, before the or it said: “Since is clear that the doctor did provide improperly the means of recit appellee purpose not examine the for the ing purpose emphasis to the for the of effecting only of a cure of his incompetent testimony corroborative of es qualify witness, as a himself favorable disputed sential and facts or of facts direct testimony the doctor’s to the of ly bearing disputed on essential and is given by appellee the case him was inad sues. This is what was done case. this hearsay. [Citing because of missible cases.] We cannot determine effect er what the The fact the testimony doctor’s re hearsay testimony roneous of Dr. Duncan peated symptoms by referred ap- the may set out have had in the pellee or other witnesses does neces not of the jury’s highly determination con sarily cure the error.” Then quoting principal case, fact issues of tested and this case, Nickle “Any the it said: one say therefore we cannot that under familiar with the trial of cases knows that unlikely the circumstances is it the history of a patient, the by phy testified to testimony prejudicial. sician, frequently is impressive much more history given than the same on the stand respond further contention One of plaintiff himself.” Apparently re argues ent comment. deserves spondent’s position is that recital subsequently Dale Bennett brief that Dr. hearsay the doctor statements was history given “testified the extensive him merely evidence, cumulative objection,” but in without and that cor objection Rehearing therefore waived On Motion for its by Dr. the recital statements not note that does Duncan. We PER CURIAM. objection had made assert that been if In for rehearing motion ruling on have its changed
trial court would contends that the erroneous admission of testimony. In a simi- admission of such hearsay testimony Duncan could of Dr. have said lar situation this court held: “We prejudicial. contention, not have been His seasonably party objected where a substance, opinion is that “the doctor’s of a certain character one to evidence important thing,” is since the and that overruled, objection witness and his is expression by Dr. Duncan of un- expected required not repeat is or his ob- der the circumstances in case was not this jection when char- of the same prejudicial under error the Oes- rule acter another offered.” witness is terle, Huffman (cited and Hunter cases Holmes v. Terminal R. R. of St. Ass’n principal opinion “any supra), objec- Louis, supra, particular- p. tion to expressing the basis therefor” ly when, true this the trial obviously expressly should We not fall. did judge arguments heard of counsel rule that the admission into evidence of the issue of whether was ad- Duncan was not ruling missible and made firm based on under what aggravat- referred to we as the principle involved. ed making circumstances this case. In ignores above contention must Since cause be remanded for a permits basic theory which the admission trial, unnecessary new to decide the nu- an witness and which questions presented, merous other includ- hearsay testimony. excludes ing contention it was error to admit into evidence the Dr. Duncan expressly when based on exception general As an
hearsay testimony.
say
This is not
may
rule that a
express
opin
witness
an
remaining
appel-
ion,
contentions
do so when
are
lant
without merit. Some are based
qualified
subject
as such and when the
mat
wording
instructions,
others
knowledge
ter is
of such common
the failure of evidence
support
sub-
province
invade the
jury.
gen
See
evidence,
mission or on the admission
erally, Stephens
v. Kansas
Gas
*8
on
are based
others
comments made in
835,
601,
Mo.
354
191 S.W.2d
and Christian
opening
the
statement or
argument,
Jeter,
in oral
Mo.Sup.,
v.
All concur. evidence without ed those hypothet August 24, 1956, and that to him in a on “he described being facts submitted twisting, straining injury form a to his chest question, then the error is ical based and question, opinion is abdomen.” It is true that in substance not that the respondent testified, by com so course not' facts are not established on which precise However, in those is petent That the situation words. this evidence. complete story. Appellant Oesterle, Hunter no means the which Huffman and August 1956, respondent denied that on apply. cases is called facts, any injury working sustained and while for as to the evaluate the it, and on an give to cross-examination of to determine what credence it will brought In it that if he facts. out he that opinion based on those knew an injury at work he was followed sustained while this case counsel for supposed report, requesting the file but that he did procedure incorrect any any report, not at file and express opinion based time such expert witness to an that he claim to an he had made no disputed in facts of which injury or until two submitting an accident more personal knowledge than no without But, years alleged occurrence, after question. in hypothetical them in a empha filing was made of this lawsuit. purpose of addition, the obvious explain In no attempting why he made sis, fortify proof of sought to counsel report injury testified by having expert witness certain facts that was in summer before of 1957 jury facts com recite which were he first decided that the incident with pletely hearsay upon which as to him and physical condition, barrel caused his but he possibly subject to cross- he could also testified show the attempting in examination. severity injuries that was Respondent admits in motion happened day the incident he decided hearing “The fact claimed that [he] Respondent the barrel caused condition. an accident have an suffered year also testified that about a resulting symptoms 24,1956, accident, alleged painting before while case,” and was the whole basis of [his] jeep he had become sick nauseated dispute was a further admits there he cramping vomiting. his stomach with at and fact in the evidence “as to the date May again related 1957 and immediately accident, symptoms an and the performing while work not June following.” the situation where employment carrying connected with hearsay testimony was offered erroneous sand, shoveling rocks he suffered prove immaterial or “a fact over fact became nauseated and seizures dispute.” See was no real which there vomiting. symp- cramping and These Andrews, Corley Mo.App., 349 S.W.2d v. substantially are those toms same as 395, 401; Schneider, Mo.App., Gaines v. by respondent described the time 401; Pope St. Louis 323 S.W.2d alleged report accident which he did not *9 Mo.Sup., 341 Company, Public Service co-worker, employer and which to his his But, respondent says, every- S.W.2d barrel, helping to load was the who otherwise thing doctor testified to was the happened. had This co- aware not even either because of his properly in evidence worker, witness, respondent’s also stated records, testimony hospital or personal they had moved the barrels after that hearsay jury recital therefore half mile and un- approximately one had pos- not the doctor could facts of these respondent then them mentioned loaded prejudicial. been sibly have back, he had hurt his thought that Respondent’s or stomach. testi- his chest testified other among things, The doctor that would mony was not such remove principal opinion, that shown as alleged question whether possible “gave injury a all respondent respondent’s whether occurred accident stomach and chest” which occurred from After cause condition resulted that accident. the “evidence was cumulative mere- respondent presented ly,” picture phrase its this with a misleading which we think is qualifications, Dr. inconsistencies because in some improper situations cumula- Duncan called to the tive stand evidence can prejudicial, and be- qualified only as an cause testimony “the prove was offered to outstanding specialists plaintiff as that one of most had myocardial a suffered Then, community. infarction, his field and in the a fact over which there no objection, over dispute.” Dr. Duncan recited to real Corley v. Andrews should jury plaintiff that had he had told him that not be construed to extend the rule of fact twisting, straining suffered a non-prejudicial beyond error application its 24, to his August particular chest and abdomen facts of that case. 1956, immediately resulting with certain
symptoms. Bank, Magill v. Boatmen’s then related various treat- 489, 450, particularly hospitalizations, hearsay ments and far S.W. as appropriate concerned, as the to this case. including doctor was There error was hospitalization assigned admitting testimony resulting “in the incident Fry, incident, detailing plaintiff from Dr. what the rock said she carrying and he cited these such suffered examination of incidents and occurrences in her.” that It was held the “assaulted way a that left no doubt that hearer portion Fry’s testimony Dr. was errone everything wrong resulted ous and constitutes reversible error.” In twisting, straining injury which here, as it was contended hearsay occurred on 1956. The rehearing motion for the error “re story recited Dr. Duncan consisted appellant, sulted in no harm to as the substance of the most favorable facts * * * proven by same facts have been respondent had testified to on ex- direct per other witnesses.” In curiam to that amination, but he made no mention pointed plaintiff’s case it was out that the facts and circumstances testified testimony “was not the same class of evi to on direct and on cross-examination which sought dence to be testimony shown question story. tended cast some on his * * * words, Fry. In of Dr. other Dr. Duncan could not be cross-examined should be classed as concerning facts, correctness those evidence, Fry direct while and this demonstrates the soundness of considered evidence.” It was further rule the admission of pointed out “when counsel introduce attempt testimony. No has been made specialist, standing a noted or one high showing exhaust the of how and in what profession, expected are hearsay testimony manner [at of Dr. specialist least the counsel who offers prejudicial. Duncan was The above is give full witness] sufficient. upon plaintiff’s compensa in passing credit In add, the motion for new trial tion we cause his injury]. [and places substantial on Corley reliance prohibited it is If based matters Andrews, Mo.App., law, timely objections have been made published subsequent introduction, plain to its it becomes the preparation principal opinion. duty court to this reverse and remand doctor, was there held that the fact that If, respond the cause for a new trial.” *10 expert witness, testifying per argues, ent doctor’s is the testify important mitted to as to what thing, told then there is a well-estab events, complaints him proper procedure getting lished symptoms occurring doctor’s before the for its considera particular tion, impressive examination in that could used, said not be to have been be- should hearsay testimony, employment'of improper disputed essential proof bolster the
facts. rehearing and
Respondent’s motions transfer the cause alternative to en banc are overruled.
the court Missouri,
STATE of at the relation Dorothy Bernard W. KASSEN and Kassen, Relators,
v. CARVER, Judge, Eighth Special
Hon. Paul Respondent. Missouri, Judicial Circuit of Missouri, Keith
STATE of at the relation of Mary Jane EARICKSON and Earickson, Relators, Eighth CARVER, Judge, Special
Hon. Paul Missouri, Respondent. Judicial Circuit of
Nos. 23606. Appeals.
Kansas Court of
Missouri.
March