*1 1124 surgical aid. provide medical
calling physician duty a owes to express be at needs not bar in- the case Such contract as issue con- inferred that a reasonably if there facts and circumstances are is met. pay issue tract to the burden -such one of defend- effect that to When we consider evidence hospitalization was employee-that injured the brother told ants defendants, takes the employee- brother, and that needed also disclosed fact the further injured hospital, man when to diagnosis con- herein, after physician, that the employer to ascertain injured goes to the employee dition of the referred is come and is payment for services whence his employer company whom the with employer insurance to the presented supporting indemnity, there are for has contract obligation to pay, defendants herein assumed company employer expected that said the insurance the fact When, law conformity to the alter situation. pay does Co., v. Whitte Hardware opinion in Greenfielder declared in as opinion in Hunicke law as declared App. Mo. and the consideration, take into with Co., 262 we Quarry Mo. surgical furnish medical and service above, duty that the the fact that an such issue fact defendants, we conclude rested issue of was resolved clearly' presented. The above liability sitting jury, by the court and such favor province within our interfere with the case-it does come being finding of fact. assignment errors, under the that defendants’ We conclude law, are not substan- circumstances error, jurgment Finding no All reversible affirmed. tiated. concur.
OCTOBER, 1937. Thompson, Friend, Respondent, Martha Jea Kansas n Next Appellant. City 114 S.W. Company, Public Service 145. City Appeals. January Court of 1938.
Kansas *2 Miniace, Joe Raymond James re- R. <& for Sullivan Hume spondent. Carr, Ess, Charles L. and- Watson, .Qroner, Whittaker Barnett.& n E. appellant. E. Ball for friend, CAMPBELL, The plaintiff, by her next infant, C. brought damages injuries this suit had to recover for She personal judgment verdict ap has $4000. The defendant the sum pealed.
The plaintiff evidence on behalf that defendant shows car; Sep- common passengers carrier of that on for hire street old, tember one-half months then about five and carried in arms of mother on one her board of defendant’s cars; street mother, fare; two, paying usual took after three, steps or four back when toward car started car yiolent forward “with a sudden jerk,” and unusual lurch and she was thrown car floor was thrown injured,.the seat car defendant’s substance severely evidence slowly the street car forward moved in the usual and ordinary manner. says ipsa loquitur
The defendant this is not res case for rea- son the accident could been occasioned have “sole of plaintiff’s mother. and awkwardness” charged general negligence. petition gen- The
The answer was a plaintiff’s is nothing tending eral denial. There evidence show for any negligence The evidence plaintiff’s on the mother. lurch of jerk shows that the sudden and unusual injuries. There plaintiff’s street car and direct eause of was the sole knowing’ is no means of plaintiff’s claim that mother knew or had anything car. Nor is there starting cause the street sudden contended indicating trial defendant record res bring case within pleadings did indicating that loquitur in the record anything rule. Nor there tending to there was the trial contended “negli- show that was caused or contributed the accident gence of plaintiff’s and awkwardness” mother. ipsa .loquitur supreme court en banc the doctrine held shell
applies (a) resulting injury was “when the occurrence care; charge (b) the ordinarily happen does not due if those use management and involved were under the control instrumentalities *3 possesses knowl- defendant; superior of the (c) and the defendant edge occurrence.” or means information as to cause of of the the 542, (2d) v. 329 43 S. W. Koplar, Mo. [McCloskey 557.] Francisco cases v. Other announce the same rule. San [Williams Ry. Co., 624; (2d) City 85 W. Zimmerman v. Public Serv- S. Kansas Company, ice (2d) 41 S. W. 579.] Considering record, appeal the the the will we determine theory governed by loquitur that the rule. case is the matters, instruction, Plaintiff’s main submitting-preliminary after to jury told the allowed if it found the street car was caused or jerk, suddenly and violent lurch start with an unusual aiid street plaintiff- direct thereof was thrown the floor result to you (if ear injured, you “then are instructed that such facts true) them to be are circumstantial believe sufficient negligent, jury may which the defendant was infer find, circum- so and believe from unless other start, any, an unusual if with stances evidence" said sudden due jerk, any, car, was not violent lurch of said street to defendant.” the' many support their claim that the instruc-
Counsel cite 'in cases erroneous, following Ken- rely mainly on cases: tion was but 573, Koplar, v. nedy 33; McCloskey W. Phillips, (2d) v. 319 Mo. 5 S. 527, 557, cited therein. 329 Mo. W. and cas.es instruc- present main is similar to the instruction in the case in- speaking case. In of the latter Kennedy tion condemned “Although jury in- was warranted in said: struction other facts ferring, the instruction and from the facts mentioned employees opened elevator case, one of defendant’s in the already open, discussing we gate it have and left suffi- nevertheless, evidence, province it was not the ciency they liberty’ jury that were ‘at to this tell the draw trial court to
1127 This instruction proven. other from the facts or was' singled out certain on effect. -It commented their argumentative might accepted by the in character. been have jury as case. It was better calculated to decisive mislead the- enlighten jury 'confuse the than to them in their consideration suggesting province jury whole case. It invaded the determining the-question them a reasoning* course of follow S. negligence. Rys. (Mo. Sup.), defendant’s v. United Co. 267 [Finn 746, 420; (Mo. v. Transit 216 S. W. Sup.), Rice Co. 753.] Barada, 491, 498, 499, the early Chouquette v. 28 Mo. Judge party has his said: ‘When á admission secured-the Scott evidence, he it in-' right give importance by no an has to- undue to; they may struction as -to of- it: the use make Counsel- can make their evidence, own on the' and the- will comments weight. or weight' determine their '. law fixes the- Where the court’s-'declaring impropriety the effect of there is no jury; piece when merely but one of-evidence is used’ fact show the the- existence to be another which is found jury, cannot, the' court- by way instruction, direct so, presumes the-jurors inference is warranted. it is If law competent judge. more to draw it than law will allow Our -not judge evidence,’ jury may even 'to comment where give weight they please Gittings what also, to the comment.’ [See, Jeffords, 292 678, 693, 694, 84, 89; Supply Co. Mo. S. W.
Wolfe, 616, 620, v. Haren, 127 Mo. 30 S. W. 148; Primm Considering persuasive Mo. influence of- court’s 211.] jury, manifestly with the average instructions this instruction was: have, highly unfair to defendant and prejudicial his "to *4 ” jury properly instructed and directed on the-law of the-case. ruling
The the Kennedy undoubtedly many case sustains the- of respect contentions of the defendant with to the main instruction the case holding Kennedy weakened,- at bar. The case hacheen not overruled, n if to which latter cases reference will hereinafter- (cid:127) - be made. erroneous-an, McCloskey In the case the court considered and held upon told jury finding facts, instruction which ‘-‘then' certain - the court presumption falling instructs that is over that the. n said defendants, of radiator was some negligence occasioned of agents servants, their or proof and the burden-of is de- upon case presumption negligence pre- fendants rebut this show a ponderance falling evidence that over said was radiator by negligence defendants, caused agents their or servants, unless further evidence falling over prevented by radiator not have said could been defendants, their agents servants, by care, ordinary or use your verdict must -be ” against in favor of defendants. directing what “In instruction, said: discussing In the court flag- it hypothesized, of fact be from the facts must drawn namely, facts, jury. rantly. province invades the of. the From passageway along an aisle or passing therein
‘While in said- heavy radiator balcony theater and there of said said; adjacent radiator passageway, or theater to said aisle defendants, over radiator fell control of possession and ’ thereby, passing injured he upon plaintiff and him as .was negligence. Reasonable minds not draw a conclusion of law- does ¡on negligence defendants might well differ whether as should, could, All that can be said or be inferred from facts. such prop- to-them, law, respect is that with a matter having them, pro- erly be therefore inferred from tending prima case, them establish made evidence duced facie the burden is,: jury. for the a case was made When upon the defendants. going with the forward evidence devolved - did,, not,- -part, their or on But whether defendants did offer evidence what.inference, solely jury it determine prerogative any, -plaintiff’s if intrusion they-would proof, draw-from without ” . part of the Court. on the. inferences say not. The does- instruction under consideration what should, it burden say or be from the must drawn nor. does jury contrary, on was-in proof, was the defendant.- On the that, to-bring told it within effect found sufficient the ease loquitur doctrine,- infer that then it could from- such facts find, negligent, -that it could so defendant:was unless' believed negligent. from other defendant was The instruc- not-single: argüe any comment fact out or tion-does . does, legal however, in evidence. It as to effect advise provided true. it -found evidence to .the the case 332 Mo. 59 S. W. Jones, of Stanton v. 648, 651, approval quotes with from the case of Ward v. Fessler, .plaintiff 252 W. confused S. follows: is “The always what meant as to comment the evidence. is for the court -to tell the what of facts effect in-proof.” “legal The instant what effect of instruction told ’’ proof. the facts Topeka Ry. (Mo.), case Clark v. & Fe Atchison, Santa (2d) 954, requested S. W. the defendant and the court refused an part'as persons follows: “You are instruction in instructed *5 engine charge right believe, of to if they in said had the assume approaching engine track on which the saw said Clark was mov- ing, stop place he before-he reached he where would be would or, danger being they if struck, of sa*wsaid Clark on in said track in right engine, they had the to said assume front of believe that he off, servants safety-; step place would the track and-the and into Clark, nor to in charge engine obliged of said to warn said were either stop speed engine or slacken -the unless and until engineer ordinary or care on his saw, by fireman the exercise of ap- seen,, have was not conscious would said Clark it, proach danger by being of said train struck and was in - get way.” he did not to out of its intend given. held the should been That-rul- instruction have ing defend- expressly approved case, supra. If the in Stanton in that if cer- ant to told Clark case were entitled have the n “ - 'true, engineer assume and tain. evidence had were its logical say track, then it is step believe” Clark would off the plaintiff have the in the instant- case' was entitled to proof.” in told what was “the effect the facts Perry by al., In the Next ease of Friend v. Stein et Appeals judgment the St. affirmed the which was Louis’Court plaintiff. ruling. in favor of review Certiorari was issued to quashing Supreme in-part its writ en as fol Court banc said : lows defendant n “In the trial court Stein Appeals the Court' challenged an : instruction -as follows: ‘‘‘ The you Court .-from instructs if find and believe question evidencé that on the occasion in invitee premises on the evidence; instructs-you mentioned in then the Court that it the due-obligation and duty plaintiff to of defendant ordinary use to-keep premises reasonably care maintain-said safe condition and a defendant ordinary failure of care use negligence responsible-for would constitute and defendant would be - injuries plaintiff, ány,' all negligence, if if resulting; to from such any; you and if further from the evidence that find position danger, you shelving find, if so event the said fall, you and contents thereof said store should and if further find ’ - shelving did; 'fact, that said fall did and- thereof.- contents! - injure injured,- strike and plaintiff, if find she presumes that falling fall, law of said' shelving,- said if did injury plaintiff, any, by to the were some de- caused of- fendant, duty-is'upon.-the bring defendant forward evi- - your dence to show to reasonable satisfaction that the defendant presented:the falling could not shelving have said the exercise ordinary care, and unless the falling that: said shelv- ing precented by could not have been ordinary exercise of care defendant, your verdict must be favor of against the defendant.’ ‘‘ - assignment On consideration giving of error on instruction, Appéals the Court of said: “ testimony ‘The above adduced on cross-examina-
n 1130 specific defendant, show upon by it not,
tion does as is insisted deprive not accident, and does negligence causing act or acts of the ipsa res doctrine on the plaintiff of her to submit her case 3, which loquitur, No. giving of instruction and therefore the . Metro doctrine, not v. error. accordance with that [Price St. 435, 932, W. 132 220 119 S. Am. Railway Mo. politan Co., Street Mo. 277 Railway, etc., Co., 311 Joseph Rep. 588; v. Porter St. ' W. S. 913.] ‘‘ this challenges ruling in conflict with decisions said Relator 59 Company, Public Zichler St. Louis Service court as follows: Co., Telephone 654, 656; Bell (2d) Steffen v. Southwestern S. W. 329 50, 51; McCloskey v. Mo. (2d) 47, Koplar, l. c. 56 S. W. 563; Co., (2d) 557, l. McGrath Transit c. v. St. Louis 7 2 . 8 Mo. 94 S. W. Ap ruling Court argues -Relator that the above of the “. . McCloskey, peals ruling this court in. conflict -with the proof Steffen, question of the burden and Zichler' Cases on is n clear n from ipsa loquitur It res cases.' We think do so. only Appeals that contend of the Court defendant above statement negligence specific tending show acts' of there was ed that evidence authorizing .in erroneous and for that reason instruction was words, the in ipsa loquitur the res rules. In other recovery under proof not:challenged- in violation of burden struction was question. It rule, ruling Appeals thé made on-that Court of no other cases may ruling in the Price -Case and only stated that loquitur, in res by proof cases on the burden of was overruled Ap ruling It that of -the McCloskey Case.- follows Court ex rel. last-named cases.” peals is in conflict with'the [State al., 67 W. Stein v. Becker et S. 755, 756.] will that in the latest case court en-banc court be noted ‘‘ ’’ McCloskey only ruling that case related to the said ipsa loquitur cases. From which it in follows burden' of plaintiff’s that McCloskey does not sustain claim that case at bar was erroneous. main instruction in the case Company, 85 May Department the case of Hartnett Stores .Appeals-approved (2d) 644, Court of an instruc- S. W. the St. Louis as follows: plaintiff reading tion obtained that find and from believe “The instructs n the evidence plaintiff passenger upon an escalator men- was a escalator, plaintiff upon that while tioned in jarred stopped violently jerked, jolted, the same thrown, jerked, jarred, jolted and and that violently action circumstances, was unusual escalator, extra- injured ordinary, thereby, in- negligence defendant, fer some and the was occasioned bringing forward to rebut burden of no there was negligence and establish inference of this some injuries resulted part, its ’’ not have avoided. highest degree of care would which cause more is not present instruction apparent It is quoted in the the instruction than,was favorable to *7 Hartnett ease. instruction instruction followed plaintiff’s
That main Harke ipsa loquitur a case. in suggested proper as a one [See Haase, 335 Mo. 1001.] opin- In suggestion dictum. says was oliter The defendant suggestion is not dictum opinion, ion of the writer of this it is ordinarily used, dictum, but it is in which that sense term is approval suggestion met the good remembered the must be dictum. opinion dissenting with the is in conflict jurists, six eminent case. the result of the jurist eminent who concurred in the other case, dissenting opinion McCloskey in supra.] [See in every hypothesized consideration The instruction under- legal to the effect litigants jury both and advised proper. true. This was of the which it found legal effect jury a tell a say Were we to trial court cannot jury legal say that a “the facts we would effect proof,” then ' 1 ' facts. shall determine law as well as the Or, a res put way, plaintiff proves another when a the matter the de- ipsa loquitur say, may infer jury, case the so all cases neg- infer negligent. jury may from certain fendant was If a that court shall not ligence, principle it be a what can negligence? proof may certain infer jury tell that from such a grope then a the dark con- say, jury If court cannot so must proof. cerning effect was an instruction
In none of the cases relied on considered, except present similar to the instruction in Kennedy other the- instruction case. each cases held ‘‘ finding an be erroneous told on certain negli- .,” presumes the law certain facts . or that arises proof, that the burden of on gence, or burden of nor was in- The not have defendant. instant instruction does firmatives. the verdict was The evidence
The defendant contends excessive. fell, mother thrown plaintiff, when her seat shows thereby eye, the left car sustained an abrasion under nose, The on her fracture of her left place” “skinned femur. “transversely to- longitudinally was broken and then down femur growth An cap” injury and involved center. ward the knee growth up” of the bone. At the time growth center “slows 1936, plaintiff’s deformed, leg left trial, November is, inch one-fourth to three-sixteenths an shorter it was from 1132' and she falls on her toes leg,
than and “she walks her. pain suffered awful lot.” The evidence further shows injury. months about three after for finding warranted From the evidence the leg up,” growth plaintiff’s left “slowed she growth line deformity injury due future suffer marked the measure of properly The instructed the knee. verdict, approved the we do damages. trial court The G., Sperry, judgment is concurs. The affirmed. it excessive. Campbell, C., adopt- foregoing opinion of CURIAM:—The PER affirmed; All con- judgment court’. opinion ed cur.’
Nellie F. Respondent, American Life Insurance Lacy, Central Appellant. *8 (2d)W. 193. Co., January City Appeals. 1938.
Kansas Court of