*1 Watson, held in State v. opinion know what motor vehicles seen to S.W. them being S.W. 1011 rate operate may 1014. speed, the jury The admission [2] give weight are and have to their persons determine, opinion their Leo J. GASEN’S DRUG ZIPP, Plaintiff-Respondent, Defendant-Appellant. No. 54318. STORES, INC., opinion testimony, said after witness Missouri, Supreme Court speed, “judge” could not defendant’s No. 1. Division largely discretion of the within the Jan. 1970. dis- judge, trial and we find no abuse of Rehearing Motion for or Transfer permit- cretion. The court did not err Denied Court En Banc ting give opinion his witness 9, Feb. speed of defendant’s vehicle. is that last contention Defendant’s his overruling motion erred court disregard the court instruct by the state
an given answer witness objection an
after the court sustained
to the answer. patrolman, highway Meyer, a state
L. L. describe skid marks
asked state to collision, an-
he found at the scene of to the North
swered : “The skidmarks were point impact two where the
vehicles and these skidmarks was met and there pickup truck Southbound
was also other vehicle. skidmarks left court sustained car.” The Chevrolet objection ground this answer hearsay evidence,
it the wit- because make the skid
ness did not see the vehicles
marks, de- overruled immediately but
fendant’s motion to instruct court erred
disregard the If the answer. error refusing so instruct Later prejudicial
was not to defendant. es- testimony testified to the witness detail,
sentially in more the same facts but In these objection by defendant.
without cured,
circumstances, error, if any, was de- prejudicial
and could not have been
fendant. judgment is affirmed.
SEILER, J.,P. concurs.
STORCKMAN, J., absent.
HOLMAN, J., sitting.
«13 weighed 2,970 pounds. upper portion of the safe had walls. It was heavier 4½" 3 nn " than part, the lower which had walls. Gasen, Although plaintiff’s answer *3 request admissions, for categorically denied employees or were assist did as- any sist in moving the into manner safe store, the evidence at trial the the showed clearly that employees Gasen’s were assist in getting the into store and safe the point here made Gasen the Rabus, employee, Henry whom charged negligence specific act of the not, time, causing his injury at that was acting scope employment within the of his by Gasen.
According Zipp, he and another Whitner, Rudy E. employee, C. S. assisted employees, and Gasen’s uncrated the safe attempted by roll- to move it the store inside However, it when pipes. on three iron they door, the they reached found Thurman, Howald, Nixon, Rob- Smith & left crate, bottom which the Hillsboro, Smith, plaintiff-re- ert for Lee safe, through go under wide to the was too spondent. back doorway. The safe rolled Morris, Louis, appel- Gerald D. St. edge eight some six to feet to the lant. sidewalk. E. ter- then Whitner went C. S.
WELBORN, Commissioner. dolly. got hydraulic jack minal and arms, basically This metal device two Appeal by defendant-appellant Gasen’s each several feet seven inches wide and Stores, Drug Inc., from judgment on The outer length, mounted on rollers. plaintiff-respondent verdict favor of Leo twenty-six inches edges of the arms were Zipp personal injuries. J. A safe. apart, exactly the width from hydraulic raise the arms device would This action injuries arose out of sus- approximately three their level of lowest Zipp tained others were while ground on which inches the floor above attempting into to move safe the Gasen six height to a of about the rollers rested Drug Missouri, Festus, Store at rear hydraulic inches. The device at afternoon was a March which by handle dolly operated employed by truck driver Truck C. E. S. steering also device. served Lines. He the C. E. truck in drove S. which the had been safe loaded crated crowbar, raised and Using a the safe the terminal to safe the Gasen store. The the bottom it placed blocks under from the truck auto- removed run dolly was Then the crate removed. placed on company wrecker mobile safe weight of the safe under the and the edge north in front of the sidewalk dolly blocks to was transferred from the store. edges of The outside arms. dolly arms. edges of parallel with the It The safe was made metal. at portion safe However, the It high. square inches 63 inches end of dolly front extended somewhat that the east side safe, over the end of dolly pushing Rabus was came arms so that placed turn, against rotating could be the wall forward in clock- a short got when it to its location inside store. wise. fell, Zipp’s it
When the safe struck The men caught tried to arm the arm between the safe the safe to be shake sure that it was securely dolly. jamb the door which was in center was, Satisfied they began store pushing two-door entrance. dolly and its dis- across the sidewalk nature extent will be load appellant’s the door. Whitner was handle or cussed connection with claim northern dolly, end of farthest from the verdict is excessive.
store. Rabus was on the northeast corner In points ap- the view of raised on this safe, it, pushing the right with his peal, not we need detail defendant’s evi- north hand the side of the safe his and dence, which, effect, was that Rabus shoulder against Zipp the east was side. not helping to move the it safe when corner, on southeast walking the backward Rabus, fell. According to and Whitner with steady his hand on “to the safe it.” Zipp trying get to the on the safe they dolly the safe fell got When the and toward the door safe about feet 1½ safe, while door, Zipp squatting alongside the Zipp, looking the over his adjusting shoulder, the blocks under it. that two girls saw two wanted to come Just girls got door, through it to out the told his “either the started door. He coworkers safe, Zipp grab it fall. to the but something hold or wait a minute or to tried caught continued fall dolly to and his arm be- that effect.” movement of the jamb. tween the safe the door stopped. its load Carter, Then, girls of the according Zipp: to Lorna one two just out door came the before safe the then, “Well, I my still on the hand had fell, was called as a witness the defend- safe, see, glanced I if it had back to see ant. She that she related seen the had was clear we through. that could come on safe dolly the on the moved to door While I was looking girl back the one Zipp backing up to door as the did come out through there and other the safe was moved toward door. the the one my was out of line of vision and I don’t know whether she through went at that Plaintiff’s cause of action was sub I felt time not. the safe and I move on theory “pushed mitted that Rabus glanced up and Mr. Rabus had his hand warning safe without with sufficient up and shoulder leaning into the safe force” Appellant to cause it to fall. con fell, that’s when it safe. tends upon there was no evidence charge negligence might
which such a be because there was no based evidence “ * ** I back felt looked I [W]hen Rabus ordinary knew or exercise move, I felt safe move and that care should known that the would safe glanced is when I back to see what was pushed fall if in the manner described going on and that’s when I seen Mr. Rabus plaintiff. right with his hand—I all of the could see part body, of his with his shoulder Appellant’s argument on this score is
hidden behind this arm premised that, safe. He had his testimony on of Zipp up here and his (indicat- he, other hand here after squarely dolly, the safe was on the ing) up when I had this looked he “wiggle” Whitner all tried to and Rabus up body foot to the safe his the safe around and found it “safe and leaning position towards safe.” points solid.” also Zipp’s testimony that safe did require balancing not cited. This not shake does ” ‘probabilities.’ Seidler, wobble as it toward moved door Price prior the time that called [12, 13], According appellant, Zipp’s halt. own A view of the evidence favorable testimony he was unaware showed that support the finding any danger falling of the safe’s as it was top-heavy safe with a metal bottom had chargeable moved and Rabus with placed dolly; on the metal arms of superior any knowledge possible danger. that, although the sides of the safe were doubt, appellant argues, is no square arm, dolly There with the sides of the knowledge danger to another end rear of front overhung safe liability act is basic that an involves dolly Rabus was aware arms. “A man cannot held re top-heavy. Although safe safe sponsible theory negligence could on the be “shaken” as it rested act or omission dolly, dolly from an moving part knowl required “steady” unless it appears assistance chargeable edge or reasonably was by pro- so safe as it moved. He did knowledge safe, act or omission involved ceeding thereby applying ahead Am.Jur., Negli danger applied another.” the force force counter gence, p. cases Kettler Rabus arm shoulder *5 with his and § Hampton, Mo.Sup., opposite 365 S.W.2d Zipp. corner While of the safe Cor Taylor Dale-Freeman of [3]; moving, dolly the was the movement 57, 60 poration, Mo.Sup., “steadying” 389 S.W.2d dolly coupled the with the ef- [1- applied Missouri Petroleum fort 3]; and Komeshak of the force countered Co., 263, 270 Mo.App., 314 S.W.2d by Products in- Rabus the safe without and moved applica by appellant, all involved cident [5], jury the sidewalk. cited across The could proposition. unquestionable tion this of that Rabus knew should have or found acknowledges However, appellant candidly have that the known forward movement present the did not dolly steadying that its cited the cases the efforts problem is wheth significant facts here involved. in the balance maintaining case, there er, particular against on facts of this was the the force which he safe might jury which the that applying. was from Rabus have known evidence could Whitner, of Rabus’s the the handle of pushing have found the essential element on acts, the consequences against of his dolly, applying knowledge the was force realized have Rabus could also charged as safe itself. the toward Zipp, proceeding that backward In question, the considering this evidence the door, steadying force applying a was must be light viewed the most favorable pushing supplying the safe. Rabus was plaintiff, is entitled the safe itself. When against force all benefit of favorable inferences which have stopped, should Rabus movement might properly by the jury be drawn force resumption his realized that Hampton, such Kettler v. evidence. Mo. against without movement the safe [1], Viewing countervailing without dolly and light, evidence we must deter- Zipp’s might cause force effort jury properly mine whether could have did, fall dolly, it on move safe constructive, “knowledge, found actual ap- he force which direction on part of the defendant there plied Zipp. toward sufficiently some probability testimony Zipp’s ordinary person Appellant argues serious be “steadying” the cannot precautions it. take to avoid Zuber v. exert- inference that he was Clarkson Construction basis of by there force exerted cit. cases counter to that loe. “First, employee Rabus was testimony is defendant’s However, Zipp’s when Rabus. plaintiff assisting moving the safe and light of his further considered in testi- scope acting when he did so was within the mony position respect his as to employment defendant safe, course of moving and the fact that he Store, Inc., Drug backward, Gasen’s the in- walking we feel that countering that he the force ference “Second, employeepushed doing so said applied Rabus is warranted. warning the safe without with sufficient a direct result it may force so thereof appellant’s observe that basic fall, position appears, effect, caused accident did not and not have could occurred “Third, employee thereby negli- said in the manner that Zipp This testified. gent, and fact, was a resolved jury. “Fourth, quite obviously negli- as a disbelieved direct result of such testimony Rabus’s gence plaintiff damage.” that he wasn’t even near sustained it testimony when fell. The contends instruction store, one of the girls leaving the called as ignored plaintiff’s testimony that the safe by defendant, a witness contradicted Rabus’s pushed with sufficient force to cause testimony as to how the accident occurred. it to move forward and clockwise proof No impossibility of the occur- dolly, inches, eight some six to before it rence, principles based either physics tip. Appellant argues that, started under experience, common human has been plaintiff’s instruction, might have advanced. testify when, Rabus did plaintiff they found for if even did find effort, demonstrative he tried to move that the safe fell as did. the safe situated on a dolly such as that Appellant argues that jury might involved, here he was unable so. to do believed that ready the safe was tip over However, reject could that testi- *6 at the slightest touch from Rabus’s side and mony could, event, in no be the basis that supplied by merely Rabus such force for a conclusion that Rabus was under no safe, touching perhaps to rest his hands. obligation too warn Zipp because of the improbability that one man could Apparently, appellant move the would have had safe. plaintiff pushed submit that Rabus with sufficient force to cause it to move opinion, evidence, In our viewed most eight six to inches forward and clockwise favorably in light plaintiff’s conten- and then fall plaintiff. tion, did make an issue jury for the issue of Rabus’s The court opinion, evi- In our this was an properly left the issue jury. to the ultimate, dentiary, clear not an fact. The instructing
purpose the new method juries, adopted Supreme Rules Court Appellant plaintiff’s that contends 70.02, V.A.M.R., effective 70.01 Janu verdict-directing instruction was erroneous issues, ary 1965, was to submit ultimate because it submitted different to the evidentiary This an instruc not details. theory the occurrence than that shown Plaintiff, not in M.A.I. tion found by plaintiff’s it sub evidence and because instruction, subject to the drafting the theory supported by mitted a not the evi requirement that the instruction submit dence. issues, within the ultimate factual be scope general pleadings, not as verdict-directing Plaintiff’s instruction facts, sume issuable and be understandable read as follows: reasonably intelligent jury. Price Seidler, Mo.Sup., “Your verdict must be for if 823-824 S.W.2d you believe: [15], [16-18], Respondent [6,7]. was whe- issue in this case
The ultimate it, objection was raised pushed points out that when Rabus ther the safe fell not, 79.01, as neither at trial under Civil Rule V.A. Zipp. did warning to without M.R., appellant’s new nor motion for states, testify explicity that Rabus appellant 79.03, required by trial as Rule V.A. that, Civil did state when He “pushed” safe. preclude move, M.R. would con- Such omission safe started back as the he looked objection for the lean- sideration of raised up hand and shoulder had his “Rabus * * appeal (McConnell Pic- possibility first time on The into the Company, Freight of Walsh 432 S.W. a mere touch the safe fell from unless, appellant 2d re- testi- as [17]), The suggested. Rabus was nowhere quests, considered be shaken safe could not mony that dispel plain under the error rule. Rule Civil 79.- would started before the movement plain- theory V.A.M.R. entire an idea. The force. pushed with that Rabus tiff’s case was not do consider that the error in this degree the exact describe Zipp never did produced injustice case a “manifest or mis- “leaning force, Rabus but fact carriage justice” meaning within the of force infer the use into the safe” would parties, Rule 79.04. Counsel for both touching. than a mere other argument jury, duty related Rabus’s ordinary to the standard of care. The or whether issue before The by plaintiff’s “Negligence was told counsel: cause the force and apply not Rabus did ordinary is said to be failure to use testified, he whether, fall safe to care.” such a statement not While would away did not even was several feet ordinarily instruction, supply a defect in an ade- Plaintiff’s instruction the safe. touch the statement is lacking significance not factual issue presented ultimate quately in considering whether there an in- eviden- required to submit the not justice miscarriage justice because by appellant. tiary suggested matters of the failure of bridge the instruction to submitted argument the instruction gap negligence ordinary between basis theory pleaded is on same not care. Defense argued: counsel “How submitted the instruction argument would he know the twenty- [Rabus] by the evidence. theory supported seventy pound nine hundred going safe was merit. argument is without you move ? How would know contends verdict- move? Did anything he do out of the *7 because instruction was erroneous directing ordinary ? Did he ordinary exercise care ?” support the re- to there was no evidence This quired finding of Rabus’s pre the issue opinion our In based, upon argument the essentially, is there adequately and jury the sented to a upon evidence which there was no plain the application of occasion no might based. We of finding negligence plain error Application error rule. adversely that contention have determined basis. necessarily on a case-to-case rule is there was a appellant deciding to application here its support find no Rabus. negligence of case of submissible Coursey v. by appellant. in the cases cited 847, and
Hawthorne, Mo.App., S.W.2d 389 Brown, Mo.Sup., 320 assignment Highfill v. Appellant’s next plain error application giving plain involved the court’s error is based on raised party who had not Three, a defining rule favor of Number tiff’s Instruction was reversed the case point There of error when “ordinary 11.05. care” under M.A.I. party. by another that, properly raised plaintiff’s verdict- for error since is no doubt City, Mo.Sup., 383 S.W.2d neg Fields v. terms of Kansas directing spoke instruction damage aof 11.02, involved consideration ligence, subd. I should M.A.I. there had been Mo.App., in a case where Epps Ragsdale, instruction given. been of objects involved, an obvious error in the reference there a neck and a back device, brace and a might instruction number in motion new traction afford However, jury. Taylor, trial. Helfrick 440 S. trial court had ad- mitted the referring to the articles The [5], W.2d while case. assist- ance objects as which the actual defining negligence use of M.A.I. afforded was 11.02 considered in mandatory negligence case, determining in a did not whether the ad- mission of plain involve the the exhibits an error rule. abuse of trial However, court’s discretion. it does the court’s assigns as error not showing follow a view the actual jury view permit the refusal to jury objects helpful of the actual would be dolly. The involved, on sitting safe necessarily an dis- demonstrates abuse of by subpoena dolly had obtained used been cretion when the trial per- court refuses to safe, sitting Truck to C.E.S. Lines. course, mit such a view. Of if a view transported truck dolly, had been on the not jury, be of assistance to the half block to a lot about a parking there no could be abuse of discretion. held. trial at which courthouse However, helpfulness de- itself does not testifying be- on investigator, An insurance prive right the trial court to con- defendant, had ob- he half testified that determining sider other circumstances in plac- dolly supervised the tained and had request permit whether a dolly. had The safe ing of the safe object the courtroom and leave view placed squarely the front case, granted. photo- should be In this dolly, edge at the front with the of the safe graphic clearly portrayed the ob- evidence the end inches over some one and one-half jects dif- involved. The witnesses dolly arms. The witness ficulty describing testimony in oral them. position, did pushed at in this The trial court did not abuse its discretion crew, three men in the truck but the in refusing requested “A view. view move, them could did not and that none of a matter right but rests push it over. sound judge discretion of the trial proper necessary whether it is enable requested Appellant’s counsel then understanding to obtain clearer permit go park- court to proper of the issues involved or make a dolly. lot sitting to view the safe application of the evidence. ‘It is request There had been refused. when there flagrant has been a abuse of request, during prior discussion of the discretionary power that this court the court had noted that several photographs Co., Young will interfere.’ Fire v. Pa. Ins. dolly had been into evi- introduced 861; 1, 20, Very 269 Mo. 187 S.W. dence. The defendant introduced four 500; (Mo.App.) Coyne v. Willi S.W. photographs Plaintiff intro- dolly. 376; (Mo.App.) Golland Gunn v. 243 S.W. dolly, large photograph duced a color Hemphill Co. (Mo.App.) Lbr. 218 S.W. safe, appar- photograph as well as a 978; Ellis v. St. Louis I. M. & S. R. ently itas stood inside the store. Mo.App. 395, City 839.” *8 S.W. 182, St. Louis 52 Worthington, v. 331 Mo. Appellant contends that the trial 1003, 1010. S.W.2d court refusing abused its to discretion permit jury objects, to view the actual The admissibility,” doctrine of “curative contending that such a view would have by appellant, Sears, invoked citing Alvey v. helpful been instructive and to Co., Mo.Sup., 231, Roebuck & 360 S.W.2d request. that refusing 234, the court erred in Hwy. and State ex rel. State Comm. v. sup In the appellant case cited Mo.Sup., Schutte Company, Investment 334 port proposition, Hampton of this v. Rauten- 241, 247, application S.W.2d has no here. strauch, Mo.Sup., 105,the court Testimony and photographic evidence of- did consider the which the exhibition help plaintiff fered permit in his case did not
620 defendant, right, employee a matter of to is derived so as such as have to make obj party litigant. That remained more The the actual ects. available to such view ap- rule existing a matter the trial exercise of its reason for has court’s plication Cooper in such a situation. See discretion. Co., Metropolitan Mo.App., v. Life Ins. Appellant complains of the trial We will ex- [4], S.W.2d not permit to attorney, court’s refusal tend the rule a to cover such situation. final argument, to comment absence Whitner, Appellant that as argues also Whitner, Rudy employee Mr. the fellow employee a fellow Zipp, more avail- plaintiff present who was at the time able, by relationship reason to of such question. The trial occurrence Zipp, within permitting the rule an ad- equally court ruled that Whitner was avail verse to inference be drawn failure to permit party able to and refused to either produce Whitner as witness. Appellant extend to comment. would rule, “Both ties of frequently applied this case interest affection have been Missouri, held to employee party justify that the of a the inference. The family litigation party relationships seem to offer obvious is under the control might sup- instances where a equally not available witness therefore as posed favorably party litiga disposed be more to one opposing witness to the may than the other Therefore, party parties, tion. and the courts opposing such cases, have argue inference raised the inference rarely, however, employee testify extending presump- did would have past tion family. employer. immediate adversely to his See employee economic Mo.App., interests have Hancock Union R. of an Pac. peculiarly held to make him [6], [7]; Duboise avail- S.W.2d 228-229 Inc., able Express employer, splitting, to his the courts Railway Agency, however, on their [3]; conclusions as to wheth- S.W.2d 113-114 Wehr- [1,2], Inc., er Lines, special availability kamp after continues Motor Watkins relationship has been 714-716. severed. professional physician relationship of Appellant apply the rule as to patient attorney and client also al- Whitner, failure of call been held to special indicate control so Lines, though employer, Truck C.E.S. justify inference; however, the cas- party litigation. was not a The ar- es considerably indicate more reluctance on gument compen- workmen’s C.E.S. part in permitting courts in- sation some paid insurance had ference from such relationship, perhaps temporary disability payments and medical from a consideration that such witnesses Zipp’s injury; the insurer was likely swayed interest, are less to be litiga- interested in the outcome and, in attorney, the case of the payments and tion to the extent of such ethical considerations Annota- involved.” possible payments also additional tion, Relationship party between and wit- the extent C.E.S. was interested to ness giving rise or affecting pre- adversely af- might loss to insurer sumption or inference pro- from failure to fect insur- compensation its workmen’s duce witness, or examine 5 A.L.R.2d premiums. Appellant ance cites no cases application the rule here in Appellant holding has been so extended. has cited no cases effect, say, in employee party would extend the rule fellow a re- is such *9 employee nonparty that an lationship gives of a has an rise to inference thereby in litigation remote interest be- to call party’s from the failure his fellow subject employee. to the control comes of actual Narens v. St. Louis Public Co., party 37, litigant through whom such Service Mo.App., interest 238 S.W.2d
621 dis- physical no point, right-handed and had by appellant cited on case His ability prior the accident. such situation. did not involve He re- left forearm. his was confined to presented in Holtz v. situation was fracture open an comminuted ceived Co., 538, Drayage Daniel Hamm 357 He forearm. the left radius ulna of 883, con- court [6], 209 887 Louis Hospital in Barnes St. was taken to plaintiff’s in fel- cluding “the case injury. 30, 1965, day March on equally employers employees low performed un- promptly operation An was parties.” available The trial court’s to both A considerable general anesthetic. der case, in this in ruling accord with re- muscle tissue area necrotic holding, was not erroneous. made over low- Incisions were moved. ulna, the ends radius and er end of the trial contends that the in made exposed, and drill holes the bones in refusing court its tendered erred in- a rush rod the bones the ends of contributory struction on re- bone was The fracture each serted. instruction would have submitted two passed rod across duced and the rush grounds contributory negligence: the fracture fracture into the bone above either failed remove “[P]laintiff prevented Swelling bone. on each hand and arm from between the safe and the being brought together wound move, building when the safe started to open. wound was failed to Henry (plain warn Rabus that his tiff’s) dangerous position.” arm inwas 5, Zipp returned to sur- April On delayed primary closing of gery and a answer, setting up Defendant’s general under anesthetic. wound was done plea plaintiff’s negligence, contributory be closed were sutured. Wounds that could plaintiff’s made no reference failure to radius in the area where the damage Tissue plaintiff’s warn Rabus arm that the wound great out was so come dangerous Therefore, position. it was not graft and a of skin could not be sutured error for trial in- court to refuse the in that area thigh taken was made from submitting grounds pleaded. struction fully the area with skin. in order cover Allen, Mo.App., Litt v. 313 S.W.2d plaster cast. placed then in a The arm was ; [6, County 187 Cochran v. ] Jefferson April 13, Zipp was released from On Co., Lumber Mo.App., 132 S.W.2d hospital. [10,11]. Zipp treating physician once in saw his Appellant’s final contention is May X-rays taken in once June. the verdict favor of July, 1965 showed that the bones broken plaintiff was so as to grossly excessive re- going were not to unite and passion show it was the result of Hospital July admitted to Barnes prejudice on part jury and, al operation graft. July for bone On ternatively, is excessive verdict anesthetic, performed, under general should reduced remittitur. We packed and bone the iliac crest was from It is consider the latter contention first. fracture sites. He was dis- around the ap primarily contention advanced hospital August He charged 5. merit, and, pellant’s argument, if without September in his office saw the doctor contention the size the verdict again 9 and on November when proof” will re is “conclusive misconduct finally the arm. cast was removed from quire Pyles St. Louis consideration. Public Service Zipp’s Zipp’s According physician, [8,9]. trial, except at condition removal rods, driver, approximately years old rush same truck upon He examination physician observed September, the time trial *10 cap- age earning left and his diminished that time the tiff’s At on March acity, any, changing fac- in diameter if economic inch was found one forearm compensation tors and the reflecting muscle amount of right, smaller than forearm, approved atrophy cases similar or some awarded in the left loss fairly injuries. comparable There The ulti- remaining fibrosity of the muscle. inadequacy the left mate test excessiveness surgical scars on injury and fairly re- of an award what will reason- in the left elbow Motion forearm. ably compensate injuries sus- degrees at flexion for by about five stricted Supina- extension. tained.” degrees and fifteen hand limited one tion the left Spring- See Turner Yellow Cab Co. v. normal sixth of pronation
half and one field, Mo.App., 361 S.W.2d 157-158. the left wrist flexion and extension of index, a little half of normal. over Appellant cites three cases which hand fingers the left ring middle and. states show what has been considered a making a fist palm would not touch fair damage measure of an injury swelling stiffness and residual because plaintiff .sustained, appellant although power. On muscle joint loss of admits that none of its cases involved sole- 8, 1968, admitted July ly type of injury here suffered. days. During Hospital three Barnes un- stay were removed the rush rods Caraway Ry. A. T. F. & S. general der anesthetic. $60,000 involved a experiences pain that he verdict, appeal $45,000, reduced on ato time, steady a his arm all the “like 19-year-old boy who sustained a fracture of right driving a gets bruise.” He all along left ulna with numerous other get good tight grip truck but he can’t fractures and injuries which left him about steering wheel with his left hand. Be- permanently partially disabled. He 50% accident, fished fore the he hunted and hospitalized days, for 26 with medical spare “almost all” of his time. Since expenses $2,172.62. wages No loss of accident, jar gun he found that the of a that, shown. argues if the longer hunts. arm and he no shot hurts his injuries by plaintiff sustained in that case fishes, difficulty casting He still but has warranted recovery only $45,000, handling and in a boat alone. injury involving the left arm must alone have justified only portion of the re- $6,000 earnings of around lost covery finally allowed and an award of being eight His off work for months. $42,800 for such an in this case is expense $2,514.63. medical totalled Since obviously excessive. November, 1965, he returned to work driver, regularly has a truck re- worked Kuhn, In Flournoy Mo.App., 378 S.W. ceiving wages. scale of His union 2d the court trial and new ordered $8,881.45. earnings for 1966 were also held the new trial should include principles governing our considera- damages the issue of because a tion of the here raised have high verdict in favor of a school student example, often stated. For Goodman who had sustained a fracture both her Co., Mo.Sup., Missouri Pacific R. 312 S.W. radii, right healing the left with 2d [8, 9], the court stated : right further without trouble and the limitation flexion at the elbow and a gaug- precise formula “There limitation of motion at the wrist was ex- Each ing whether a is excessive. verdict girl hospitalized, cessive. The was not depends upon peculiar case facts. own spe- lost no time from school and had no given Consideration the nature must losses, injuries plain- damages. cial extent of the *11 623 Kan- was Nussbaum v. in connection an Appellant also cites considered with in- Maine, of City comparable Yards Co. somewhat to that here in sas Stock $82,106.- Butler, City in Hart of Mo.Sup., which an 393 S.W. $25,000 Plain- 2d held not excessive. decided in a 20 verdict was 1965. There case, man, 47-year-old $20,000. in a suf- verdict tiff was reduced Plaintiff and a 68-year-old piano the left radius fered a fracture of teacher who sus- ulna, disability resulting to the shoul- tained with fractures of the left leav- humerus disability severe head a der. Plaintiff also sustained functional of left shoul- fracture, pelvic injuries, lung injuries, der of hospitalized She was 50'%. (cid:127) fractures, days special $900, lumbar damages sacral and vertebral and had of but fibula, and all of earnings impairment fracture of the left tibia suffered loss no of plaintiff of earning capacity, although which to leave combined she encoun- 75% industrially un- permanently and tered difficulty piano disabled in her teaching. some employable. Appellant argues, again, that The verdict in case considerably is only injury a since the arm constituted larger finally approved than the in amount portion injuries, of plaintiff’s minor However, ap- Hart. do we not feel must been on- injury amount for such proval of verdict this case would relatively portion ly a of the total small uniformity. do violence rule to our award. significance Of is difference between here, age Miss and Hart particular- none these cases find original injuries more serious sustained involving combina- ly helpful. Cases costly Zipp, the more and more serious injury to injuries included tion of repeated surgical procedures required by Although are little assistance. arm Zipp, his of earnings, loss the interference limb same major and, with his former recreational activities hospitalization Flournoy, the absence finally, constantly eroding purchasing dif- that case demonstrates considerable power dollar, amounting to some severity injuries there in the ference from the time Hart decision 20% and here involved. present. Respondent decision points to Considering all Ross, these factors and view- Hamilton v. ing, as must, we the evidence most favor- $20,000 which sustained a verdict verdict, able we conclude that the 70-year-old sustained man who favor of a excessive, and, necessarily, verdict is not and wrist right “Colles fracture” of his therefore, elbow, grossly verdict not so the left
comminuted fractures of excessive as to be conclusive evidence total of hospitalized twice passion prejudice against defendant. $3,800 days, special damages of arm, of motion of the limitation 60% Judgment affirmed. earning impairment who showed Respondent earnings. capacity loss of $20,000 in that case argues verdict HOUSER, C., con- would affirm equal $27,200 to require today dition remittitur. that an terms and purchasing power justified Zipp was additional HIGGINS, C., concurs. ages between difference medical
Hamilton the more serious procedures required by Zipp. PER CURIAM: WELBORN, foregoing opinion which we find recent case most C., damages adopted opinion as the of the Court. question of excessive in which the SEILER, HOLMAN, J., con- J.,P.
cur.
CARVER, in the Special concurs Judge, require remittitur
opinion except he would C., HOUSER,
as stated memorandum adopts.
which he
STORCKMAN, sitting. J., not
HOUSER, (dissenting). Commissioner
I dissent opinion damages, being of
amount of $12,000to
that a remittitur the order of uni- required the rule under Terminal
formity of verdicts. Ciardullo Louis, Mo.Sup.,
Railroad Association of St. 516; Hart 61 A.L.R.2d S.W.2d 568; Butler, Boehm Co., Mo.Sup.,
v. St. Louis Public Service 361. Respondent, Missouri,
STATE of Danforth, Gen., H. Atty. Peter C. John WARE, Appellant. Robert City, Gen., Atty. Ruger, Asst. Jefferson No. 53758. respondent. Supreme Missouri, Court of Louis, appellant. Hubei, George C. St. 2. Division No.
Feb.
PRITCHARD, Commissioner. jury, appellant Pursuant to a verdict years imprisonment was sentenced to ten robbery the commission of the crime appeal the sole degree. first On prejudicially point is that the trial court appellant’s mo- failing erred to sustain attorney tion for mistrial after the state’s inquired appellant on cross-examination convicted previously he had been whether rape It is asserted in Minnesota.