Gricus v. United Railways Co. , 291 Mo. 582 ( 1922 )

This is an appeal from an order granting a new trial after verdict for defendant in an action respondent brought for damages for injuries she alleges she received in a collision between two of appellant's cars, on one of which she was riding as a passenger. The injuries alleged are bruises and contusions upon the hip, side and back; a straining of the muscles and tendons of the back; bruises and a straining of the spinal column; and a miscarriage, which induced nervous shock, headaches and insomnia. There was evidence tending to prove respondent was, while a passenger, injured in a collision as alleged, and evidence to the contrary which tended to show that the impact of the collision was so slight that injury could not have resulted to respondent therefrom. There was also other evidence from which the jury might have found that the miscarriage alleged did not result from the collision. The jury found against respondent on the facts. The court sustained the motion for new trial on the ground that error had been committed in certain rulings excluding testimony.

In this court respondent contends the order should be sustained on the grounds assigned by the trial court, and also because of the refusal of Instruction 10 requested by her counsel.

I. A physician who attended respondent two days after the collision occurred testified she complained of pain in the side, back and head and of a "bearing down like sensation." Upon objection this testimony was stricken out. TheExclusion of witness followed this with a detailed statement ofCumulative what he determined to be respondent's actualEvidence. condition as disclosed by an examination he made. He said he made a very careful examination of her and found her very nervous and suffering very much; that there was a slight contusion on the left side and also on the left hip and considerable tenderness over the back; that he discovered this from manipulation; that she shrank and gave indications of pain when the parts were manipulated; that she told him of suffering bearing down pains, and he gave her morphine to ease that; that he took her word for her nervous condition and gave her a sedative. He also testified fully concerning the evidence of a miscarriage and its effects. Respondent also testified as to her injuries and sufferings.

The real contest in this case was upon the question whether respondent was injured at all in the collision in question. On the record it is not surprising that the jury found she was not. That is what the verdict means. Even if it were held that it was error to exclude complaints when the witness, a physician, who is offered to prove them, testifies that the conditions the complaints tend to prove did in fact actually exist and were disclosed to him in the course of a professional examination he made, yet the evidence was, in the circumstances, merely cumulative evidence of the amount of damage suffered, and its exclusion cannot be relied upon as error when the jury found that respondent suffered no injury at all through any fault of appellant. In some circumstances the nature of an injury may tend to prove the cause of action. [Orris v. Ry. Co., 279 Mo. 1; Hatchett v. United Rys. Co., 175 S.W. 878.] This is not such a case. The jury never reached the question of damages. [Stark v. Pub. Co., 160 Mo. l.c. 550; Hermann v. L.H. P. Co., 144 Mo. App. l.c. 154; Hayden v. Gravel Co., 186 S.W. l.c. 1194, 1195.] Numerous decisions from other states which announce the same doctrine are cited by counsel. In the circumstances it appears the ruling referred to was in no way prejudicial to respondent.

The same principle applies to some of the rulings discussed in succeeding paragraphs.

II. There was no error in excluding the physician's testimony that he found respondent "in a very bad shape." It was a generalization. The physician then gave all theGeneralization. details of respondent's condition as he found it and upon which he had based the excluded statement.

III. There was no error in excluding Mrs. Burke's statement that the reason she did not leave the car at once was because "Mrs. Gricus couldn't get up." This was merely a conclusion. The witness subsequently testified to all the relevantConclusion. facts relating to the question whether respondent "could get up." The same ruling must be made as to the exclusion of Mrs. Burke's testimony that she asked respondent "to stand up and she said she couldn't." All the facts bearing upon the question whether she was able to get up were fully put before the jury. Nor was there error in excluding Mrs. Burke's answer to the question whether respondent "needed assistance in getting up the steps" at her home when she arrived there. It called for a conclusion. The fact that assistance was actually given was let in. Further, no offer to show what answer would have been given was made. What is said in paragraph I, supra, is applicable.

IV. There was no prejudicial error in excluding Mrs. Burke's testimony that prior to the date of the alleged collision respondent "was always well." The witness subsequently was permitted to testify that she never knew respondentRejection: to be sick. She saw her "most every day." In anotherLater instance the statement of this same witness that theAdmission. impact of the collision was sufficient to throw her against respondent was excluded. In the first place, the question asked her did not call for that comment. In the second, she was allowed, in answer to a proper question, to testify to the same thing.

V. Mrs. Carter was asked, "What would you say as to the condition of her [respondent's] apparent health and strength, now"? She answered, "Very poor." An objection to thisApparent was sustained. This was a conclusion of the witnessHealth. concerning the then appearance of the respondent who was at the time before the jury. She subsequently was allowed to testify that respondent "appeared to be suffering and in a very weak condition." Respondent was not injured by the ruling.

VI. There was no real contest upon the question whether respondent had suffered a miscarriage. The contest was rather upon the question whether the miscarriage was the result of injuries received in the collision. On this recordMiscarriage: on the evidence admitted there was ample evidenceProximate that respondent was in a bad condition followingCause. the collision of the cars. It is inconceivable that the jury could have found she was not. The question was whether that bad condition was a result of appellant's fault. The jury found against respondent on this issue. While testimony that respondent's injuries were permanent was admitted, yet some testimony tending to show some of the particulars of a chronic condition, as the result of the miscarriage, was excluded. This tended solely to add to the evidence of damage already in. The jury did not reach the question of damages at all. The ruling, in the circumstances of this case, was not prejudicial under authorities already cited.

VII. The petition specifically alleged certain physical injuries which were then alleged to have produced a miscarriage. In cross-examining a physician who had examined respondent under an agreement of the parties, respondent's counsel askedPsychic whether "shock, alone, without an injury, would produceShock. a miscarriage"? On objection the witness was not allowed to answer. The "shock" thus referred to was termed a psychic shock. The physician had testified this was a mental state produced by certain conditions he described. No effort was made to show any such conditions existed in connection with respondent, and no offer to show what the witness would say in answer to the question or what the true answer to it was. In these circumstances the ruling excluding the answer was not erroneous.

VIII. Instruction 10, given for appellant, told the jury not to assess any damages for "any bruised back or any bruises of the spinal column." The petition alleged plaintiff had received such bruises but there was no evidence tending to proveInstruction. these allegations. In fact, the testimony of respondent's physician showed no such bruises had been received. There was no error in giving Instruction 10.

There was no error in the case which prejudiced respondent. The order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and render judgment thereon. All concur, except Woodson, J., absent.