Johnson v. Springfield Traction Co.

FARRINGTON, J. This suit was brought by the widow of James Johnson against the Springfield Traction Company under section 5425, R. S. 1909, for wrongfully and negligently killing her husband in a •collision of one of its street cars and a vehicle (or rather a kitchen safe in a vehicle) in which deceased was riding. A judgment for five thousand six hundred dollars is appealed from. The facts surrounding the collision and bearing on the question of defendant’s negligence were at this term of court passed upon in an opinion prepared by Judge Sturgis in the case of Marth A. Johnson v. Springfield Traction Company, 161 S. W. 1193. A full statement of such facts is set forth in that opinion, the only difference being that in that case Mrs. Johnson sued for her personal injuries sustained in the same collision whereas in this she sues under the death statute for the loss of her husband. Many of the instructions involved in this case were considered in the other ease, and as that opinion, together with the files in the case, passed in review before the Supreme Court upon an application for a writ of certiorari, and the writ was denied, we are reassured that the questions touching the points in that case which are also in controversy here have been correctly decided and will therefore receive no further consideration in this opinion. There are three questions raised by appellant that were not in the other case, and they are of such importance as to require very careful consideration. The first to be discussed relates to the contention that the plaintiff failed to show that the death of James Johnson was caused by the injury received in the col — 449 — lision. The second question concerns defendant’s contention that it cannot be held for the error of judgment of its motorman in thinking he could pass with his car safely. Lastly, we will discuss the instructions on the measure of damages. The record discloses that the collision occurred on September 2, 1912, and that Johnson died on September 12, 1912. The uncontroverted evidence is that the deceased was unconscious, or possibly in a semi-unconscious condition when he was lifted from the street and taken to the hospital, and that he remained so for at least two days. ' Some four or five days after the collision, erysipelas developed, and on the tenth day meningitis manifested itself, and this was the day before he died. The injuries- were in the shoulder-blade and on the head, the injury on the head causing immediately the unconscious condition. Doctor Evans, who was the first physician on the ground, and who attended Johnson in the hospital, was first asked by an attorney for the plaintiff: “Now I will get you to state what in your opinion as a physician caused Mr. Johnson’s death?” This question was objected to by counsel for defendant and the objection sustained. He was then asked by plaintiff’s counsel the following question: “I will get you to state whether or not if a person receiving such an injury as Mr. Johnson received there and had an injury on his head and other injuries that you speak of, I will ask yon. whether or not that might produce death?” Counse] for defendant objected “because the gentleman doesn’t fully cover the case and because the witness is not qualified. He has testified he was there only part of the time and was not there at the time of death.” The objection being overruled, the witness answered: “A person of his age, it would.” Doctor Pulbright testified that he saw Mr. Johnson the day the injury occurred very soon after being taken to the hospital, — 450 — and subsequently saw Mm several times before Ms death; that he attended the patient during the ten days, and that he never rallied thoroughly from unconsciousness; that erysipelas developed in four or five days; and that this disease could bring on meningitis, which he said was the disease causing Johnson’s death. The evidence all tends to show that Johnson died as a result of the injuries received in the collision. Indeed, there is no fact proven or theory advanced by the defendant denying that Johnson was injured and that he received the injuries testified to by plaintiff’s witnesses, or that the erysipelas, meningitis and death were brought on by any intervening cause. There is uncontroverted testimony in the record that erysipelas is an infectious disease, and that it can originate only through an abrasion, and that it is impossible to tell just when the wound or abrasion becomes infected with the erysipelas. Therefore, defendant insists that the physician having,sworn that Johnson died from memngitis, and that the form of meningitis from which he died may come from erysipelas, and that it is impossible to tell when the infection causing the erysipelas entered the wound, there is a failure to connect the death with the wounds or abrasions received -in the collision, and that defendant could not reasonably expect erysipelas and meningitis to follow even though its servants were negligent in causing the wounds or abrasions. This is fallacious as the testimony all shows that erysipelas manifests itself only through a wound or abrasion. It is therefore readily seen that if this is the only way in which an injured person may be infected with erysipelas, those who cause such wounds or abrasions may expect that erysipelas will or may follow as a natural consequence of such injury. There is no showing by the defendant that the deceased at any time prior to the collision had erysipelas, or that he received any wound, or was subjected to any corn dition other than the wound which he received in the — 451 — collision that -would bring about such infectious disease. This testimony, coupled with the testimony of Doctor Evans that the results which actually followed might follow such an injury, and that of Doctor Eulbright, the other attending physician, that they did follow, leaves the question beyond all cavil that the injuries received in the collision caused the death of plaintiff’s husband. Objection was made to the form of questions put to Doctor Pulbright. The questions, answers, and objections bearing on this point are as follows: “Q. You have deaths from meningitis and erysipelas? A. Yes, sir. Q. In this case what was the cause of his death? A. The cause of his death was meningitis. Q. What did that come from, in your opinion? By Mr. Delaney: We object to that. It is stating a fact.” The objection was overruled, but the witness did not answer. Again quoting: “Q. What, in your opinion, caused meningitis in this case? By Mr. Delaney: We object to that. He can state the facts just as he found them there.” The objection was overruled, and the witness answered: “The injury, I would say, caused meningitis. Q. The injury he received? A. Yes, sir.” It is insisted that the form of the questions was improper and contrary to the law in this State governing the introduction of expert witnesses and the form of hypothetical questions. The law on this subject has been recently expounded in the following cases: State v. Hyde, 234 Mo. 1. c. 251-253, 136 S. W. 316; Castanie v. United Rys. Co., 249 Mo. 192, 155 S. W. 38; Wood v. Railway Co., 181 Mo. 433; 81 S. W. 915; Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655; Taylor v. Railroad, 185 Mo. 239, 84 S. W. 873 ; Torreyson v. United Rys. Co., 246 Mo. 696, 152 S. W. 32; Roscoe v. Railway Co., 202 Mo. 576, 101 S. W. 32; DeMaet v. Storage, P. and M. Co., 231 Mo. 615, 132 S. W. 732. In all these cases it will be noted that the issue or con — 452 — test was sharply drawn; the plaintiff advancing a theory to connect the injury or resulting disease or death with the defendant’s negligence, and the defendant developing a contrary theory as a cause of the injury or resulting disease or death. In those cases it was correctly held that it is improper to permit an expert to draw a conclusion of fact which should have been left to the jury. In this case, however, the defendant has advanced no theory whatever that could have explained the death, while all the plaintiff’s testimony shows that it was the direct result of the injuries received in the collision. In other words, there was no contest. The question as to what caused the death was not an issue, unless it can be said that the mere speculation or suspicion that the erysipelas infected the deceased in some way unaccounted for or unknown to the defendant is a showing that the deceased contracted the disease in some way other than through the injuries received in the collision. And to us it seems that it would not be, under these circumstances, prejudicial to allow the attending physician to say that the meningitis which was the disease directly causing death was caused by the injuries received, there being no contest or question involved in the case that he did receive the injuries at the identical place where the collision occurred. [Bragg v. Street Ry. Co., 192 Mo. 331, 343, 91 S. W. 527; Porter v. Hetherington, 172 Mo. App. 502, 513, 158 S. W. 469, and cases cited.] But it is unnecessary for us to decide that the questions put to Doctor Fulbright caused him to usurp the function of the jury, because, in order to save the point, defendant must have objected to the questions, directing the trial court’s particular attention to the form of the questions, and giving as a reason for the objection that the questions called upon the expert to give a conclusion of fact and thus invade the province of the jury. It will be noted that the objection made was general, and in no .way calculated to call the — 453 — court’s attention to the error now alleged — “We object to that. He can state the facts just as he found them there.” It would seem that the person making this objection did not have in mind the point now insisted upon, namely, that the questions called for a conclusion of fact rather than an opinion of the expert. That such general objection is not sufficient to save the point is held in the cases of Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655; Roscoe v. Railway Co., 202 Mo. 576, 595, 101 S. W. 32; DeMaet v. Storage, P. and M. Co., 231 Mo. 615, 620, 132 S. W. 732; and Bragg v. Street Ry. Co., 192 Mo. 331, 342, 91 S. W. 527. We hold that the finding of the jury, so far as fastening negligence and liability on the defendant for the death of plaintiff’s husband is concerned, is based on sufficient evidence and proper instructions. The contention of appellant that negligence could not be laid at its door if its motorman merely made an error in judgment in thinking he could pass the wagon in safety is not well taken. . A similar contention was made in the case of Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469, where the court held that such error of judgment was no answer to the negligence. In view of the fact that the defendant in this case, as in that, had a clear view of the person injured in sufficient time and space to have so controlled the car as to have averted the accident, and failed to do so, it is liable. There is no evidence in this case that deceased moved from a place of safety to a place of danger shortly before the collision. [See, also, Flack v. Railroad, 162 Mo. App. 650, 659, 145 S. W. 110.] We will now discuss the instructions on the measure of damages. The defendant asked two instructions which erroneously confined the entire amount recoverable to compensatory damages. The court properly refused these instructions because a judgment under section 5425, Revised Statutes 1909, where lia — 454 — bility is established, necessarily involves some penalty. The measure of damages fixed by the instruction asked by the plaintiff and given we think erroneously allows a verdict as penalty for a greater sum than that authorized by the statute under the last ruling of the Supreme Court in the case of Boyd v. Railroad, 249 Mo. 110, 126, 155 S. W. 13. The plaintiff’s instruction, which was given, is as follows: “The court further instructs the jury that if under the other instructions you find for the plaintiff, you will return a verdict in her favor in such sum not less than two thousand dollars, and not exceeding ten thousand dollars, as in your discretion should be awarded to her and inflicted upon the defendant as a penalty for the death of her husband caused by the negligence of the defendant, if you find there was such negligence which caused such death, taking into consideration all the facts and circumstances in evidence before you.” It will be readily seen that this instruction permits the jury to inflict upon the defendant as a penalty a verdict for a sum not less than two thousand dollars and not exceeding ten thousand dollars, and the verdict returned and judgment rendered is for five thousand six hundred dollars. The history of the judicial construction of section 5425, Revised Statutes 1909, since it was amended in 1905 may be found by reading the cases of Young v. Railroad, 227 Mo. 307, 127 S. W. 19; Murphy v. Railroad, 228 Mo. 56, 128 S. W. 481; Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561; and Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13. The following language found in the opinion in the last Boyd case (249 Mo. 1. e. 126) induces us to believe that the penalty fixed by the statute cannot exceed two thousand dollars and that any amount recovered in excess of two thousand dollars is remedial and compensatory: “In other words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but the extent to which — 455 — a plaintiff may recover, if at all, in excess of $2000 under that section is remedial and compensatory. ’ ’ As the instruction in the case under consideration fixed the full amount of penalty at between two thousand dollars and ten thousand dollars, the verdict of five thousand six hundred dollars returned by the jury was manifestly erroneous. It will be noted that the instruction in the last Boyd case (page 120) permits a recovery of not less than two thousand dollars and not exceeding ten thousand dollars in the discretion of the jury, and advises them that in determining the amount to be allowed they may take into consideration the pecuniary loss, and may take into consideration the facts constituting the negligence on the part of the defendant, together with other evidence bearing entirely on the compensatory feature. Thfs instruction is .not expressly approved or criticised, because in that case the Supreme Court was discussing the admissibility of evidence; and the instruction is not in conflict in any way with the language of the court in summing up just what they do mean in construing the section under consideration. As stated, the language contained in the opinion in the last Boyd case (249 Mo. 1. c. 126) limits the penalty recoverable under section 5425 to two thousand dollars, and this is emphasized by thé separate concurring opinion of Graves, J., in that case (in which Fakes, J., concurred), wherein he holds in language unmistakable that the section is in no way penal as to any amount recoverable in excess of two thousand dollars. This question was incidentally before us in the case of Harshaw v. Railway Co., decided at the last term,-Mo. App.-, 159 S. W. 1, when the writer of this opinion stood alone in the pronouncement of the views herein expressed. Subsequently, however, the Kansas City Court of Appeals in the case .of Johnson v. Railway Co., -Mo. App. -, 160 S. W. 5, in discussing the same statute in connection with the decision in the last Boyd case announced the — 456 — same construction of the language of the Boyd case that we adhere to, and the St. Louis Court of Appeals in the case of Lasater v. Railway Co.,-Mo. App. ■-, 160 S. W. 818, with one of its members dissenting, held that the construction placed upon the statute by the decision in the last Boyd case in that no sum can be recovered in excess of two thousand dollars as a penalty. Thus strengthened in our belief by the course of our contemporaries, we hold that the instruction given in the case at bar is erroneous in that it fixes the amount of the penalty recoverable at a sum in excess of two thousand dollars. Being satisfied, however, that a cause of action to recover the penalty was established, we hold that the judgment is erroneous as to all in excess of two thousand dollars and it will be affirmed for that amount only. Unless, therefore, respondent within ten days shall file with the clerk of this court a written remittitur of all the judgment in excess of two thousand dollars, the judgment will be reversed and the cause remanded for a new trial. Robertson, P. J., concurs in a separate opinion. Sturgis, J., dissents, in part, in a separate opinion.