Herndon v. City of Springfield

REYNOLDS, P. J. (after stating the facts.) — The case was submitted to the jury on proper instructions and every request preferred by defendant, of which there were six, was granted. It is only necessary to notice one or two of the points most strongly urged against the instructions. .The jury were told that even though they believed plaintiff had tuberculosis or rheumatism in her right knee or in her system generally, or had a latent .disease in her system, yet if they believed from the evidence she was injured in the manner described, that is to say, by a fall due to defendant’s negligence, then defendant was responsible for the effects which naturally and necessarily followed the injury, if any, in the condition of health plaintiff was in, or in which her knee was at the time; and it was no defense that the knee was rendered more difficult to cure by reason of plaintiff’s state of health; or that by reason of latent disease in her system her injuries were rendered more serious than they would have been if she had been in robust health. Several objections to that instruction are brought forward, but they all go to the proposition that it was outside the — 520 — evidence in the case. It is true plaintiff testified she was in sound health prior to the accident, but the instruction does not transcend the evidence, because much testimony was introduced by the City to prove she had rheumatism. It is said there was no evidence she had tuberculosis or any other latent disease except rheumatism, and that the instruction permitted the jury to speculate on her condition, and find she did have some other latent disease which was aggravated by the fall and resulted in a stiffened knee. This contention is hypercritical. The physicians testified tuberculosis or some other latent septic condition of the system might bring about anchylosis; and they testified, too, that if plaintiff had such a latent impairment of health, the fall in conjunction with it, might have led to anchylosis of the knee joint. The only specific disease the city attempted to prove plaintiff had was rheumatism; and hence the testimony of the physicians as to the possible cause of the anchylosis might have been confined to the question of whether rheumatism, or such a fall as plaintiff experienced, would produce it. But the expert testimony took a wider range, and in expounding the possible causes of anchylosis, the physicians mentioned tubercular and other septic conditions. Some testimony, and particularly that of plaintiff’s mother, indicated that she never had been in robust health. Hence the instruction in question was with- ■ in the pale of the evidence, and was a correct statement of the law; for though plaintiff’s constitution may have had some pernicious but latent taint which the fall aggravated, thereby setting up a process of disease that developed into her present state, the city is answerable for the stiff knee, if the fall was due to its fault. [Neff v. Kansas City, 213 Mo. 350, 111 S. W. 1139.] In the third paragraph of the instruction on the measure of damages, the court told the jury they might allow plaintiff the reasonable value of medical aid and attention which had been or might thereafter be rendered to her on account of her said injury. This charge was — 521 — within the averments of the petition that plaintiff had “paid and obligated herself to pay and. will be compelled to pay in the future, large sums of money for medicine and medical and surgical services.” Counsel for the city say it was outside the evidence, as there was no testimony plaintiff had bound herself to pay for past medical services, or that she would require medical or surgical attention in the future. Plaintiff was waited on by three physicians and the value of the services of only one of. them was proved. The evidence does not show payment nor an express contract to pay either of the physicians. But it is correctly argued for plaintiff, that the law will imply an obligation to pay because the services were rendered, citing Gorham v. Railroad, 113 Mo. 408. It is also true that the implied obligation is, to pay only the reasonable value of the services. What this was remained unproved, except as to one of the three physicians who attended plaintiff, and he was not the one who attended her most frequently. Nevertheless in view of the enormous compulsory, remission from the amount of the verdict, we will not hold this to be reversible error. It is further said the court had no power to order plaintiff to remit part of the verdict because it was so excessive as to show such passion and prejudice on the part of the jury, as precluded a fair trial of the main issues. We do not agree to this view, nor do we suppose that the trial judge ordered a remittitur because he thought it the result of prejudice and passion. If he had, he would probably have set aside the verdict entirely. In our opinion the verdict was reasonable, provided the city is to be held liable for plaintiff’s condition. We might be inclined to criticise thé action of the . court in requiring any remittitur to be made on the facts in the case. This is the second trial before a jury, the first one, as before remarked, resulting in a verdict in her favor for $4,000. On the allegation of newly-dis — 522 — covered evidence on the part of defendant, this was set aside and a new trial granted. This new trial resulted, as we have observed, in a verdict in her favor for $5,825, and the court, as the price of avoiding a new trial, required plaintiff to remit $2,825 of this amount. We are aware of the thoroughly established right in our State of the trial judge to control the amount of verdicts in these damage cases when, in their opinion, they are excessive, the Supreme Court itself even exercising this power in cases before it. But it seems to us in this case, where a person has been injured as seriously as this plaintiff, where she, a young woman between twenty-five and thirty years of age, is practically a helpless cripple for the rest of her life, if she was entitled to recover at all, the amount that the jury awarded her’ was not ex cessive. We cannot, however, interfere with that on this record, and in the position that the plaintiff herself, practically under coercion of the court, is in. That is to say she chose to accept a judgment for a lesser amount rather than incur the delay, expense and hazard of a new trial. That was her matter, and having elected to do so, of course she must abide by it. We do not hesitate to say, however, that the fact that the plaintiff’s claim, as presented to us in the record, appears to us to be a very meritorious one, has had a very controlling influence with us in arriving at the determination which we have reached in the case. The jury might well find from the evidence plaintiff had been strong and healthy previously, that her weight had diminished from 156 to 119 pounds, that she was confined to the house for eight months and to her bed most of the time, suffered excruciating pain for a long time and still suffered, .that she was a helpless and deformed cripple, and that all those consequences flowed -from a fall due to the negligence of the city. We find no proof in the size of the verdict as returned, of passion or prejudice on the part of the jury, and as before said, cannot interfere on this record with the action of the court below, in ordering a remittitur as — 523 — the condition on which a new trial would he refused. [Chitty v. Railroad, 148 Mo. 64.] We granted a motion for rehearing solely upon the doubt we had as to but one point in it, that doubt arising over the remark of the trial judge, made in overruling the objection to testimony. We held, on the authority of Thompson v. Ish, 99 Mo. 160, that this remark, while improper, was not reversible error. This point has been elaborately argued, both orally and by brief, and we now see no occasion, on full consideration, to alter the decision which we before reached in the case. We concede that the remark was an improper one, undoubtedly made by the very learned and experienced trial judge in the heat and hurry of the trial; but the question we are charged with determining is, whether, by reason of it, plaintiff should lose her verdict. A physician called by defendant as a witness, had been examined in chief, and turned over to the plaintiff’s counsel for cross-examination. That counsel asked him if it is not true that anchylosis is first caused by inflammation, and that anything that will produce a severe inflammation about the joint, might result in anchylosis, and that it might be the exciting cause that would finally result, with or without other aiding causes, in anchylosis. He answered all these in the affirmative. Counsel for plaintiff then asked him this question: “And there might be a slight injury or bruise of the knee which would cause inflammation, severe swelling, that might excite other causes and cause anchylosis, might it not?” Whereupon counsel for defendant interposed an objection to the question, “for the reason that the testimony is based upon the theory that this plaintiff weighed 1.56 pounds, was in sound health and limbs on the morning of this alleged accident and had been prior thereto.” The court then made the remark which is the bone of this contention: “I am not strong on expert testimony, as you all know, and I don’t believe in broadening its scope, but I will permit the question to be asked.” De — 524 — fendant duly excepted to tlie remark and to the overruling of the objection, and the question was answered by the witness at some length. It will be noticed that plaintiff in no way contributed to this alleged error — in no way invoked it. On the contrary, her counsel was examining the witness on the presumption, as a fact proven in the case, that he was qualified to answer as an expert. Counsel for defendant were the objectors. While overruling the objection, the court clearly indicated by this remark, that he did not intend thereby to let in a long and confusing technical line of testimony. At the instance of defendant the court gave the usual and approved instructions as to the credibility of ■witnesses — that is, that the jury are the sole judges of the credibility of the witnesses, of the weight of evidence and its' relation to all facts — that it was their right to determine from the appearance and demeanor of witnesses on the stand which of them are more worthy of credibility and to give weight accordingly. The giving of this instruction was the deliberate direction of the judge to the jury, and was his final word to them on the weight of the credibility of the witnesses and the weight to be given to their testimony. We have a right to assume that, as intelligent men, they so understood it, and that if any wrong impression had been given by his casual remark, that this was removed by the court’s final direction to them. In the case of Thompson v. Ish, 99 Mo. 160, the trial was before a jury in a contest over a will, the issues being as to undue influence and whether the testatrix was of sound and disposing mind when she executed the will. The deposition of a physician was introduced by the defendant, the physician testifying he had remained at the residence of the deceased all night three or four days after the date of the will and it was his opinion the deceased was then perfectly sound mentally. Before offering the deposition, the defendants offered to prove — 525 — the reputation and standing of this physician. The trial judge held that to be unnecessary, saying that the witness’ character and standing as an eminent physician, were part of the history of Missouri, and if courts and juries took notice of the facts of history, the evidence was immaterial. The Supreme Court condemned this remark as improper, but held it was not reversible error. In the Ish case the remark added to the weight of the particular expert’s testimony. In this case, the remark under review, it is claimed, tended to weaken the effect of all the expert testimony in the present case, including that of one doctor who had testified for plaintiff and of three who had testified for the defense. If strengthening testimony by such a remark is not reversibe error, we are unable to see why weakening testimony by the opposite kind of a remark should be. The latest case to which counsel for defendant call our attention, as in any way bearing upon this proposition, is that of Neff v. City of Cameron, 213 Mo. 350, l. c. 369. It is true that in that case the judge who wrote the opinion condemned remarks of counsel, which had gone unrebuked by the trial court, on the ground that they put into the jury’s mind the personal view of the court, to weigh down the scales of justice, meaning, of course, that the personal view of the court was not to be brought to bear on the jury. That is a very different case from the one at bar; no such thing occurred here: no attempt, so far as appears in the record, was made by counsel on either side to urge the personal views of the court on the jury, and the remarks of the court in the case at bar had, considering the connection in which they were used, no such tendency as had the use made of them by counsel in the Neff case. The remarks of the trial judge in State v. Musick, 101 Mo. 260, l. c. 273, strike us as far more objectionable than those made in this case or in the Ish case. But their utterance was held not reversible error. The same may be said as to State v. Duestrow, 137 Mo. 45, l. c. — 526 — 87, and with much more force as to the remarks of the trial judge in State v. Findley, 101 Mo. 217, l. c. 224. These were all criminal cases — -where human life and liberty were at stake. In none of them were the remarks held reversible error. We adhere to our previous ruling and affirm the judgment of the trial court. All concur.