Torreyson v. United Railways Co.

CAULFIELD, J. (after stating the facts). — I. The court committed no error in permitting one physician to testify that in his opinion plaintiff suffered from what he would call “a traumatic neuritis” and in permitting another physician to state that in his opinion “she is suffering from a nervous condition due to an injury — bodily injury, which is usually classed as traumatic neurosis.” These were nothing' more than statements as to the nature and character of plaintiff’s ailment, without suggesting the particular cause, and therefore were competent. See Jerome v. United Railways Co., 155 Mo. App. 202, 134 S. W. 107, for a full and pertinent discussion as to. the competency of such testimony. II. Likewise the court committed no error in overruling the objections on the ground of immateriality to the questions propounded to witnesses Dix and Rogers as to plaintiff taking care of her father, mother and aunt, and as to what she did for her father and aunt during their last sicknesses. These inquiries had some bearing on the question of what was the physical ability of the plaintiff before her injury and we think were good against a mere general objection. III. As to the remarks of counsel, we are of the opinion that whatever prejudice might have resulted from the language first complained of, it was sufficiently met and cured by the admonition of the trial court. As to the next remark we find that defendant’s counsel stated “I except to that statement. There is no evidence of that in this case,” meaning that he objected to the statement. But it does not appear that defendant’s counsel saved any exception to the ruling of the court thereon. He merely remarked “I submit. [376] that the court should rebuke counsel for making that remark.” In the next two instances we find counsel for the defendant at the end of what appears to he •a series of statements saying, “I except to that,” and “I except to that statement,” without attempting to point out what particular statement he objected to and without in any wise indicating on what ground he based his objection. By failing to preserve an exception to the action of the trial court in overruling an objection to remarks of counsel or in failing to administer a reprimand, a party will he regarded as having waived his objection in that behalf (State v. Thurman, 121 Mo. App. 374, 98 S. W. 819; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967); and an objection is insufficient which does not point out the specific statement complained of and does not call the attention of the trial court to the specific grounds upon which it is based. [State v. Phillips, 233 Mo. 299, 135 S. W. 4; State v. Ruck, 194 Mo. 416, 92 S. W. 706.] We are, therefore, not inclined to consider the assignment of error which is aimed at the alleged improper remarks. IY. At the instance of the plaintiff the court gave to the jury an instruction on the measure of damages as follows: “If you find for the plaintiff in estimating and determining the amount of her damages you should take into consideration in connection with all the facts and circumstances in evidence such reasonable sums, if any, as you believe she necessarily paid out, or became obligated for, because of medical treatment and hospital charges on account of her injuries; the bodily pa.in and suffering and mental anguish endured by her, resulting from the injuries received; the character and extent of her injuries and whether they are permanent in their nature; the extent, if any, which she has been prevented and disabled by reason of such [377] injuries from working and earning a livelihood; and if from the evidence you believe and find that her injuries are reasonably certain to cause her pain and anguish in the future and reasonably certain to impair or lessen her ability to work or labor in the future, you should take said facts into consideration also; and if you find for plaintiff you should find for her in such sum as in your judgment under all the evidence in the case will reasonably compensate-her for the injuries received, but not to exceed the-sum named in the petition, to-wit: thirty-five thousand dollars.” Defendant contends that this instruction was erroneous because it assumes that the plaintiff was injured and also assumes that she had endured bodily pain and suffering and mental anguish. Instructions substantially like this one were discussed and held good against a like criticism in Klutts v. The St. Louis, Iron Mt. & So. Ry. Co., 75 Mo. 642; McCarthy v. St. Louis Transit Co., 108 Mo. App. 317, 83 S. W. 298; Gayle v. Missouri Car & Fdy. Co., 177 Mo. 427, 453, 76 S. W. 987. These cases proceed on the theory that by giving such an instruction the court does not assume or declare that the plaintiff had been injured or suffered bodily pain, etc. Substantially like instructions were also approved without. comment in Prewitt v. M., K. & T. Ry. Co., 134 Mo. 615, 36 S. W. 667; Cobb v. Railroad, 149 Mo. 135, 50 S. W. 310. Under those authorities we conclude that the giving' of this instruction was not reversible error. That conclusion may also be upheld on another ground which finds support in the authorities! It is certain at least that the fact of the plaintiff being bruised and injured and the extent of her injuries were not assumed, for this instruction is addressed to the jury only in the event that they find for the plaintiff, and other instructions given make such a finding conditional upon the jury finding that plaintiff had been [378] bruised and injured, and state that the burden of proving her injuries and the extent of such injuries was upon the plaintiff. The jury must have understood that the fact of plaintiff having been injured and the extent of her injuries was for them to find from the evidence. At the most, then, it might be said that by the instruction the court assumed that if the plaintiff was bruised and injured as the evidence tended to show she was then she must have eildured some bodily pain and suffering and mental anguish. It was not error to indulge such an assumption, for pain and anguish must necessarily have followed such bruising and injury. [Dunn v. Electric Ry. Co., 81 Mo. App. 42.] But in York v. Everton, 121 Mo. App. 640, 645, 97 S. W. 604, and in Glover v. Railroad, 129 Mo. App. 563, 575, 108 S. W. 105, the Kansas City Court of Appeals has decided that the giving of such an instruction is reversible error, and we deem such decision contrary to our decision herein. The judgment is affirmed, but on account of this decision being, as aforesaid, contrary to the above mentioned previous decisions of the Kansas City Court of Appeals, this cause will be certified and transferred to the Supreme Court in accordance with the requirement of the Cohstitution of our state. It is so ordered. Reynolds, P. J., and Nortoni, J., concur.