Erdmann v. United Railways Co. , 174 Mo. App. 245 ( 1913 )

REYNOLDS, P. J.

The petition in this case counts upon injuries alleged to have been sustained by plaintiff in consequence of a collision between two cars operated by defendant, one on its Cherokee line, the other on its Olive street line, in the city of St. Louis. The injuries alleged to have been sustained are bruises, contusions and abrasions upon the nose, arms and lower limbs, the left shoulder badly sprained, back sprained and wrenched, the left ear torn and lacerated, ovaries and kidneys torn, braised and lacerated and entire nervous system greatly shocked, it being alleged that her injuries are incurable and permanent. It is charged that by reason of her injuries plaintiff has been prevented from following her usual occupation as a saleslady of millinery and ladies ’ wearing apparel; that she has lost her earnings from that employment, to-wit, $15 a week from and after the 4th of June, 1910, and will continue to lose those earnings in the future; that she has paid large sums of money for medicine and medical treatment, in the amount of $100, has obligated herself to pay and will be compelled to pay large sums of money for medicines and medical treatment in the future, the amount unknown to plaintiff. Damages were prayed in the sum of $7500.

The answer was a general denial. The trial resulted in a verdict and judgment for plaintiff in the sum of $3750, from which, after filing a motion for new trial, defendant has duly perfected its appeal to this court.

The only errors assigned before us are two. The first is to the giving of an instruction as to the measure of damages, it being complained that this instruction fails to limit the amount of plaintiff’s recovery for medical attendance and medicines to the sum pleaded in her petition, to-wit, $100. In support of this assignment we are referred to Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363; Heinz v. United Railways Co., 143 Mo. App. 38, 122 S. W. 346; Shinn v. United Railways Co., 146 Mo. App. 718, 125 S. W. 782; Tinkle v. St. Louis & S. F. R. Co., 212 Mo. 445, 110 S. W. 1086; Radtke v. St. Louis Basket & Box Co., 229 Mo. 1, 129 S. W. 508, and Walters v. United Railways Co., 165 Mo. App. 628, 147 S. W. 1098. It is true that the instruction complained of did not limit the amount of recovery for medical attendance and medicine to the sum pleaded, to-wit, $100, and that these cases seem to hold that this was error. But in the recent case of Shinn v. United Railways Co., not yet officially reported but see 154 S. W. 103, where the same point was made on the instructions and in which the majority of our court held in the same case (146 Mo. App. 718) that the instruction should have limited •the recovery for medical attendance to the amount claimed, our Supreme Court has disapproved of that, holding that it was unnecessary, in the instructions, to place a limit upon each specific item of damage alleged to have been sustained. On the authority of that decision this assignment of error must be overruled.

The second and remaining assignment of error is to the exclusion of competent, material and relevant testimony, as it is said, offered by defendant. In the cross-examination of plaintiff, counsel for defendant undertook to have her testify as to the information upon which she relied when she advised her counsel of the injuries which she alleged she had sustained, or, as the question was interpreted by the court, counsel for defendant undertook to ask plaintiff what statement she had made to her counsel as to that matter. This was objected to as privileged communication between attorney and client and as immaterial. After some discussion between court and counsel the court ruled that the question was improper in the form asked. To this counsel excepted. Plaintiff was then asked by counsel for defendant if, at the time she went to see her attorney and gave him the facts on which he drew up the petition which he filed, she knew she was suffering from the injuries which she had testified to in the suit. This was objected to as immaterial and objection overruled. Witness answered that she did. She was then asked if she knew what her injuries were at that time. She answered that “of course” she did. She further stated that when she called on her attorney "to give him the facts in the case thát he might draw up her petition, she had told him what was the'matter with her. She further said that at that-time she had not seen one of the physicians who after-wards attended her. She- had seen another physician who, it appears, testified that he was unable to find anything more serious than bruises. Hence it is argued by counsel for appellant that it became a very interesting and pertinent question as to in what manner plaintiff learned that her ovaries and kidneys were torn, bruised and lacerated, and was able to advise her counsel thereof before she had been told by one of her physicians who had testified to her injuries. It is claimed that this went to the credibility of the witness. We do not think this objection tenable. The only objection sustained was as to the form of the question. That ruling was correct. Following that, counsel for defendant was allowed practically to go into the matter with the plaintiff, so that we are unable to see the force of the argument now made. So far as concerns the credibility of the plaintiff as a witness, that was for the jury. This witness and the physicians testified as to the injuries. Whether plaintiff knew of their extent when she brought her action, or was acting on her own knowledge or on information given by her physicians when she consulted counsel was entirely immaterial.

There was testimony tending to sustain the allegations of the petition, the case was one for the jury under proper instructions, no complaint of any instruction save the one referred to as to damages is made, and we find no reversible error.

The judgment of the circuit court is affirmed.

Nortoni and Allen, JJ., concur.