Jablonowski v. Modern Cap Manufacturing Co. ( 1925 )

This case was first heard in Division One and an opinion prepared by one of our Commissioners. His statement of the facts and such of his conclusions of law as met with the concurrence of the majority of the Court en Banc follow:

"Action to recover damages for alleged personal injuries. Respondent, on August 6, 1919, the date of her alleged injury, was an employee of appellant in its cap factory in St. Louis. She was employed as a `cap-sizer,' her work being to sew the right sizes in the caps. This work was done on a sewing machine, placed with other sewing machines on top of a work table at which fourteen girl operators worked, seven on each side of the table. There were four of these tables in the factory, two tables on each side of a center or main aisle and passageway, some five or six feet wide. Working about these tables in the factory were some forty people, both girls and men, but the machine operators were girls. The sewing machines were operated automatically by means of electric motors connected with the sewing machines by power rods and belts. The power rods ran beneath the tables about ten to twelve inches above the floor. The operators sat upon chairs on both sides of the tables directly in front of the sewing machines. In order to prevent the skirts or clothing of the operators from becoming entangled in the power rods and belting, skirt or shield boards were placed lengthwise on both sides of the tables, the ends of the shield boards fitting or slipping into slots or grooves molded in the iron standards of the tables to keep the boards in position. The shield boards, when in place, were at the feet of the operators and the lower edges some six or eight inches above the floor. They were approximately the same length as the tables. On the opposite side of the floor of the factory from that occupied by the sewing machine tables was a trimming room, denominated by the employees as the `cage.' When the operators finished their work, they carried the caps in large bundles from the machines to the `cage,' where they were left and a new allotment of material to be worked upon was obtained from the person in charge of the `cage.' Respondent worked at or near the south end of a table in the southwest corner of the floor. She completed the work assigned to her a few minutes before noon of the day in question and started to carry her finished work, about fifteen or eighteen dozen caps, weighing between twenty and twenty-five pounds, in her arms to the `cage,' or finishing room, on the opposite side of the floor. Respondent testified that she walked around the south end of the table to the main or center aisle, and as she reached a point in the aisle about opposite her machine and immediately behind the chair of the operator directly across the table from her, she tripped on a shield board lying across the center of the main aisle, and fell, striking her right knee on the edge of the board and her right hand upon the floor. She was assisted to her feet by another girl operator and, becoming nauseated, went to the rest room, where she examined her knee and found it to be red and `the skin was all rubbed.' After lunch, she attempted to resume work, but, after working twenty minutes, her knee became painful and started to swell, causing her to leave her work and return home. Respondent had been in appellant's employ for about six months. She testified that it was customary for her and the other operators to use the main aisle in carrying their completed work to the finishing room; that the bundle of caps which she was carrying at the time extended from her waist-line as high as her chin, so that she could not see the shield board and did not know it was lying across the aisle at the time; that `this board came from underneath the machine on the east side. The board was underneath the first machine from the Washington Avenue side. I seen Mr. Novoson (president and manager of appellant corporation) at that machine quite often, but I seen him the night before I fell. He was fixing the motor on the back there, on the left side. The motor was on the Washington Avenue side, on the south side. I did not see Mr. Novoson do anything with this board at any time, only when he was fixing the motor he had to take it out. It was quitting time 5:30, the night before; my attention was attracted to him because the motor during the day was sparkling and it was making noise. I was going home. I just says, "Good night" to Mr. Novoson. I saw the board that night; it was either behind or alongside. I couldn't exactly tell you. His feet were out in the aisle. His head and hands were underneath the machine, underneath the table, and I saw the board in about where his feet were, somewhere along there. This accident happened a quarter to twelve the next day. I did not use that aisle that day before I was hurt. I used the west aisle, that is, the aisle up along the Tenth Street side. Before that, I had seen the board out of this machine either three weeks before or two weeks before I fell. It was in the same aisle, in the main aisle; about twice a week or three times a week he had to fix it.'

"Respondent claims to have gone to the office of her physician for treatment of her knee every day or every other day for a period of about two weeks after the date of her injury, walking to his office and back home. The doctor's office was about a block, or perhaps two blocks, from her home. Thereafter her physician called at her home, where she was confined for a period of four or five weeks. On October 14, 1919, an X-ray photograph of her knee was taken, after which her knee was bandaged and bound with adhesive tape for a considerable period of time and she was still under the care and treatment of her physician at the time of the trial in November, 1920 Respondent complained of nervousness, insomnia, loss of appetite and pain in and about her knee and walked with the aid of a cane. Another X-ray photograph was taken on April 20, 1920.

"Two girl operators employed in the factory testified to having seen a shield board lying across the main aisle at times previous to the day of respondent's alleged injury. Another operator, Beatrice Hart, testified that she was sitting at her machine at the time respondent fell; she didn't see, but heard, her fall, and witness turned around in her chair and respondent was on the floor back of witness's chair; the shield board was lying in the aisle back of the chair. She testified: `I noticed the shield board; it didn't fit in there; the table sat on some iron legs and on those legs they had little slot places where the shield board was supposed to fit in, but the shield board was a little too short, and it didn't fit them; it always hung on this end, and the other end was always on the floor. It was always on the floor; it never fit in there. The shield board was lying in the aisle. It would fall out of there and get into the aisle. I noticed it several times in the aisle, but not every day I didn't see it there, but a number of times. It was lying around on the floor for two or three weeks before the plaintiff fell, before the accident, out in the aisle and under the machine. . . . I came in contact with one of these shield boards myself just a few days before Miss Stella fell; the shield board was lying there in the middle aisle, and I stumbled over it myself: I didn't fall, but I stumbled over the board.' Witness viewed respondent's knee after lunch and said, `It was just turning a little red: I said it looked red and blue; it was turning blue.'

"A.J. Novoson testified that he was president, general superintendent and manager of appellant corporation and denied having worked on the motor referred to by respondent on the day before the mishap or for several days before that time; denied there were any shield boards in the aisle and said neither respondent nor Miss Hart had ever complained to him about any board lying in the center aisle; that he never saw a shield board that was too short, or one that would not fit: that the shield boards will not slip out of place unless some one pulls them out: that appellant's porter swept the aisles every afternoon and evening and, if anything happened respecting a shield board, the employees `would always call the porter or somebody to put it in: they wouldn't come to me.'

"Appellant's porter testified that he swept the floor once a day in the afternoon, beginning about 3:30 o'clock and requiring about two hours to finish the sweeping; that he never saw any shield boards lying around in the aisles, nor did he leave them there; he was not sure that he was working on August 5, 1919, the day before respondent fell, but supposed he was.

"There was a sharp conflict in the medical testimony respecting whether respondent suffered any real or substantial injury to her knee. Respondent's physician testified that, when first attending her, he found a bad contusion, a bruised condition of the entire surface of the knee; that subsequently the knee became inflamed and respondent complained of such severe pain in her knee that, suspecting further trouble, he had an X-ray plate taken on October 14, which disclosed a fracture of the inner articular surface of the condyle of the knee pan, which caused an inflammatory condition of the knee; that such a fracture causes an exudation of synovial fluid in the knee joint and an inflammation of the synovial membrance, known as synovitis, which is naturally followed by an osseous or bony growth of a callous nature, the effect of which is a permanent disability to the normal functioning of the knee joint. The physician testified he always found respondent walking with a cane, complaining of pain in the knee joint; he also found some swelling at times and observed that respondent walked with a limp.

"The X-ray specialist who photographed the knee testified that he had not examined respondent as a surgeon, but that the photographic plates show a partial fracture of the articular surfaces of the femur; a roughening of the articular surface at the knee joint, which causes an inflammatory condition and irritation. Witness believed `there is a certain amount of permanent injury' to the knee.

"Three physicians testified for appellant, two of them having been appointed by the trial court to make an examination of respondent. All three testified that there was no permanent injury to the knee; that they could find no fracture or similar abnormality about the knee that would cause respondent pain or to limp, although they all admitted that the X-ray plates in evidence showed a slight irregularity or roughening of the internal condyle.

"The petition charged appellant with negligence in these respects: First, in negligently permitting said shield board to be or remain in said aisle or passageway provided for the use of employees in the factory; second, in negligently failing to keep said aisle clear and free from obstructions to the free and safe use of same by defendant's employees; third, in failing to use reasonable care in keeping said shield board safely and securely fastened to the sewing machine table, thereby negligently allowing it to become loose and get out of its proper place and into said aisle; fourth, in removing said board and placing same in the aisle or passageway used by employees and in failing to replace same in its proper position in said table; and fifth, in negligently failing to exercise ordinary care to provide plaintiff with a reasonably safe place to work. The third charge of negligence, however, was withdrawn from the jury by the trial court, because that charge was not supported by the evidence.

"The answer was a general denial, with the further plea that respondent's injuries, if any, were caused by her contributory negligence in that `if, on the occasion mentioned in said petition, the shield board was in the aisle or passageway therein mentioned, said shield board was plainly visible and obvious to plaintiff, and the location and position of said shield board was known to plaintiff, or by the exercise of ordinary care on her part would have been known to her; but defendant avers that, on and prior to said occasion, plaintiff negligently failed and omitted to look where she was walking or stepping, negligently failed and omitted to guard her footsteps, and negligently caused and permitted one of her feet to come in contact with said shield board.'

"The reply was a general denial of the new matter of the answer.

"The trial resulted in a verdict and judgment for plaintiff for $5,000. Defendant appealed to the St. Louis Court of Appeals, where the judgment below was affirmed (251 S.W. 477), but that court, deeming its decision to be contrary to the decision of the Kansas City Court of Appeals in Simmons v. Murray,209 Mo. App. 248, certified the cause to this court for final adjudication.

"I. Appellant assigns error in the giving of plaintiff's instruction numbered 1, which charged the jury on plaintiff's theory of recovery. That instruction authorized a verdict and finding for plaintiff if the jury found andWhat Acts believed, among other essential facts, `that theConstitute defendant, or its agents, placed said board on theNegligence. floor of said aisle, and negligently failed to remove same from the floor of said aisle.' It is urged by appellant that said instruction fails to state what facts constitute a negligent failure to remove the board from the floor of the aisle, but left it to the jury to determine what constitutes negligence in failing to remove said board from the aisle. This instruction must be read in connection with plaintiff's given instruction numbered 7, as follows: `The word "negligence" or "negligently" as used in these instructions, means the failure to use ordinary care, and the term "ordinary care" means such care and diligence as a reasonably prudent person would use under the same or similar circumstances.' Plaintiff's Instruction 1 further required the jury to find and believe that plaintiff tripped over a shield board and fell to the floor and was injured; that said board was lying on the floor of an aisle or passageway in defendant's factory, provided by defendant and in common use by its employees in the performance of their duties; and that such aisle or passageway, with said board lying in same, if they so found, was not reasonably safe for the use of defendant's employees in the performance of their duties. We think the instruction, in its entirely, contained the essential elements of the specific charges of negligence alleged in plaintiff's petition and was supported by the evidence, and, when read in connection with plaintiff's instruction numbered 7, defining the terms `negligently' and `ordinary care,' it is not subject to the criticism which appellant makes against it.

"Appellant says the instruction is bad for a further reason, i.e., it authorized recovery by plaintiff if the jury believed that any agent of defendant placed said board in the aisle and negligently failed to remove it, without requiring the jury to find that defendant knew, or by the exercise ofAct of ordinary care could have known, that said board wasDefendant in said aisle in time, by exercise of ordinary care,or Agents: to have removed it before plaintiff was injured.Knowledge. Appellant argues that the jury might have held it liable under this instruction, if they believed that a porter, bundle boy, stenographer or other mere employee had placed the board in the aisle, notwithstanding the jury might also have believed that the board had been placed in the aisle so shortly before the alleged injury that the defendant itself had neither knowledge thereof nor reasonable time to remove it. The proof, however, tends to show that Mr. Novoson, president and general manager of appellant corporation, and who was, of course its alter ego, and hence, its vice-principal and agent, had removed the shield board on the night before respondent's alleged injury while working upon the motor, and had then placed it in the aisle. At least, there is no evidence that any other agent or employee had placed the shield board in the aisle. If the jury believed that Novoson, the alter ego and vice-principal of appellant, placed the board in the aisle (which it might well have done under the evidence), then his act was the act of defendant and it had actual knowledge thereof. A somewhat similar instruction was under consideration in Stratton v. Nafziger Baking Co., 237 S.W. (Mo. App.) 538, reading, `if you believe from the evidence that defendant, by and through itsagents, knew that said floor and ceiling was in imminent danger of falling,' etc. It was claimed the instruction was bad because it declared, or assumed, that the knowledge of the `agents' is the knowledge of the master, without reference to the capacity of the agents' employment. It was there held that, inasmuch as the evidence was uncontradicted that defendant's manager or vice-principal knew and appreciated the danger, defendant's knowledge at the time might well have been left out of the instruction, for knowledge of the vice-principal was necessarily the knowledge of the master. But the instruction in this case goes further and reads `or, if you find defendant or its agents negligently permitted said board to be or remain in said aisle after the defendant or its agents saw, or by the exercise of reasonable care and diligence, could have seen or discovered the said board in said aisle in time to have removed it before the plaintiff was tripped by same and injured, if you so find, and that either of such acts of negligence, if any, was the cause of plaintiff being injured, if you so find,' etc. We think the question of defendant's knowledge of the shield board in the aisle and its opportunity to have removed it were properly submitted by plaintiff's instruction numbered 1, and the assignment is ruled against appellant.

"II. Appellant assigns error in the giving of plaintiff's instruction numbered 2, as follows: `You are instructed that it was the defendant's duty to use ordinary care and diligence to discover and remove unsafe or dangerous obstructions, if any, in the aisles and passageways provided for use of itsUnsafe Place: employees in performing their work, and that theNegligent plaintiff was not required to look forUse. obstructions in such aisles before using same, but was only required to use the ordinary care that a reasonably prudent person would use in the same or a similar situation in walking in said aisles.' Appellant contends that the exercise of ordinary care on respondent's part in law required her to use her sense of sight and to look for obstructions in the aisles, especially in view of the fact that she testified to having seen the shield board in the aisle on occasions before the day she tripped and fell. Hence, it is contended that plaintiff's Instruction 2, in telling the jury that plaintiff was not required to look for obstructions in the aisles before using them, eliminated a necessary element of ordinary care on her part and thereby required of plaintiff the use of a lesser degree of care than ordinary care.

"The trial court, of its own motion, gave Instruction 5, reading: `It is the law that where the negligence of both plaintiff and defendant directly contribute to an injury to plaintiff, the jury should return a verdict for defendant. The plaintiff in this case had the right, in the absence of knowledge to the contrary, to assume that the aisle through which she was carrying a bundle of caps was safe and free from dangerous obstructions, yet she was in duty bound to see what was plainly visible to her eyes. If, therefore, you find from the evidence that plaintiff stumbled and fell over a board on the floor of said aisle and was injured, and if you further find that the location of the board on the floor was known to plaintiff, or that said board was in plain sight, and that she either saw it in time to have prevented her fall, or would have so seen it if she used her eyes as an ordinarily prudent person would do under the same circumstances, then she was negligent, and if such negligence on her part directly contributed to her injury, she cannot recover, even if you find that the defendant was also negligent in permitting the board to be or remain upon the floor.'

"When the two instructions are read together, we think they are not confusing, but correctly declare the rule of law, heretofore announced by this court, that, where the risk or danger is so plainly obvious or apparent to the servant that an ordinarily prudent person under the same or similar circumstances would have seen and appreciated the danger of injury, then the servant is guilty of contributory negligence, or, under certain circumstances, assumes the risk of injury. [Conroy v. Vulcan Iron Works, 62 Mo. l.c. 39; Thorpe v. Railway Co., 89 Mo. 650; Williams v. Pryor, 272 Mo. 613.] When, in plaintiff's instruction numbered 2, the trial court charged the jury that it was defendant's duty to sue ordinary care to discover and remove unsafe or dangerous obstructions, if any, in the aisles provided for the use of its employees, it was tantamount to telling the jury that it was the master's duty to furnish and provide the servant with a reasonably safe place in which to work. The master is always held to the faithful performance of that duty, which is non-delegable. [Williams v. Pryor, supra.] We think the Court of Appeals was right when it said in its opinion in the instant case (251 S.W. l.c. 482): `These instructions, when read together, announce the well-settled rule that an employee is not required to anticipate negligence of the master, but has the right to assume that the master has performed his duty to the servant until the contrary appears to the servant while in the exercise of ordinary care.' The evidence in the record before us is well-nigh conclusive that plaintiff did not see the board and could not have seen it because of the bundle of caps she was carrying, which extended from her waist to her chin. The board was lying in the aisle, almost, if not precisely, at the extreme south end of the table, and the evidence is to the effect that plaintiff stumbled over it immediately upon passing around the end of the table while her vision of the floor was obscured by the bundle of caps she was carrying. As remarked by the Court of Appeals in its opinion, supra, plaintiff could only have discovered the danger and presence of the board by laying down the bundle of caps or by first making an inspection of the aisle before carrying the bundle to the trimming room. The law does not place that onerous a duty upon her, but only required of her that degree of care which an ordinarily prudent person would have used under the same circumstances. We see no reversible error in the giving of plaintiff's Instruction Number 2, and that assignment is ruled against appellant.

"III. Appellant complains of the giving of plaintiff's instruction numbered 12 on the measure of damages, which reads: `If you find for the plaintiff, you will, in assessing her damages, take into consideration the physicalMeasure of condition of the plaintiff immediately before andDamages: since receiving the injuries on account of whichReasonable she sues, and the extent of the plaintiff'sCompensation. injuries, so far as you find they have been shown by the evidence; the physical pain and mental anguish suffered by the plaintiff at the time and since her injuries, if any, as shown by the evidence; the physical pain and mental anguish you believe from the evidence the plaintiff will suffer in the future, in consequence of her injuries, if any; her loss of earnings, if any, in consequence of her injuries, to the date of filing her amended petition on May 10, 1920, at a rate not to exceed $18 a week, and not exceeding the sum of $792; any earnings, in consequence of her injuries, which you find she has lost since May 10, 1920, and any loss of earnings which you believe from the evidence she will reasonably lose in the future in consequence of her injuries, if any; and if you further find the plaintiff has incurred indebtedness for medical services and medicines in the treatment of her injuries, if any, you should award her such sum for same as you find plaintiff has reasonably incurred, not exceeding $300.' It is urged that this instruction does not require the jury to award such damages as will reasonably compensate the plaintiff for her alleged injuries, and, therefore, it places no limit on the amount of damages the jury may find; in other words, that the jury were not given any legal guide or rule to follow in assessing plaintiff's damages. Appellant bottoms its contention upon the decision of the Kansas City Court of Appeals in Simmons v. Murray,209 Mo. App. 248, and it is because of alleged conflict with that decision that the St. Louis Court of Appeals certified this cause to this court for our ruling and adjudication. In the Simmons case the instruction read: `The court instructs the jury that if you find the issues for the plaintiff under the evidence and the instructions of the court, you may in assessing plaintiff's damages, if any, take into consideration the physical pain and mental anguish, if any, which you believe and find from the evidence plaintiff has suffered as a direct result of his injuries, if any, and you may also take into consideration the nature and extent of plaintiff's injuries, if any, and whether or not any of said injuries, if any, are permanent. You are further instructed that if you find for the plaintiff you may take into consideration in assessing his damages, his lost time and wages, if any, and doctor bills, if any, necessarily incurred in connection with the treatment of his finger, which you may find to be shown by the evidence in the case.' The Kansas City Court of Appeals held the giving of the fore going instruction amounted to a misdirection of the jury, rather than mere nondirection. As bearing upon the ruling of the Kansas City Court of Appeals in that case, it is to be noted that the trial jury returned a verdict of $3,000 for plaintiff and the trial court required plaintiff to file a remittitur of $1,000, and, in discussing the question, the Court of Appeals there remarked: `As to the amount of damages recoverable, the court improperly instructed the jury because the instructions permit the jury, if it sees fit, to allow more than a reasonable sum to compensate plaintiff for his injuries, and the jury proceeded to allow an excessive amount.' (Italics ours.) So that it is apparent that the ruling of the Kansas City Court of Appeals in that case is predicated upon the excessive verdict below as indicative of what that court believed to be the harmful and material vice of the instruction there under consideration.

"But a critical examination of the instruction in the instant case discloses that the jury were limited in assessing plaintiff's damages to any loss of earnings which they believed from the evidence `she will reasonably lose in the future in consequence of her injuries, if any;' and to such indebtedness for medical services and medicines in the treatment of her injuries, if any, as they found `plaintiff has reasonably incurred, not exceeding $300.' Furthermore, the instruction limited the jury to an assessment for loss of plaintiff's earnings prior to filing her amended petition on May 10, 1920, `at a rate not to exceed $18 a week, and not exceeding the sum of $792.' Plaintiff's amended petition filed on May 10, 1920, alleged that she had then incurred for medical attention and medicines the sum of $300 and she had then lost earnings as a cap-maker for a period of forty-four weeks at the rate of $18 per week, amounting to $792. The proof shows the reasonable value of medical services incurred by plaintiff at the time of trial was $351.75; that, at the time plaintiff was injured, she was getting $14 per week, and that shortly afterward, in September, 1919, the wage of cap-sizers was increased to $19 per week, and after about a month, there was an increase in wage to $25 per week and at the time of trial in November, 1920, cap-sizers were being paid $27 per week. So, as respecting the elements of lost earnings and indebtedness incurred for medical services, plaintiff's instruction limited the jury to the respective amounts asked and alleged in her petition and supported by the proof. Plaintiff in her petition alleged she was damaged in the aggregate sum of $15,000 and prayed judgment for that amount. The jury by their verdict allowed her $5,000, which sum neither the trial court nor the St. Louis Court of Appeals deemed excessive, and which we do not find to be excessive, if respondent suffered the injuries of which she complains and testified.

"Did then the giving of plaintiff's Instruction 12 constitute reversible error under all the facts and circumstances of this case.' In Browning v. Railroad, 124 Mo. l.c. 71, we said: `The instruction on the measure of damages is also assailed as error. The instruction was in these words: "If the jury find for the plaintiff they will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of $5,000." The defendant asked no instruction on the measure of damages whatever. No attempt was made by it to point out the proper elements of damage in such cases or to modify the general language of the instruction. The instruction is not erroneous in its general scope; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury, it was the duty of the counsel to ask the modifications and explanations, in an instruction embodying its views. The court is not required in a civil case to instruct on all questions, whether suggested or not, and as there is nothing in the amount of the verdict to indicate that the jury were actuated by any improper motive in their assessment, the general nature of the instruction is no ground for reversal.'

"In Robertson v. Railroad Company, 152 Mo. 382, the instruction under review read: `3. If the jury find for the plaintiff they will assess her damages at such sum, not exceeding $5,000, as they may believe from the evidence she has sustained by reason of the injuries to her foot and ankle resulting from the injuries complained of. And in assessing her damages the jury may take into consideration any evidence in the case as to any pain and suffering resulting from said injuries and any evidence as to the character and extent of such injury and any evidence as to any expense she has necessarily incurred in being treated for said injuries.' We there said: `Plaintiff's third instruction is also criticised upon the ground that it furnished the jury no guide by which to estimate the damages plaintiff was entitled to recover in the event of their finding for her; besides, it authorized a recovery for medical expenses when none were proven. We see no objection to the instruction except that part of it which authorized a recovery for medical expenses. . . . With this exception, the instruction is good as far as it goes, and if defendant desired to restrict plaintiff's right to the damages that she was entitled to recover to more limited bounds than was done by the instruction it should have asked an instruction to that effect. [Browning v. Railroad,124 Mo. 55; Matthews v. Railroad, 142 Mo. 645; Barth v. Street Ry.,142 Mo. 535.]'

"In Boettger v. Iron Co., 124 Mo. l.c. 105, we said: `The generality of the instruction upon the measure of damages is also objected to, but as it is evident from the amount of the verdict that the defendant suffered no injury by reason thereof, the judgment ought not to be reversed on this account. If counsel for defendant desired a more definite instruction on the measure of damages they should have asked for it.' In that case, the jury were instructed to allow plaintiff `such damages, not exceeding $5,000, as you may deem fair and just under the evidence in the case, with reference to the necessary injury resulting to her from the death of her husband.'

"And an instruction on measure of damages much more general in form than the one now under review was approved in Wheeler v. Bowles, 163 Mo. 398.

"In Shinn v. United Railways Co., 248 Mo. 173, an instruction on the measure of damages was claimed to have constituted reversible error because of its looseness in language and generality of terms. LAMM. J., delivering the opinion of this court, there said: `We will not speculate on what the jurymight do, or airly conjecture this or that. We stand on the proposition that the jury are presumed, absent anything to the contrary appearing, to obey their oaths and bring in a verdict according to the evidence. Being men of sense and acting under an oath freshly taken, they are entitled to that presumption.'

"The St. Louis Court of Appeals in their opinion in the instant case (251 S.W. l.c. 483) say: `The instruction now under consideration certainly was good as far as it went. Now it was the duty of defendant's counsel to ask the trial court to limit the measure of damages if it was so desired, and, unless the court refused to so limit the measure of damages, there is no error committed by that court if the instruction given is good in its general scope. Thus we have a mere nondirection which is no ground of error in this court. This instruction, after all, left to the jury to find the amount plaintiff should recover for the loss from the injury complained of in the petition and as supported by the evidence. Presumably, at least, there was a jury of twelve sensible men, who understood that this was a lawsuit to recover just compensation for injuries which plaintiff received through the alleged negligence of the defendant. It was a suit to recover damages, which is a pecuniary compensation or recompense for the injury sustained. Is it fair to say that because of the failure to use the words "reasonable compensation" the jury gave a higher verdict than justice demanded, or higher than they would have given if such phrase had been used in the instruction? The defendant had an opportunity to constrict the measure of damages in the proper limits by its own instruction, and has failed to do so.'

"We are inclined to the view expressed by the St. Louis Court of Appeals herein. The trial jury knew that they were the triers of a lawsuit and that one of their functions and duties, as such, if they found for plaintiff, was to `assess her damages,' for the instruction so charged them. It is only by use of the most hypercritical reasoning and analysis that the instruction may be said to be deficient in any respect. Webster's New International Dictionary defines the word `damages' as `the estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by the violation of a legal right.' The terms `reparation' and `compensation,' as commonly understood, carry with them the idea of `making whole,' or giving an equivalent or substitute of equal value. So when the jury are instructed to assess `damages,' then under the ordinary definition and commonly accepted meaning of that word, they must necessarily be presumed to know that they are to award the litigant reparation or compensation; in other words, their verdict should make the litigant whole. We fail to see where there can be any comparative degrees of reparation or compensation, whether denominated `reasonable' or `unreasonable.' In other words, reparation is but reparation, nothing more and nothing less, and compensation is but compensation. If, by the jury's verdict, the amount of damages assessed is either more or less than compensation, both trial and appellate courts have the inherent power to correct the error in judgment of the jury. But, whether right or wrong in this conclusion, it is clear to our minds that there was no misdirection of the jury by plaintiff's instruction, for while it permitted an assessment of her `damages,' it limited the jury to a consideration of proper elements of damage alleged in the petition and supported by the proof. If appellant was not satisfied with the scope of the instruction, because of its failure to define the term `damages' used therein, then it should have submitted an instruction defining that term. It did not see fit to do so and should not be heard to complain now. We see no reversible error in the giving of the instruction on the measure of damages under the facts and circumstances of this case.

"IV. Appellant assigns error in the overruling of its motions to discharge the jury because of certain alleged prejudicial answers of plaintiff and her physician with reference to one of defendant's witnesses, a physician, having been employed in this action by an insurance company. The matter in question arose at the trial in this way: Plaintiff was examined on two separate occasions by a Dr. Kinder, who testified as a witness for defendant at the trial respecting the conclusions he arrived at as a result of his two examinations. On one of these occasions, Dr. Kinder made an examination of plaintiff's knee in the presence of plaintiff's physician and later the two physicians examined the X-ray photographs taken of plaintiff's knee. Upon re-direct examination of plaintiff's physician, testifying on behalf of plaintiff, this occurred:

"`Q. How did you get in touch with Dr. Kinder? A. Dr. Kinder was sent there by the insurance company; that is, I so understood it.

"`MR. KELLEY: I move that the jury be discharged, because he didn't understand any such thing, and that answer was made by a wilful witness, one intended to prejudice this defendant before the jury, and done with premeditation, and for the purpose of substituting the defendant in this case.

"`MR. RUTLEDGE: I consent to the answer being stricken out.

"`MR. KELLEY: Oh, no; I move that the jury be discharged.

"`THE COURT: What was Dr. Kinder's relation to the case?

"`MR. KELLEY: He went there for the defendant to examine her, and this witness sits here and blurts out this purposely.'

"`The trial court thereupon sustained the objection to both question and answer, but refused to discharge the jury.

"Plaintiff, on re-direct examination upon her case in chief, testified: `I really cannot exactly remember when was the first time Dr. Kinder came to see me, or how long it was after I was injured. Q. Do you know how he came to see you? (Objection overruled). A. He just came and knocked at the door and he just said that he was the company doctor, that is all he said.' (Italics ours).

"Dr. Kinder thereafter testified for defendant. Direct examination: `I went to the plaintiff's home and stated to the plaintiff that I had been requested by the Modern Cap Company (defendant) to come and see her, and to ascertain her physical condition, and she told me that she had had an accident there.' Cross-examination: `The first time I went to see Miss Jablonowski I went at the request of an attorney by the name of Mr. Pardee, who told me he represented the Modern Cap Company. . . . I told her who I was and what I represented, what my business was, and that I represented the Modern Cap Company, and they wanted me to make an examination of that injury.'

"Plaintiff was again called as a witness in rebuttal and on direct examination testified:

"`Q. I will ask you if Dr. Kinder told you that he came from the defendant?

"`MR. KELLEY: I object to that as wholly immaterial.

"`Q. (continuing): Or at the request of the defendant?

"`MR. KELLEY: It doesn't make any difference one way or the other, what he told her.

"`THE COURT: She may answer.

"`A. Yes, sir; he did.

"`Q. What did he say? A. He said he was from the insurance company, a doctor from the insurance company.

"`MR. KELLEY: I again move that the jury be discharged, because that was done deliberately, done for the purpose of biasing and prejudicing the jury, and I move that the jury be discharged.

"`THE COURT: One moment, please; I say, you asked her a general question as to what was said, not limiting it to the point that you are seeking to rebut, but it is a question which would enable her to make a statement here which is highly and grossly improper before this jury, and she must have known that it was improper. I don't accuse you of suggesting it to her at all, because, of course, you know it is improper, and it is a very serious question whether I ought not to discharge the jury here on that account. You know perfectly well that whether a case is being defended by an insurance company or not is a matter that the jury has no right to take into consideration at all; it is not a question — that fact does not appear; there is nothing here to show that this case is being defended by an insurance company, and, even if it were, it wouldn't make any difference, as far as the rights of the party are concerned; we have been trying this case three days; I don't think I ought to discharge the jury; I think the jury is intelligent enough —

"`MR. RUTLEDGE: I am willing that the answer be withdrawn; I want to say, in answer to your Honor, to what your Honor has said, the question was made with the intention of rebutting what Dr. Kinder said with regard to his employment.

"`MR. KELLEY: Your Honor, we further object to it, and in answer to what he has just said I want to call your attention to the fact that on direct examination this plaintiff was asked for all the conversation she had with Dr. Kinder the first time that he came there and nothing like that was said, and now, in order to prejudice and bias this jury, and for the purpose of preventing us from a fair and impartial trial, that answer came in before I could object, was given here, not properly in rebuttal; the question wasn't proper to begin with, because it didn't rebut anything, and now in view of the discussion that has taken place between you and counsel, and in justice and fairness to the defendant and its rights, I again renew my motion to discharge this jury.

"`THE COURT: I think I have explained my ruling.'

"Whereupon the court denied defendant's second motion to discharge the jury."

It will be noted that in none of the vigorous protests made by defendant's counsel in the court below with respect to disclosures that would carry an implication that an insurance company was conducting the defense was there any denial of that fact. Nor has there been any such disclaimer in brief or argument here. The contention must be then that an insurance company in defending in the name of the record defendant in cases of this character has the unqualified right to have that fact concealed because of the possible prejudice that may exist in the minds of juries against such companies.

It is elementary that relevant and material evidence cannot be excluded solely on the ground that it may tend to prejudice the jury against one of the parties. If, therefore, the testimony of plaintiff that the witness Kinder stated to her that he had been sent to examine her by the insurance company gives appellant any just cause of complaint it is because that testimony was not relevant and competent for any purpose of the case. Touching the question of whether such testimony was irrelevant or collateral the language of this court in passing upon a situation very like that disclosed by the record in this case is apropos:

"It is not suggested, either by brief or in oral argument of counsel, that a casualty insurance company is not taking the burden of the defense of this case, as it has the perfect right to do. It has not only the right, but the obligation often rests upon it to protect its stockholders against wrongful claims in all legitimate ways, and the defense of suits not founded in honest liability is one of those ways; but in the trial of such cases upon the merits the jury is entitled to know everything that affects the credibility of witnesses and the weight to be given their testimony, including their interest not only in the subject-matter, but in the parties who are to profit or lose by the verdict. This goes not only to contractual relations with reference to the subject-matter of their testimony, but to their friendships and enmities. . . .

"When Mr. Bowser testified plaintiff had the right to ask him if he was not an employee of the defendant, and for the same reason and for the same purpose had the right to ask him if he was not there for the insurance company which produced him. For the same reason plaintiff had the right to ask Dr. Schreck if he was not the paid agent of the insurance company with respect to the subject of his testimony. The case as it is presented in this record could not have been honestly placed before the jury without the disclosure of the relation which these witnesses sustained to the company." [Snyder v. Wagner Elec. Mfg. Co., 284 Mo. 285, 310, 311, 312.]

In other words the interest or bias of a witness with respect to the issues on trial, his relation to the parties and the state of his feelings toward them are never irrelevant or collateral matters. [State v. Mulhall, 199 Mo. 202, 212; 28 R.C.L. 614, 615.]

The witness, Dr. Kinder, having testified that he told plaintiff he represented the Modern Cap Manufacturing Company and was sent by it to examine her, it was clearly competent for plaintiff's counsel on cross-examination, for the purpose of impeachment, to have asked him the direct question whether he had not stated that "he was from the insurance company, a doctor from the insurance company," and upon his denial to have placed plaintiff on the stand and asked her whether Kinder had made that specific statement. The testimony as elicited served precisely the same purpose. The fact that the usual foundation for that method of impeachment had not been laid was waived by defendant when it based its objection on the ground that what Dr. Kinder told her was "wholly immaterial." And in any event the appellant could not have been prejudiced by the mere failure of plaintiff to follow formal procedure in her efforts to impeach the testimony of one of its witnesses.

The assumption that plaintiff's counsel in bringing out the testimony complained of was acting in good faith must be indulged on the record before us, and our ruling herein is made on that basis. If the case were one in which it appeared that an insurance company had not in fact conducted the defense in the name of the record defendant and produced the witnesses and that questions had been propounded to witnesses with respect to their relations to such a mythical defendant, in bad faith and for the purpose of prejudicing the jury, a different situation would confront us.

The record as a whole disclosing no reversible error the judgment is affirmed. Otto, Atwood, White and Walker, JJ., concur; Blair, C.J., dissents as to Paragraph IV and result;Graves, J., not sitting.