Keehn v. D. R. F. Realty & Investment Co. , 328 Mo. 1031 ( 1931 )

This is an appeal from a personal injury judgment for $15,000 in favor of Hilda Keehn and against D.R.F. Realty Investment Company, a corporation. The amended petition, upon which the case was tried, alleged that defendants, owned, possessed, controlled and operated a building known as the Francis Building, 1531 Washington Avenue, in the city of St. Louis, in which offices and space for various tenants were rented, and said tenants and their patrons, customers and employees were invited to come into said building; that defendants operated in said building elevators for the transportation of persons from floor to floor as a common carrier of passengers; that on or about June 8, 1926, plaintiff, at defendants' invitation, was a passenger in one of said elevators and while a passenger thereon said elevator dropped, jarred and jolted in an unusual and extraordinary manner and plaintiff was thrown about in said elevator and struck and was struck by parts thereof, all of which directly and proximately resulted from the carelessness and negligence of defendants, and plaintiff was injured thereby. Defendants' answer was a general denial and when the case came on for trial plaintiff dismissed as to all defendants except appellant herein.

Evidence introduced in behalf of plaintiff tended to show that defendant D.R.F. Realty Investment Company owned and operated the building and elevator in question; that one of its tenants in said building was the Dunlap Millinery Company by which plaintiff was employed; that there were ten floors in the building and plaintiff worked on the ninth floor; that at about 5:30 o'clock in the afternoon of June 8, 1926, plaintiff and some other ladies employed by said millinery company took the elevator at the ninth floor of said building to be carried down to the first floor thereof; that the elevator came down at the usual rate of speed until it reached the fourth floor, and then dropped in a very unusual manner until it struck the bottom with great force and bounced up about two feet and back again to the bottom; that plaintiff was thrown against the back and floor of the car. Appellant does not claim that plaintiff failed to make a case for the jury, so further statement of the evidence will be made only to the extent necessary for a proper consideration of the assignment of errors now urged in this appeal.

Appellant's first point is that instruction numbered one given at the request of plaintiff on the measure of damages "is erroneous because it authorizes a recovery twice for the same injuries and loss." This instruction is as follows:

"1. The court instructs the jury that if under the evidence and the other instructions of the court, you find in favor of the plaintiff, then in assessing her damages you will allowDouble her such sum as you believe and find from the evidenceDamages. will fairly and reasonably compensate her:

"1st. For such pain and suffering of body and mind, if any, plaintiff has suffered by reason and on account of her injuries, if any, suffered on the occasion in question.

"2nd. For such pain and suffering of body and mind, if any, plaintiff is reasonably certain to suffer in the future by reason and on account of her injuries, if any, suffered on the occasion in question.

"3rd. For such permanent injuries, if any, plaintiff will suffer by reason and on account of the injuries, if any, sustained on the occasion in question.

"4th. For such loss of earnings, if any, you may find from the evidence plaintiff has suffered by reason and on account of said injuries, if any, suffered on the occasion in question, not however, to exceed the sum of $20 per week for such loss of earnings, if any.

"5th. For such future loss of earnings, if any, you find from the evidence plaintiff is reasonably certain to lose in the future by reason and on account of said injuries, if any, suffered on the occasion in question."

It is argued that the third paragraph of said instruction necessarily included paragraphs two and five, and not only authorized, but directed a double assessment of damages for the same injury and loss. The same question was raised in connection with a similar instruction in Coleman v. Rightmyer (Mo. Sup.), 285 S.W. 403, 406, and ruled contrary to appellant's contention. Paragraphs 1 and 2 of the instruction in that case also authorized a recovery for bodily pain and mental anguish, past and future; 4 and 5 for loss of earnings, past and future; and paragraph 3 was as follows:

"For such permanent injuries to plaintiff, if any, which the jury may find from the evidence, were occasioned by his injuries, if any, and directly caused thereby."

In ruling the question we said:

"The instruction in its opening clause reads: ``The court instructs the jury that if you find in favor of the plaintiff you will assess his damages, if any, at such sum as you believe will be fair compensation to him' — then follow the seven paragraphs indicating the elements of damages to be considered. The dominant thought is that the damages to be assessed should be fair, not double, compensation. It is inconceivable that the jury would understand that if they found the injuries suffered by plaintiff were permanent they should assess double damages for the injuries when the instruction expressly authorized fair compensation. While the form of the instruction is not to be commended, the jury would clearly understand that in awarding damages they were to consider whether the injuries were temporary or permanent, and simply award fair compensation. If counsel for appellant apprehended the jury might take the view now suggested, they should have asked an instruction clarifying this feature."

Counsel for appellant attempt to distinguish this and the instant case, but we observe no substantial ground of distinction as to the point ruled. Similar holdings appear in Laycock v. Rys. Co., 290 Mo. 344, 357, 235 S.W. 91; Westervelt v. Transit Co.,222 Mo. 325, 338, 343, 121 S.W. 114; Hite v. Railroad Co. (Mo. Sup.), 225 S.W. 916, and Reynolds v. Transit Co., 189 Mo. 408, 420, 88 S.W. 50. We think they control this case.

Appellant's next assignment of error is based upon the following paragraph in the motion for a new trial:

"16. Because the court erred in overruling defendant's objection to unfair argument of plaintiff's counsel in his closing argument where in substance he stated amongArgument other things that defendant could have had plaintiffto Jury. examined by a physician immediately after the injury or at any time immediately after or long before she was finally examined by a physician by agreement of counsel."

The only portion of the objectionable argument quoted in appellant's brief is as follows:

"MR. EAGLETON: All right. They waited until October, 1927, to get a doctor to make an examination. The time when any other sensible man would have got it was when something would show, especially where you are going to contend it never —

"MR. SCHWARTZ (interrupting): That is unfair argument. Examination must be had by consent or by order of court.

"THE COURT: Proceed with the argument.

"MR. SCHWARTZ: That is unfair and I except to it.

"To which action and ruling of the court defendant, by its counsel, then and there duly excepted and still excepts.

"MR. EAGLETON: Regardless of whether it is by consent or by court order, is it any harder to get consent in September, 1926, than in October, 1927? That is especially true, gentlemen, where you are pointing the finger of suspicion at somebody who brings a suit and notifies you of it in three weeks of the fact she was hurt there, and tells you how and when and why."

Counsel for appellant insists that this argument constitutes reversible error, citing Bergfeld v. Dunham (K.C. App.), 201 S.W. 640, 641; Stubenhaver v. Rys. Co. (K.C. App.), 213 S.W. 144; Johnson v. Ry. Co. (K.C. App.), 290 S.W. 462, 465. These are cases in which counsel were permitted to state to the jury that defendant could have the plaintiff examined as a matter of absolute right, and they are cited with approval in Atkinson v. Ry. Co., 286 Mo. 634, 228 S.W. 483. But, it does not appear that any such argument was made in this case. The accident occurred June 8, 1926. This action was commenced September 14, 1926. There was evidence that in the meanwhile defendant had been advised of plaintiff's claim. On October 21, 1927, defendant's physician, pursuant to consent given by plaintiff, had X-ray pictures taken, and testified at the trial that her kidneys were found to be in normal position. A physician who attended plaintiff for some time immediately following the accident and had X-ray pictures taken had testified that among other injuries he found "a sort of a traumatic misplacement of the kidney." The argument in question was directed to the timeliness and good faith of defendant's efforts to investigate the real nature and extent of plaintiff's alleged injuries, in view of defendant's long previous knowledge of the existence of her claim. Plaintiff's counsel did not assert that defendant could compel her to submit to a physical examination as a matter of right, and the cases cited are not in point. Hence, this assignment of error is overruled.

Counsel for appellant also say that the court erred in overruling defendants' motion to discharge the jury "after plaintiff had pretended to faint in the court room and was assisted from the room in the presence of the jury, and during the trial lay on a couch in the judge's chambers." AsFainting complained of in defendants' motion for a rehearingPlaintiff: the incident was that "plaintiff fainted in the courtDischarge room and it was necessary for two men and a lady toof Jury. assist her from the court room." Neither at the time of its occurrence, nor in the motion for a rehearing, did defendant suggest that plaintiff was guilty of any pretense therein. Furthermore, the record shows that it was the observation of the trial judge that plaintiff did not even faint, but "stumbled and fell down, and they took her by the arm and assisted her out." In this state of the record we cannot say that the court abused its discretion in refusing to discharge the jury.

Appellant's remaining assignment of error is that the amount of the judgment is excessive. Plaintiff claimed that she was thrown against the back of the elevator, that a place on her back about the size of her hand was caused to be discolored, that she became very nervous, that her menstrual periods became irregular, that she suffered severe pains in her back and lost about 15Excessive pounds in weight. She returned to her place ofVerdict. employment and worked for a short while, but was afterward confined to her bed for a number of weeks. She experienced severe headaches, impairment of hearing, sleeplessness and extreme nervousness, accompanied by sweating and numbness of the hands and ankles, which rendered her unable to work and continued to the time of the trial. There was evidence of misplacement of the right kidney, injury to an ovary, and enlargement of the thryoid gland. There was evidence that prior to this accident she enjoyed normal health and vigor and suffered no such impairments. When her physician, Dr. Striegel, was asked to take into consideration the conditions he had found and state if, in his opinion, plaintiff was reasonably certain to continue to suffer with those ailments in the future, he answered: "The possibilities are that she is." He was further asked: "And would you say, having in mind the duration of those matters up until the present time, that those injuries are of a permanent character, in your opinion?" His answer was: "Yes, sir." Dr. Deppe, who treated plaintiff over a period of months, testified as to certain nervous disorders he found existing and said: "I can't say she is going to be this way all her life, and I can't say she won't, but she hasn't made any improvement since I have seen her. In fact, her condition on October 17th was worse than when I first saw her. . . . There should have been some improvement, yes, under treatment." Counsel for defendant interposed no objections to the form of the questions that elicited this testimony regarding the permanency of plaintiff's injuries, and, as above noted, appellant's criticism of the single instruction given at plaintiff's request is that it authorized a recovery for double damages for the same injury, and not that it erroneously submitted the question of the permanency of plaintiff's injuries. The burden of defendant's insistence now is that under the evidence their permanency was doubtful and the extent of plaintiff's injuries was insufficient to warrant the amount of the judgment rendered. We do not think the amount is excessive, and the judgment is affirmed. Gantt, Frank andHenwood, JJ., concur; Ragland, J., dissents in separate opinion in which White and Ellison, JJ., concur.