Atkinson v. United Railways Co.

This is an action for personal injuries. The plaintiff, in the Circuit Court of St. Louis, recovered judgment in the sum of twelve thousand dollars, from which the defendant appealed.

On the morning of October 3, 1918, the plaintiff, Annie Atkinson, who had employment with the Paris Cloak Company in the City of St. Louis, boarded an east-bound car on Cass Avenue, to go to her work. When the car on which she was riding arrived at Marcus Avenue — which avenue runs north and south — a car on that street collided with the car on which she was riding. The Marcus Avenue car drove into the Cass Avenue car from the south with a violent crash, which did considerable damage to both cars. The plaintiff was thrown violently across the car from the seat on which she was riding; she received a number of bruises, contusions, and other injuries, which are fully described in the evidence. She suffered a great deal of pain, was incapacitated so that she could not work, and required medical treatment. The evidence was conflicting as to whether or not her injuries were permanent. The evidence for plaintiff tended to show that on account of the shock and the injuries which were received in the collision, her hearing and her vision were impaired, and that she was suffering from traumatic neurosis.

It is a res ipsa loquitur case. The principal issue on the trial was as to the extent of the plaintiff's injuries. The errors assigned in this court, to which attention is chiefly directed, consist of remarks made by the attorney for plaintiff in his argument to the jury. It was further complained that under the circumstances the verdict was excessive, and that there was error in the instruction on the measure of damages. It is unnecessary to review the evidence at any length.

I. It is contended that the argument of counsel for the plaintiff in his address to the jury was flagrantly improper, and requires a reversal. This argument and the colloquy interjected into it, with objections, are set out at some length inArgument the abstract of the record. Several different aspectsto Jury. are presented:

(a) A number of statements made by Mr. Kelley, attorney for plaintiff, in the progress of his argument, when objected to, were held improper by the court. In each of such instances Mr. Kelley, so far as the record shows, refrained, and directed his argument to other lines; there is nothing to show that he transgressed any order of the court, and nothing more than often appears in cases where there is a heated argument, with interruption as it proceeds. We do not find there was any error in that respect.

(b) Mr. Kelley proceeded to characterize the attitude of the defendants in the case as an attempt to "belittle" the plaintiff and "minimize" her injuries. Appellant's counsel objected, but the remarks of the plaintiff's attorney were allowed to stand. The only issue in the case over which there was any contest was as to the extent of the plaintiff's injuries — the plaintiff introducing testimony to show that she was greatly injured, and the defendant introducing testimony to show that she was not injured so much as she claimed. Perhaps the remarks of counsel were not as felicitous, nor as apt, as they might have been when he used the words "belittle" and "minimize," but there was no impropriety in the characterization of defendant's efforts. The remarks did not carry with them any suggestion of an unfair attempt to discredit witnesses for the defendant.

(c) Mr. Kelley then made this remark: "Whenever you shatter her nerves, you unfit that woman to become the wife of a man; you unfit her to ever become the mother of children."

The court was asked to reprimand the plaintiff's attorney on the ground there was no evidence that the plaintiff by her injuries had been made unfit to become a wife or a mother. It will be noticed that the statement of the attorney was not that there was evidence directly indicating such result. He was reasoning from the facts before the jury. The evidence showed the plaintiff's nerves were shattered and he was arguing as a deduction from that fact, that the woman was made unfit for the office of motherhood. The most defendant could claim in that respect was that the argument was unsound; that the facts did not warrant the deduction; but if this Court should reverse every case where a lawyer made an unsound argument or drew an unwarranted conclusion from given premises, few cases would stand the test. There was no error in allowing the argument to stand.

(d) The argument as it proceeded took this turn:

"MR. KELLEY: They had this doctor in this case with the report — it is admitted in this record at Mr. Priest's own request, that Dr. M.A. Bliss, a neurologist of note in this city, to make an examination, at their cost and expense, of theFailure plaintiff in this case. . . . Why didn't Dr. Blissto Call come on here, if there is nothing the matter with herPhysician. nervous system, and tell you? Why didn't they put him on the stand? Why did they single out these men? Very funny! They put on Dr. Keller and Dr. Dames at the same time and left Dr. Bliss away from here and not let you hear him. Why? They knew he was a neurologist; they knew that he had seen this woman and that he had made tests and that he had drawn conclusions and arrived at conclusions. I will tell you, gentlemen, you can't draw but one conclusion from it, and that is that Dr. Bliss would tell you that this woman has traumatic neurosis, just like Dr. Hoge told you that she has, like Dr. Kinder told you she has, that the nurse said that she is suffering from now, and they don't want it; that's the reason they didn't do it."

On the application of the defendant the court had appointed three physicians, Dr. Dames, Dr. Keller and Dr. Bliss, to examine the plaintiff as to the extent of her injuries. Dr. Dames was an aurist, Dr. Keller an oculist, and Dr. Bliss a neurologist. Those three specialists were to examine the three special results of which plaintiff complained — her defective vision, her defective hearing, and her neurotic condition. Drs. Dames and Keller were called by the defendant, and testified. Dr. Bliss was not called and defendant asserts that the reference to that fact by Mr. Kelley was very prejudicial.

Where a party fails to call a witness under his control or with whose testimony he is particularly acquainted, and of which the other party is ignorant, it is not improper for counsel on the other side in the argument to comment on the failure to produce such witness. This is particularly true where a party fails to call his own physician. [Evans v. Town of Trenton, 112 Mo. 390. l.c. 403; Willits v. C.B. Q.R.R. Co., 221 S.W. 65.] In such cases, of course, the other side could not produce such a witness, because the knowledge which the witness acquired by examination of the plaintiff was privileged — a privilege which could be waived by the plaintiff.

The rule seems to be general that no unfavorable inference may be drawn, and no unfavorable comment be made, by counsel in his, arguments on account of the absence of a witness whose evidence is equally accessible to both parties. It is reversible error to permit an argument of that character. [38 Cyc. p. 1491; Sears v. Duling, 79 Vt. 334; Green v. LaClaire, 89 Vt. 346; Gulf, C. S.F. Ry. Co. v. Sullivan, 178 S.W. (Texas) 615, l.c. 618.] The respondent seems to admit the rule, but claims that inasmuch as Dr. Bliss was appointed by the court on the application of the defendant, he is the defendant's witness and the plaintiff had not equal access to what he knows. It becomes then necessary to inquire by what authority the court makes such an appointment.

The law invests the trial court with authority to appoint physicians to make physical examination of the plaintiff in a physical injury suit. The defendant cannot demand it as a matter of right, but the court in its discretion may do it in the furtherance of justice. [Graham v. Sly, 177 Mo. App. l.c. 353; Sidekum v. Ry. Co., 93 Mo. 400, l.c. 403; Norton v. Ry. Co., 40 Mo. App. l.c. 646.] When the court makes such an appointment he does so because he determines in his discretion that the case calls for the opinion of disinterested and unbiased physicians, not friends of either parties, whose testimony is likely to be biased. [Fullerton v. Fordyce, 121 Mo. l.c. 10; Owens v. Railroad, 95 Mo. l.c. 178; Shamp v. Lambert, 142 Mo. App. l.c. 576.] This court in case of State ex rel. v. Anderson, 194 S.W. 268, placed the authority of the court in such cases upon the same ground as the general power to compel a discovery. Wigmore on Evidence, vol. 3, sec. 2194, treats of the subject in the same manner and says:

"Apart from specific privileges, then, a person is bound, if required, to furnish evidence by exhibiting his corporalfeatures, his chattels, and his premises, to the inspection of the tribunal or its duly delegated officers."

Wigmore then quotes from a Federal Decision of Justice BREWER, as follows:

"A person who testifies to his physical condition may be compelled (there being no improper exposure of person) touncover his body, that the jury may see whether there be such a physical condition as he has testified to."

The power to make such an appointment involves an order requiring the plaintiff to submit to examination. The court could not compel plaintiff to submit to such examination by the witnesses for the other side. The physicians appointed in such cases are the officers of the court. The order is made because an exhibition to the jury or the court, of the infirmities about which the injury is made, would not disclose the facts as fully and clearly as the examination of experts would reveal them. There is no ground for saying that Dr. Bliss was a witness of the defendant.

The Kansas City Court of Appeals held that it was improper for plaintiff's counsel to argue to the jury that defendant had a right to have a physician appointed to examine the plaintiff's injuries, and reversed a case because such argument was permitted. [Stubenhaver v. Kansas City Railways Co., 213 S.W. 144.] [See, also, Bergfeld v. Dunham, 201 S.W. 640, l.c. 641; Perkins v. Silverman, 284 Mo. 238, 223 S.W. l.c. 901.]

It is argued that the remarks of the attorney in this case, if not strictly proper, will not warrant a reversal, unless it appears that prejudice to the other side results. A reading of the evidence shows that the injury of which principal complaint was made in this case was the shock to plaintiff's nervous system. The plaintiff had introduced her physicians who testified to the existence of traumatic neurosis of an aggravated character which very seriously affected her health and comfort. Dr. Bliss is characterized as a nerve specialist of note, more capable, perhaps, of giving a correct and complete diagnosis than plaintiff's physicians. No one had been called by the defendant to testify upon that feature of the case; it had introduced its ear specialist and its eye specialist.

The argument directed attention to the omission to call Dr. Bliss, as the one man who knew best about plaintiff's neurotic condition, whose acquaintance was well known to the defendant, indicating that he was defendant's own witness, and asked the jury to draw from the incident an inference most favorable to plaintiff's story. It was prejudicial and the court erred in permitting it, so that a reversal is necessary.

II. Error is assigned to the instruction on the measure of damages on the ground that some elements of damage which the jury were required to consider are not justified by the evidence. Inasmuch as we cannot forecast what turn the evidenceMeasure of will take on another trial it is unnecessary toDamages. review the assignment. For the same reason it is unnecessary to consider whether the verdict is excessive.

The judgment is reversed and the cause remanded. Railey, C., concurs; Mozley, C., not sitting.