Summary
In Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, deceased was 44 years of age and was survived by widow and four dependent children.
Summary of this case from Fullerton v. Atchison, Topeka & Santa Fe Railway Co.Opinion
No. 42432.
January 14, 1952.
Wrongful death under Federal Employers' Liability Act. The deceased was killed when a temporary bridge support collapsed as it was being moved. The statement in appellant's brief is insufficient but the motion to dismiss is overruled. There was a submissible case. The specific negligence proved was within the allegation of general negligence. An instruction on accident was not required, nor an instruction on the credibility of a witness who has sworn falsely. Plaintiff's instruction was not properly attacked in the points and authorities, but it was not erroneous. Plaintiff's instruction on damages is sustained. Plaintiff's expert engineer and farm witnesses were properly qualified and such testimony was proper. Photographs were admissible, and error in requiring their production was not established. A model of the bridge support was admissible. A jury argument did not require the declaration of a mistrial, objections having been sustained. Plaintiff may not complain on appeal of a remittitur order which was accepted in the trial court. The judgment was excessive and a further remittitur is ordered.
1. APPEAL AND ERROR: Unfair Statement in Brief: Motion to Dismiss Overruled. Appellant's brief does not contain a fair statement, but this is supplied by respondent's brief. The motion to dismiss the appeal is overruled.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Collapse of Temporary Bridge Support: Submissible Case. There was a submissible case that the deceased employee was killed when a temporary bridge support collapsed as it was being moved in a negligent manner.
3. NEGLIGENCE: Pleading: Specific Negligence Within Allegation of General Negligence. The specific negligence proved was within the allegation of general negligence.
4. NEGLIGENCE: Accident Instruction Not Required. It was not error to refuse an instruction on accident.
5. TRIAL: Credibility of Witnesses: Instruction Not Erroneous. It was within the discretion of the trial court to omit from an instruction on the credibility of witnesses a clause as to a witness who has sworn falsely.
6. NEGLIGENCE: Appeal and Error: Attack on Instruction: Points and Authorities Insufficient. The points and authorities in appellant's brief do not sufficiently point out wherein plaintiff's instruction is erroneous.
7. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Death of Employee: Plaintiff's Instruction Upheld. Plaintiff's instruction did not assume negligence, but required a finding of sufficient facts.
8. DAMAGES: Wrongful Death Instruction Upheld. Plaintiff's instruction on damages due to wrongful death was not erroneous.
9. EVIDENCE: Witnesses: Witness Qualified: Proper Subject of Expert Testimony. Plaintiff's expert engineer witness was properly qualified, and his testimony as to safe methods of moving the temporary bridge support was a proper subject of expert testimony.
10. EVIDENCE: Witnesses: Farm Expert Qualified. Plaintiff's farm expert was properly qualified.
11. EVIDENCE: Photographs Admissible. Photographs of the scene of the casualty were admissible.
12. DISCOVERY: Improper Order Not Established. The record is insufficient to establish error on the part of the trial court in ordering production of photographs taken by defendant.
13. EVIDENCE: Model of Bridge Support Admissible. A model of the bridge support which collapsed was admissible.
14. TRIAL: Improper Argument: Objections Sustained. Objections to an improper jury argument were sustained, and there was no error in subsequently refusing to discharge the jury.
15. DAMAGES: Appeal and Error: Plaintiff Concluded by Remittitur Order: Appeal of Plaintiff Dismissed. The remittitur order was entered with the consent of plaintiff, who may not question its validity. Plaintiff's appeal is dismissed.
16. DAMAGES: Wrongful Death: Judgment Excessive. A judgment of $52,500, reduced by the trial court from $67,500, for the wrongful death of a farmer who was intermittently employed by defendant railroad, was still excessive by $12,500.
Appeal from Circuit Court of City of St. Louis; Hon. William B. Flynn, Judge.
AFFIRMED ( subject to remittitur).
John H. Haley, Jr., and Thomas R. McGinnis for appellant.
(1) The evidence was sufficient to make a case for the jury under the law, the pleadings and the evidence. The evidence established the facts submitted in the instruction (appellant does not contend otherwise) and warranted a finding of negligence under the Federal Employers' Liability Act. Tiller v. A.C.L.R. Co., 318 U.S. 54; Anderson v. A.T. S.F.R. Co., 333 U.S. 821; Bailey v. Central Vt. R. Co., 319 U.S. 350. (2) Appellant's argument that no negligence was shown in jacking up the bent until it was tight against the stringers is captious, irrelevant, and contrary to the evidence. It ignores the circumstances shown by the evidence and submitted in the instruction relating to the period after the actual operation of jacking up the bent was completed until, and at the time, the bent fell. It is also predicated upon an alleged failure of Jake Carver to remove himself from the bent after it was jacked up, contrary to respondent's, and most of appellant's, evidence and, in any event, is immaterial to the question of appellant's negligence. Points (10)-(15) and cases cited there; Tracy v. Terminal R. Assn., 170 F.2d 635; Thompson v. Camp, 163 F.2d 396. (3) The amended petition properly alleged a cause of action under the doctrine of res ipsa loquitur. Where a case is one to which the doctrine of res ipsa loquitur applies, a motion for more definite statement, directed to the petition, should be overruled. Zilcher v. St. L. Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654. (4) The doctrine of res ipsa loquitur is applicable to acts and omissions of fellow servants under the Federal Employers' Liability Act. Johnson v. U.S., 333 U.S. 46. (5) Falling objects under the exclusive control of fellow servants and others invoke the doctrine of res ipsa loquitur. Johnson v. U.S., supra; Pitcairn v. Perry, 122 F.2d 881; Cruce v. G.M. O.R. Co., 358 Mo. 589, 216 S.W.2d 754, affirmed 238 S.W.2d 674; Maxie v. G.M. O.R. Co., 356 Mo. 633, 202 S.W.2d 904, affirmed 358 Mo. 1100, 219 S.W.2d 322; Pollard v. J.J. Newberry Co., 228 S.W.2d 398; Pandjiris v. Oliver Cadillac Co., 329 Mo. 711, 98 S.W.2d 979; Perry v. Stein, 63 S.W.2d 296; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. (6) It was not error to refuse to give Instruction B offered by appellant on the theory of accident. The cause of the casualty was not unknown. It was the falling of the bent with which men were working. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. (7) It was not error to omit the doctrine "falsus in uno, falsus in omnibus," in the instruction which was given on credibility of witnesses which, except for that doctrine, was identical with Instruction C offered by appellant. Usually it is not an abuse of discretion for the trial court to refuse such instruction. State v. Willard, 346 Mo. 773, 142 S.W.2d 1046. (8) The instruction which was offered by appellant has been criticized. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242. (9) It was not an abuse of discretion in this case to refuse the instruction. The matter concerning which the witness Brown was contradicted by a prior statement was not as to material facts. (10) It was not error to give Instruction 1, the verdict directing instruction for plaintiff. The "facts," which appellant claims were erroneously omitted from the instruction, concerning what Jake Carver did or omitted to do, could only be matters of assumption of risk or contributory negligence and could not defeat recovery. Tracy v. Terminal R. Assn., supra; Thompson v. Camp, supra; and were not essential to warrant recovery and it was not error to omit them. Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602. (11) The other "facts" which appellant claims were erroneously omitted were not essential to warrant recovery, were not relevant to the theory of negligence actually proved and submitted, and respondent was entitled to submit such theory of negligence based on the facts shown by the evidence after the bent was jacked up. Bowman v. Std. Oil Co. of Ind., 350 Mo. 958, 169 S.W.2d 384; Vrooman v. Hill, supra. (12) The evidence does not support as a fact that the only purpose of placing a chain at the top of the bent was to aid in moving it over and it would have been error for either party to have submitted such as a fact in an instruction. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1, Vrooman v. Hill, supra. (13) The instruction did not assume negligence, but by its language required the jury to find negligence. (14) The instruction did not authorize a finding of negligence not pleaded. Cole v. Uhlman Grain Co., 340 Mo. 277, 100 S.W.2d 311. (15) The instruction was proper. Hilton v. Thompson, Trustee, 227 S.W.2d 675. (16) Instruction 10 was proper. It did not include any improper element of damage. Dodd v. M.-K.-T.R. Co., 354 Mo. 1205, 193 S.W.2d 905; Norfolk Western R. Co. v. Holbrook, 235 U.S. 625. (17) The instruction in terms limited the jury to a consideration of the evidence in arriving at the amount of damages. (18) It was not an abuse of discretion for the trial court to permit J.J. Feuchter to testify as an expert witness, considering his qualifications as an engineer. Tatum v. G.M. O.R. Co., 359 Mo. 709, 223 S.W.2d 418. (19) His testimony was a proper subject for expert testimony. 20 Am. Jur., Evidence, sec. 812. (20) It was not error to permit George T. Johnson to testify regarding the Carver farm. 20 Am. Jur., Evidence, sec. 814. (21) It was not error to admit in evidence the photographs showing the conditions at the bridge. Reed v. Coleman, 167 S.W.2d 125. (22) It was not error for the court to order appellant to produce the photographs, mentioned in Point (21), for copying by respondent prior to trial. Potter Title Trust Co. v. Pa. R. Co., 6 F.R.D. 609; Shields v. Sobelman, 64 F. Supp. 619; Bough v. Lee, 29 F. Supp. 498; Hickman v. Taylor, 153 F.2d 212; State ex rel. St. Louis Union Trust Co. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569. (23) It was not error to admit in evidence the model of the bent. Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W.2d 681. (24) This court will not infer passion and prejudice on the part of the jury from the amount of the verdict. Sofian v. Douglas, 334 Mo. 258, 23 S.W.2d 126. (25) The verdict was not excessive and it was an abuse of discretion for the trial court to have required a remittitur. Hampton v. Wabash R. Co., 356 Mo. 999, 204 S.W.2d 708; Mooney v. Terminal R. Assn., 353 Mo. 1080, 186 S.W.2d 450; 2 Roberts, Fed. Liab. of Carriers, Second Ed., sec. 902, pp. 1758-9; Dodd v. M.-K.-T.R. Co., 354 Mo. 1205, 193 S.W.2d 905; N. W.R. Co. v. Holbrook, 235 U.S. 625; Naylor v. Isthmian S.S. Co., 94 F. Supp. 422; Parmanter v. Miller, 234 S.W.2d 459; Fritz, Adm., v. P.R.R. Co., 185 F.2d 31; Sivert, Adm., v. P.R.R. Co., 7 N.A.C.C.A., Law Journal 230; Smith v. P.R.R. Co., 6 N.A.C.C.A., Law Journal 207; Duvall, Adm., v. Hazelrigg Trucking Co., 7 N.A.C.C.A., Law Journal 227; Walker, Adm., v. Okla. Nat. Gas. Co., 7 N.A.C.C.A., Law Journal 228. (26) It was not error for the court to refuse to declare a mistrial, because the remark was withdrawn by respondent's counsel and the trial court, in compliance with the request of appellant's counsel, immediately and emphatically instructed the jury to disregard the statement and a mistrial was not requested until after the noon recess, which was more than 1½ hours after the remark was made. Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487; Seested v. Post Printing Publishing Co., 326 Mo. 559, 31 S.W.2d 1045; Kelley v. Ill. C.R. Co., 352 Mo. 301, 177 S.W.2d 435. (27) The trial court abused its discretion by requiring a remittitur as a condition to overruling the defendant's motion for new trial, because: The verdict and original judgment were not excessive even without considering all of the elements of damages which might properly have been considered. 2 Roberts, Fed. Liab. of Carriers, Second Ed., sec. 902, pp. 1758-9; Dodd v. M.-K.-T.R. Co., 354 Mo. 1205, 193 S.W.2d 905. (28) The trial court was aware, by an offer of proof made by Mary V. Carver, admx., as to the productivity of beef cattle on the farm and the value thereof; that the earnings of the deceased from his farm could reasonably be more in the future but, nevertheless, required a remittitur after erroneously having excluded such evidence from the jury. Dodd v. M.-K.-T.R. Co., supra. (29) The court required the remittitur although the verdict was for less than the present cash value of the contributions by deceased to his family and apparently allowed nothing for the care, attention, instruction, training, advice or counsel which the minor children might reasonably have expected. N. W.R. Co. v. Holbrook, 235 U.S. 625. (30) The verdict was in conformity with verdicts in comparable, contemporary cases. Naylor v. Isthmian S.S. Co., 94 F. Supp. 422: Parmanter v. Miller, 234 S.W.2d 459; Fritz, Adm., v. P.R.R. Co., 185 F.2d 31; Sivert, Adm., v. P.R.R. Co., 7 N.A.C.C.A., Law Journal 230; Smith v. P.R.R. Co., 6 N.A.C.C.A., Law Journal 207; Duvall, Adm., v. Hazelrigg Trucking Co., 7 N.A.C.C.A., Law Journal 227; Walker, Adm., v. Okla. Nat. Gas. Co., 7 N.A.C.C.A., Law Journal 228. (31) The verdict was consistent with the most recent decisions of this court considering the difference between earnings, expectancy and number of dependents. Hampton v. Wabash R. Co., 356 Mo. 999, 204 S.W.2d 708; Mooney v. Terminal R. Assn., 353 Mo. 1080, 186 S.W.2d 450. (32) Appellant's "Statement," violated Rule 1.08, in Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282. (33) The assignment of error, based on an alleged failure of the amended petition to state a cause of action does not comply with the Rules. Weatherford v. Spiritual Union Church, 163 S.W.2d 916. (34) The assignments alleging error in giving instructions I and X on behalf of plaintiff were insufficient. Scott v. Mo. Pac. R. Co., 62 S.W.2d 835; Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161: Wahl v. Cunningham, 56 S.W.2d 1052. (35) The assignments of error to the admission of evidence were insufficient. Thompson v. City of Lamar, 17 S.W.2d 975; Cazzel v. Schofield, 8 S.W.2d 580.
Carl S. Hoffman and Everett Paul Griffin for Missouri-Kansas-Texas Railroad Company.
(1) The court erred in failing and refusing to direct a verdict against the plaintiff and in favor of the defendant at the close of the plaintiff's evidence, as requested by the defendant with grounds for said request, for the reason that under the law, the pleadings and the evidence, plaintiff did not make out a case against the defendant. 65 C.J.S., p. 330; Williams v. Terminal R. Assn. of St. Louis, 98 S.W.2d 651; Croskey v. Shawnee Realty Co., 225 S.W.2d 509; Schaum v. Southwestern Bell Tel. Co., 78 S.W.2d 439; Sec. 510.290, R.S. 1949. (2) The court erred in failing and refusing to sustain defendant's motion to dismiss the case at the close of the opening statement made by plaintiff's attorney on the ground that the statement made by plaintiff's attorney did not state a cause of action against defendant under the amended petition filed in the suit and also because it did not state a cause of action against the defendant. Sec. 509.300, R.S. 1949; Chandler v. Chicago Alton R. Co., 251 Mo. 592, 158 S.W. 35; Baysinger v. Hauser, 199 S.W.2d 644. (3) The court erred in not sustaining defendant's objection to the introduction of any evidence in the case at the first offer of evidence by plaintiff, on the ground that neither the amended petition nor the plaintiff's opening statement of facts stated a cause of action against the defendant either generally or under the petition. J.R. Watkins Co. v. Baker, 236 S.W.2d 745. (4) The circuit court erred in overruling on March 25, 1950, over the objection and exception of defendant, defendant's motion to dismiss, and also defendant's motion for more definite statement filed in this cause, because plaintiff's amended petition did not state a cause of action based on the doctrine of res ipsa loquitur and general negligence. If petition did not state a cause of action under the doctrine of res ipsa loquitur and was based on general negligence, defendant's motion to make more definite should have been sustained. Sec. 509.300, R.S. 1949; Ziehler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654; Also citations under Point (2). (5) The court erred in failing and refusing to give to the jury, over the objections of the defendant, instruction marked "B" offered by the defendant. The evidence showed that the injury was the result of an accident and the instruction was a proper accident instruction. Henry v. Grand Ave. Ry. Co., 215 S.W. 214, 113 Mo. 525; Zeis v. Brewing Assn., 205 Mo. 638, 104 S.W. 99. (6) The court erred in failing and refusing to give to the jury, over the objections of the defendant, instruction marked "C" offered by the defendant, on credibility of witnesses. Gillett v. Wimer, 23 Mo. 77; Roger v. Nowotny, 226 S.W.2d 596; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534; State v. Sloan, 309 Mo. 498, 274 S.W. 374; Ford v. Dahl, 360 Mo. 437, 228 S.W.2d 800; Quadlander v. Kansas City Pub. Serv. Co., 240 Mo. App. 1134, 224 S.W.2d 396; State v. Rozell, 279 S.W. 705. (7) The court erred in giving instruction marked "I" offered by plaintiff, which instruction and which action of the Court were objected to by the defendant. The instruction fails to set out the facts supported by evidence relied on to show the acts of negligence, so the jury may determine whether or not the facts are negligence. The instruction assumes negligence. The instruction authorizes a finding on negligence not pleaded. The instruction permits the jury to speculate and is confusing. The instruction is indefinite and uncertain and fails to define important words and fails to submit the true issues in the case. The instruction omits essential facts in the case and submits a mere conclusion of law. The instruction gives the jury a roving commission to find negligence. The instruction ignores conflicting issues of fact and fails to instruct on issues raised by them. Hale v. Coal Coke Co., 260 Mo. 351, 168 S.W. 927, Ann. Cases 1916 C, 375; State ex rel. v. Shain, 124 S.W.2d 1195; Yates v. Manchester, 217 S.W.2d 541, 358 Mo. 894; Dahlen v. Wright, 235 S.W.2d 366, l.c. 368; Alexander v. Hoehnshell (Mo. App.), 66 S.W.2d 164; Dameron v. Hamilton, 264 Mo. 103, 174 S.W. 425; Sherwood v. St. Louis S.W. Ry. Co., 187 S.W. 260. (8) The court erred in giving plaintiff's instruction marked "X" offered by and given for the plaintiff over the objection of defendant, on the measure of damages. This instruction did not correctly inform the jury as to the elements proper to be considered in arriving at a verdict as to the issues made by the pleadings and the evidence, but allowed the jury to enter the field of speculation and was a roving commission to the jury without any limitations. The instruction permitted the jury to speculate on the profits, if any, made by Carver on the farm and to speculate as to future profits. All of this was improper. Normadin v. Kansas City, 206 S.W. 913; Weddle v. Tarkio Electric Water Co., 230 S.W. 386; White v. National Lead Co., 99 S.W.2d 534. (9) The court erred in permitting Joseph J. Fuechter, an engineer, offered as a witness by plaintiff, to testify, over the objections of the defendant, as to the custom and practice of jacking up or moving a bent, and to testify to other matters as an expert, because the matters testified to were not proper subjects for expert testimony and because said Fuechter was not qualified and because to permit said witness to testify as an expert amounted to a usurpation of the function of the jury. Harville v. Harnson Engineering Construction Co., 7 S.W.2d 1032; Turner v. Haur, 21 S.W. 737, 114 Mo. 325; Gates v. Chicago Alton Car Co., 44 Mo. App. 488; Ribello v. C.B. Q.R.R. Co., 176 S.W.2d 670, 237 Mo. App. 587; Robison v. Chicago and Great Western R. Co., 66 S.W.2d 180; Homan v. Mo. Pac. R. Co., 70 S.W.2d 869, 335 Mo. 30; Cole v. Empire District Elec. Co., 331 Mo. 824, 55 S.W.2d 434. (10) The court erred in permitting George T. Johnson, offered as a witness by plaintiff, to testify, over the objections of the defendant, as an expert in regard to the farm of the deceased, because the matters testified to were not proper subjects for expert testimony and were mere conclusions of the witness and because said Johnson was not qualified and because to permit said witness to testify as an expert amounted to a usurpation of the function of the jury. See cases on Point (9). (11) The court erred in permitting the plaintiff and counsel for plaintiff, over the objections of the defendant, to introduce in evidence enlarged photographs of the bent in question and the surroundings of the place of the accident, which photographs were enlargements of snapshots made by the defendant's claim agent three days after the accident, after material changes had been made. These pictures were taken by the defendant's claim agent for the law department in the preparation of its case and for its information and were privileged matters. The defendant was compelled by order of the circuit court prior to the trial, to produce said photographs to the plaintiff for inspection, copying and photographing over the protest and objections of the defendant. Some of these pictures were not well taken and one in particular was a distorted picture, which plaintiff's counsel used effectively before the jury to the great prejudice of the defendant. Hickman v. Taylor, 329 U.S. 495; State ex rel. Thompson v. Harris, 195 S.W.2d 645, 355 Mo. 176, 166 A.L.R. 142; State ex rel. Clemens v. Witthaus, 228 S.W.2d 4; State ex rel. v. Caruthers, 226 S.W.2d 711; McCormick v. Lowe Campbell Athletic Goods Co., 235 Mo. App. 612, 114 S.W.2d 866; Lynch v. M.-K.-T.R. Co., 333 Mo. 89, 61 S.W.2d 918; Riggs v. Metropolitan Street Ry. Co., 216 Mo. 314, 115 S.W. 969. (12) The court erred on August 21, 1950, some time prior to the trial of this case, in entering and serving upon defendant an order directing it to produce certain photographs above referred to, which had been taken three days after the accident, after material changes had been made and which did not show nor purport to show the exact conditions existing at the time of the accident, for inspection, copying and photographing by plaintiff, all of which was over the objections and protest and exception of the defendant, and which photographs were used by counsel for the plaintiff improperly, unfairly and prejudicially. These photographs were taken by the defendant's claim agent for the law department in the preparation of its case and for its information and were privileged. Same cases as to Point (11). (13) The court erred in permitting plaintiff, over the objections of the defendant, to introduce in evidence and to use before the jury a so-called model of the bent which fell and injured plaintiff's husband. This case did not call for a model of the bent, nor did the model properly show the condition of the bent that existed on the day of the accident and said model was used improperly and prejudicially to the great damage of the defendant, all of which was over the objections of the defendant. In addition, the plaintiff had pictures of the bent, which he used in evidence, showing different dimensions, all of which was confusing. McCormick v. Lowe Campbell Athletic Goods Co., 235 Mo. App. 612, 114 S.W.2d 866; Lynch v. M.-K.-T.R.R. Co., 333 Mo. 89, 61 S.W.2d 918; Riggs v. Metropolitan Street Ry. Co., 216 Mo. 314, 115 S.W. 969. (14) The court erred in not granting defendant a new trial, because the verdict was not only grossly excessive, but was so grossly excessive that it indicated that the verdict is the result of bias, passion and prejudice on the part of the jury against the defendant and of favor, sympathy and partiality for the plaintiff. Counts v. Thompson, 222 S.W.2d 487, 359 Mo. 485; Hampton v. Wabash R. Co., 356 Mo. 999, 204 S.W.2d 708, certiorari denied 326 U.S. 723, 90 L.Ed. 1117, 68 S.Ct. 460; Mooney v. Terminal Railroad Assn. of St. Louis, 186 S.W.2d 450, 353 Mo. 1080, certiorari denied 326 U.S. 783, 90 L.Ed. 428, 66 S.Ct. 28; Finley v. St. Louis-S.F. Ry. Co., 160 S.W.2d 735, 349 Mo. 330; Hancock v. Kansas City Terminal Ry. Co., 146 S.W.2d 627, 347 Mo. 166; Carpenter v. Kurn, 157 S.W.2d 213, 348 Mo. 1132. (15) The verdict, notwithstanding the remittitur, is excessive. Cases under Point (14), supra. (16) The Court erred in refusing to declare a mistrial and discharge the jury at the request and motion of the defendant during the trial of the case, because of the inflammatory, prejudicial, improper, insulting and offensive statements of plaintiff's counsel during plaintiff's closing argument in this case, all over the objections and exceptions of the defendant, and in not granting defendant a new trial because of said error of the court. Hancock v. Kansas City Terminal Ry. Co., 100 S.W.2d 570, 339 Mo. 1237. (17) Plaintiff-appellant's appeal should be dismissed, because she is not an aggrieved party under the statutes of Missouri and because she elected to accept the remittitur and thereby have defendant's motion for new trial and motion for judgment for defendant overruled rather than to refuse the remittitur and have defendant's motion for new trial sustained. By so doing plaintiff-appellant waived her right to appeal and is estopped from appealing. Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 39 L.Ed. 889; McDaniel v. Hancock, 43 N.W.2d 68, 328 Mich. 78; Sec. 512.020, R.S. 1949; 4 C.J.S., p. 407, sec. 213; Conlin v. Southern Pacific R. Co., 182 P. 71, 40 Cal.App. 743; Florida East Coast Ry. Co. v. Buckles, 92 So. 159, 83 Fla. 599; National Malleable Castings Co. v. Iroquois Steel Iron Co., 165 N.E. 199, 333 Ill. 588; 3 C.J., p. 671, note 69 (d); Winsor v. Schaeffer, 34 S.W.2d 989, 224 Mo. App. 1220; 39 Am. Jur., p. 206, sec. 213; O'Connor v. Pawling Harnischfeger Co., 191 Wis. 323, 210 N.W. 696; San Bernardino County v. Riverside County, 135 Cal. 618, 67 P. 1047; Plinsky v. Nolan, 65 Or. 402, 133 P. 71; Iron Railroad Co. v. Mowery, 36 Ohio St. 418, 38 Am. Rep. 597; Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S.E. 148; Fleming v. Smouse, 73 Va. 188, 80 S.E. 144; Klock Produce Co. v. Diamond Ice Co., 98 Wn. 676, 168 P. 476; Lawrence v. Church, 128 N.Y. 324, 28 N.E. 499; McElrath v. Fall, 111 Wn. 438, 191 P. 398; Marin v. Jansen, 113 Wn. 290, 193 P. 674, 198 P. 393; Kubiatowski v. Henry Pratt Boiler, etc. Co., 205 Ill. App. 560. (18) Remittitur practice has long been recognized procedure in Missouri and applies to cases under the Federal Employers' Liability Act. The remittitur practice has long been established in Missouri as a matter of procedure in our courts and it applies to cases under the Federal Employers' Liability Act. Smiley v. St. Louis S.F.R. Co., 359 Mo. 474, 222 S.W.2d 481; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487; Joice v. M.-K.-T.R. Co., 189 S.W.2d 568, 354 Mo. 439; Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S.W. 332. (19) It is a well established rule in Missouri that one cannot accept of or acquiesce in a judgment and at the same time prosecute an appeal from it. The rule is that a litigant who has voluntarily and with knowledge of all the material facts accepted the benefit of an order, decree or judgment of a court, cannot afterward take or prosecute an appeal or error proceeding to reverse it. . . . The reason for this rule is that a party cannot proceed to enforce and have the benefit of such portions of a judgment as are in his favor and appeal from those against it — in other words, that a right to proceed on a judgment and enjoy its fruits and the right to appeal therefrom are totally inconsistent positions and the election to pursue one course must be deemed an abandonment of the other. Central States Life Ins. Co. v. Irwin, 115 S.W. 801, 342 Mo. 383; Winsor v. Schaeffer, 34 S.W.2d 959, 224 Mo. App. 1220; King v. Campbell, 107 Mo. App. 496, 81 S.W. 635; Segall v. Garlichs, 313 Mo. 406, 281 S.W. l.c. 693; 2 Am. Jur. 975. (20) The plaintiff-appellant cannot take inconsistent positions. "Blowing hot and blowing cold out of the same mouth does not commend itself to a Court of conscience," quoting Judge Lamm in Lee v. Lee, 167 S.W. 1030, 258 Mo. 599.
The Missouri-Kansas-Texas Railroad Company, a corporation, appeals from a judgment for $52,500 recovered by Mary V. Carver, Administratrix of the estate of Jake Carver, deceased, in an action under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) for the wrongful [99] death of Jake Carver, her husband. Defendant questions the submissibility of plaintiff's case, the admissibility of certain evidence, the giving and refusing of instructions, and contends the damages are excessive. Plaintiff also appeals and asserts error in the court's order of a remittitur of $15,000 from the $67,500 verdict as a condition to overruling defendant's motion for new trial, plaintiff having remitted said $15,000 but objected and excepted thereto.
Jake Carver was injured fatally on November 14, 1949, while employed as a member of one of defendant's Bridge and Building crews on defendant's interstate railroad track. Defendant was constructing new concrete abutments at each end of a bridge near Bluffton, Missouri, to replace the old abutments supporting wooden bents or braces, which in turn supported the stringers, supporting the ties to which the rails were spiked. Defendant's track runs east and west at the bridge and defendant's crew was working under the east end of the bridge. To replace the old abutment it was necessary to provide a temporary substitute to support the track. Some of the earth under the east approach was removed and leveled off east of the old abutment, and some of the old concrete had been dynamited. A temporary or false bent was framed out of 12 inch square dry Oregon fir. Its sill was 16 feet 2 inches long. Its cap was 16 feet 5-½ inches long. It had five upright posts 48 inches long, and had sway braces on either side of 4 by 8 inches by 16 feet 4-½ inches long.
On Friday, November 11, 1949, the temporary or false bent rested on wooden blocks on the ground underneath and perpendicular to the bridge and extended upward to within about 4 inches of the stringers. The space between the stringers and the cap of the bent had been shimmed in. The false bent was about 5 feet east of the old wooden bent on the concrete abutment, being about 4 feet east of the concrete, with a space of 20 to 24 inches between the wooden blocks and the concrete. To better support the bridge during the construction work, it was to be moved about 18 inches west, nearer the old abutment, but not so close as to interfere with the new construction work.
Clarence E. Brown, 21 years old, was foreman of the crew, and Claude Weber, also 21, was lead mechanic and acting foreman in Brown's absence. Brown testified that on November 11, just before quitting time, he discussed moving the false bent with Weber and some of the crew, telling them in moving the bent a chain should be used and fastened around the ties and the cap of the bent. One of the crew got a chain and placed it on the sill of the false bent.
On Monday morning, the 14th, the crew had assembled at the bridge when Brown received word he was to attend a Safety Rules meeting at Mokane. Brown testified he told Weber, who was to be in charge, to go ahead and move the bent and be sure and use a chain on it and jack it from the top, and also to work on the concrete. Brown then went to Mokane.
Weber, who had never moved bents similar to this one as an employee of defendant but had helped move a bent at St. Paul, Kansas, as a member of the crew, proceeded with moving the false bent 18 inches west. His plan was to jack the bent up tight against the stringers, drop a chain through the ties an around the cap of the bent to hold it while the men reset the blocks underneath the bent for its new position, then let the bent down on the blocks, release the chain, and move the bent west into position with manpower, using their hands or bars. Furlong, a crew member, asked Weber if he were going to put on the chain and Weber answered he was going to.
Under Weber's directions, several of the men took positions to steady the bent with their hands while it was being lifted. Mr. Carver and crewman Furlong were between the false bent and the old abutment, facing east, and other crew members were on the other side of the bent to steady it. A track jack, resting on level hard-packed clay, with some small rocks, was placed with its tongue under the bottom sill of the bent at its south end and another track jack was placed in a corresponding position at the [100] north end of said sill. The tongue of each jack extended out 3 inches from the jack and was 1-½ inches wide at the jack and 1-¼ inches wide at the end of the tongue. The shims between the cap of the bent and stringers of the bridge were removed. No chain was put on the bent. With the crew members steadying the bent, Weber at the north jack and a crew member at the south jack worked the jacks simultaneously and raised the bent 4 to 5 inches, placing its cap tight against the stringers of the bridge. Weber told the men it was tight and to come out.
Weber, defendant's witness, testified he did not want to walk underneath the bridge and started to go over the bridge to get the chain on the south side to fasten the bent but noticed the handle was still in his jack; and as he started to take it out, he noticed the bent was falling. He hallooed "look out," and tried to hold the bent but could not. The bent fell toward the west, toward the old bent. It fell to an angle of 45 degrees, caught Mr. Carver's head and held him in a hanging or standing position between the false and old bents, and knocked Furlong down, pinning him under the bent. Crew members released the two men. Carver died on the way to a hospital.
An inspection of the bent disclosed that the tongue of the north jack had splinters on it and had scoured out the center of the bottom of the sill.
Joseph J. Fuechter, a professional engineer, testified that the method used for moving the bent was not a safe and practical one; that the bent weighed approximately 1500 pounds and had a high center of gravity, making it fairly easy to tip; that it should have been lashed from the top to prevent its tipping and falling; and that with the tongue of the jacks parallel with the grain of the wood, the tongue was likely to cut into the wood and press the fibers unevenly and, under certain conditions, might cut all the way through.
Plaintiff has filed a motion to dismiss the appeal on the ground defendant's statement of the facts omits essential facts on which plaintiff relied and on the ground some of defendant's points and authorities do not comply with our rules. Rules 1.08 and 1.15, 352 Mo. appendix iii. We have examined defendant's "Statement" and "Points and Authorities," and find them subject to criticism and attack. A statement which omits the essential facts on which an appellant's adversary relies does not comply with our rules. Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, 283[3]. Defendant states it endeavored to make a "concise" statement. Rule 1.08 (a) (2) requires "a fair and concise statement of the facts without argument;" and fairness of statement is not to be sacrificed for conciseness. Some of the points in defendant's brief are stated sufficiently. Plaintiff, proceeding under Rule 1.08(c), has supplied a statement giving us plaintiff's view of the case and we are not required to search out for ourselves what is to be determined. In these circumstances, following precedent, plaintiff's motion to dismiss should be and is overruled. See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15, 16[1, 2]; Brown v. Citizens' State Bank, 345 Mo. 480, 134 S.W.2d 116, 118[1-3]; Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303, 304 [1, 2]; Nowlin v. Kansas City Pub. Serv. Co., Mo. App., 58 S.W.2d 324, 326[6].
Defendant's contention that plaintiff did not make a submissible case is not well taken. The gist of plaintiff's submitted theory was that defendant failed to have the top of the bent secure; that the failure to secure it was negligence, and that such negligence directly contributed to Mr. Carver's death, findings being required, among others, to that effect. The evidence favorable to plaintiff warranted findings that defendant's crew was engaged in work that was not safe, but hazardous, under the method being used, unless the top of the bent was lashed or made secure to prevent the bent from tipping and falling; that the bent fell after it pressed against the stringers and the men who had been steadying it released their holds when told by their foreman: "It is tight. Come on out"; and that it fell before the men between the two bents and in the direction of the fall had time to "come out." Weber, the assistant foreman, did not want to walk underneath the bridge, where the men had been steadying [101] the bent. The men were not engaged in simple manual work with simple tools, as were the situations in Williams v. Terminal R. Ass'n, 339 Mo. 594, 98 S.W.2d 651; Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439, cases cited by defendant. The determinative factor is not that the result could be accomplished by several different methods but that the method actually undertaken was carelessly and negligently executed. If any negligence of Mr. Carver contributed to his injury it would not defeat a recovery if defendant were also negligent (45 U.S.C.A. § 53).
Plaintiff's petition charged, so far as material, that the bent fell against Jake Carver; that the bent was, at the time it fell, under the exclusive control of employees of the defendant other than Jake Carver, and that it was caused to fall by the negligence of such other employees. Defendant filed a motion to dismiss and also a motion for a more definite statement on the ground the petition did not state a claim "based on the doctrine of res ipsa loquitur and general negligence." In plaintiff's opening statement to the jury plaintiff charged defendant with specific negligence. Plaintiff introduced evidence of and predicated recovery on specific negligence. Defendant moved that the case be dismissed at the close of plaintiff's opening statement and also objected to the introduction of any evidence by plaintiff on the ground plaintiff's opening statement did not state a claim against defendant under plaintiff's petition and the petition did not state a claim against defendant. Defendant contends error was committed in the overruling of said motions, citing Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; Chandler v. Chicago A.R. Co., 251 Mo. 592, 158 S.W. 35; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; J.R. Watkins v. Baker, Mo. App., 236 S.W.2d 745. Defendant does not apply the cited authorities to the specific situations presented in the instant record.
Where general negligence is charged, a recovery may be had on proof of specific negligence within the general allegation. Jarboe v. Kansas City Pub. Serv. Co., 359 Mo. 8, 220 S.W.2d 27, 31[7, 9]; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 323. The motions to dismiss were properly overruled. Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654, 658[8-10]. In Johnson v. United States, 333 U.S. 46, 49, 68 S.Ct. 391, 92 L.Ed. 468, plaintiff sued under the Jones Act (46 U.S.C.A. § 688) for injuries sustained when a shipmate permitted a block to fall which struck plaintiff on the head. The Jones Act makes the standard of liability of the Federal Employers' Liability Act applicable. The court stated (333 U.S. l.c. 49): "And there is no reason in logic or experience why res ipsa loquitur is not applicable to acts of a fellow servant. * * * the Federal Employers' Liability Act compels us to go no higher than a fellow servant." See also Pitcairn v. Perry, 122 F.2d 881, 883[3, 4]; Maxie v. Gulf, M. O.R. Co., 356 Mo. 633, 202 S.W.2d 904, 911; Cantley v. Missouri-K.-T.R. Co., 353 Mo. 605, 183 S.W.2d 123, 127[5, 6]; 65 C.J.S., p. 1017, n. 39. Defendant has not established error.
The court refused defendant's instruction to the effect that if the injury to Mr. Carver was the result of mere accident without negligence on the part of Mr. Carver or defendant, the verdict should be for defendant. Mr. Carver was injured from known actions of known persons and things, the falling of the bent which was not made secure by defendant's acting foreman to prevent its falling; and it has been held that an instruction on accident is not required in such circumstances by the weight of recent authority in this state. Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707, 712[10]; Wright v. Quattrochi, 330 Mo. 173, 49 S.W.2d 3, 4[1]; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 25 [13, 14]; Willard v. Bethurem, Mo. App., 234 S.W.2d 18, 22 [5, 6]. Mere contributory negligence of Mr. Carver would not defeat recovery (45 U.S.C.A. Sec. 53). Under plaintiff's main instruction the jury were not authorized to return a verdict for plaintiff without finding defendant guilty of negligence.
Defendant complains of the omission of the "falsus in uno, falsus in omnibus" clause from the given instruction on the [102] credibility of witnesses, having requested an instruction embracing the clause. Defendant's main ground for the inclusion of the clause is that witness Brown, its foreman, gave a signed statement to its claim agent three days after the occurrence in which Brown made certain statements that differed from his testimony at the trial. Brown testified that he was "upset" because of the accident when he gave his statement to the claim agent. There was corroborating testimony supporting Brown's testimony at the trial.
Gillett v. Wimer (1856), 23 Mo. 77, held the refusal of a falsus in uno instruction with respect to the testimony of a witness specifically named in the instruction was reversible error, and defendant says the case has never been overruled by this court. The holding in Gillett v. Wimer has long been departed from on the falsus in uno ruling by each division of the court, whether expressly overruled or not. It was not followed in Milton v. Holtzman, Mo. App. (1919), 216 S.W. 828, 829[2], where it is stated that the giving or refusing of the instruction rests largely in the sound discretion of the trial court, citing, among others, State v. Hickam (1888), 95 Mo. 322, 332, 8 S.W. 252, 257; White v. Maxey (1877), 64 Mo. 552, 559. The portion of the instruction given in the instant case has been considered to sufficiently submit the issue. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247[7, 8]; State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 1051[9-19]. See also State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 322[22]; Quadlander v. Kansas City Pub. Serv. Co., 240 Mo. App. 1134, 224 S.W.2d 396, 399[4, 5]; Ford v. Dahl, 360 Mo. 437, 228 S.W.2d 800, 805[6]; State v. Buechler, 103 Mo. 203, 209(V), 15 S.W. 331, 332(5); State v. Summers, Mo. App., 281 S.W. 123, 125[6, 7]; Annotations, 90 A.L.R. 74; 4 A.L.R.2d 1077. Abuse of the discretion resting in the trial court is not established.
Defendant's "points and authorities" attack plaintiff's verdict directing instruction, asserting (we state the substance of the statements) the instruction (1) fails to submit the evidentiary facts relied on to show negligence, (2) assumes negligence, (3) authorizes a finding of negligence not pleaded, (4) permits the jury to speculate and is confusing, (5) is indefinite and uncertain and fails to define important words and submit the true issues, (6) omits essential facts and submits a mere conclusion of law, (7) gives the jury a roving commission to find negligence, and (8) ignores conflicting issues of fact and fails to instruct on issues raised by them. This is followed by the citation of several authorities, the first three being Hall v. Manufacturers' Coal Coke Co., 260 Mo. 351, 368, 369, 168 S.W. 927, 932, Ann. Cas. 1916C, 375; State ex rel. v. Shain, 344 Mo. 57, 124 S.W.2d 1194, 1197, and Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. We are not informed in the points and authorities wherein the instruction is defective in any of the eight allegations of error or the application of the cited cases to the above assertions or any of them. Our Rule 1.08(3) contemplates, as did our former rules, a particularization in statement of the points relied upon and the citation of authorities to the specific points to which they apply, otherwise the presentation of controverted issues might well be limited to the argument. Consult, among others, Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161, 165[4]; Scott v. Missouri Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834, 840[17,18]; Aulgur v. Strodtman, 329 Mo. 738, 46 S.W.2d 172, 173[3,4]; Willard v. Robertson, Mo., 129 S.W.2d 911, 913[4,5]; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 884[20]; Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 913 S.W.2d 1055, 1056[3]; Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052, 1060[18]; Clay v. Owen, 338 Mo. [103] 1061, 93 S.W.2d 914, 916[9, 10]; Brown v. Citizens' St. Bk., 345 Mo. 480, 134 S.W.2d 116, 119[2]; Ford v. Wabash R. Co., 318 Mo. 723, 300 S.W. 769, 778[15]; Weatherford v. Spiritual Christian Union Church, Mo., 163 S.W.2d 916, 919[10].
Rule 1.08. "The brief for appellant shall contain: * * * (3) The points relied on, which shall specify the allegations of error, with citation of authorities thereunder; provided, however, if more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first; and (4) An argument."
We are loath not to rule on the merits. The instant instruction did not assume negligence but required a finding that the submitted facts constituted negligence. Negligence on the part of Mr. Carver at the time would not defeat a recovery if defendant were negligent, as the issue under the Federal Employers' Liability Act is whether defendant's negligence in whole or in part was a proximate cause of the injury or death (45 U.S.C.A. §§ 51, 53). Just what Mr. Carver was doing was not an essential element of plaintiff's case and under another instruction the jury found his acts, if negligent, were not the sole negligence. The issue involved negligence at the time the bent fell; that is, negligence, if so, in not making it secure so it would not fall. The specific negligence submitted was within the charge of general negligence pleaded. The instruction might have required the finding of additional facts, but it submitted the substantive facts essential to a finding of negligence on the part of defendant. This was sufficient. Controverted nonessential facts were not required to be submitted. Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 679[2]; Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602, 605[2].
Defendant's points and authorities question but do not particularize wherein plaintiff's measure of damage instruction is defective. The complaint seems to be that the instruction constituted a roving commission to the jury, permitting it to speculate, whereas it should have been limited to the evidence and the measure of recovery warranted by the evidence. The instruction limited the damages to such an amount "as you find and believe from the evidence to be the pecuniary loss due to the death of Jake Carver" et cetera. The portion of the instruction considered erroneous in White v. National Lead Co., Mo. App., 99 S.W.2d 535, 540[3], was not so limited; and defendant's other cases also do not establish error. Consult Dodd v. Missouri-K.-T.R. Co., 354 Mo. 1205, 193 S.W.2d 905, 907; Norfolk W.R. Co. v. Holbrook, 235 U.S. 625, 628, 35 S.Ct. 143, 59 L.Ed. 392.
Defendant contends the testimony of plaintiff's witness, Joseph J. Fuechter, a consulting engineer, "as to the custom and practice of jacking up or moving a bent, and to testify to other matters as an expert" was error because the witness was not qualified and the matters testified to were not proper subjects for expert testimony and invaded the function of the jury. This witness' competency as an expert was sustained in Tatum v. Gulf, M. O.R. Co., 359 Mo. 709, 223 S.W.2d 418, 423[3]. The witness gave testimony as to whether the method used in moving the bent was safe and practical and what methods would have been safe and practical. We think the testimony of a qualified witness as to proper and safe methods for moving a frame bent for the support of a railroad bridge pending its repair, the bent being 16 feet long, 6 feet high, made of 12 by 12 inch fir, weighing 1500 pounds, with a high center of gravity, balanced on the tongue of jacks under a bridge in somewhat cramped quarters, without the bent being lashed or otherwise secured to prevent its falling after the men are told to cease steadying it, was a proper aid to a jury of laymen to pass upon the ultimate fact issue. Combs v. Rountree Const. Co., 205 Mo. 367, 389(VI), 104 S.W. 77, 83(6); Hill v. St. Louis Pub. Serv. Co., 359 Mo. 220, 221 S.W.2d 130, 135[7]; Fair Mercantile Co. v. St. Paul F. M. Ins. Co., 237 Mo. App. 511, 175 S.W.2d 930, 937[6, 7]. Negligence vel non is ruled by applicable principles of law and not by the custom and practice of individual defendants. Grosvener v. New York Central R. Co., 343 Mo. 611, 123 S.W.2d 173, 177[5].
Defendant also presents like contentions against the qualifications and testimony of George T. Johnson, who testified as an expert with regard to the farm of the deceased. The witness had spent his life on a farm, except for the time he was in the service of his country, was a graduate of the University of Missouri College [104] of Agriculture, and was Associate County Agent in Montgomery County assigned to a "balanced farm ring" composed of approximately 70 farmers, whom he advised with respect to their farm operations. The record does not establish an abuse of discretion in permitting him to testify as an expert. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 606[7]; Fair v. Thompson, 240 Mo. App. 664, 212 S.W.2d 923, 928[3]; 20 Am. Jur. 684, § 814. The weight and value of his testimony was for the jury. Defendant does not specify any objectionable "matters testified to" in its points and authorities. The court sustained many of defendant's objections, overruling others. Error is not established.
The court, upon motion, ordered defendant to produce, among other things, certain photographs (snapshots) taken by defendant's claim agent November 17, 1949, three days after the occurrence. This suit was instituted December 14, 1949. Plaintiff's exhibits 2, 3, 4 and 5 were copies (enlargements) of the photographs, and defendant contends error was committed in admitting the exhibits in evidence, stating "some of the pictures were not well taken and one in particular was a distorted picture," and, stating the photographs were taken for defendant's law department in the preparation of its case and for its information and were privileged, error was committed in issuing the order to produce.
When plaintiff offered the originals in evidence it was stated that no objection was being interposed on the ground the exhibits were enlargements of the snapshots.
Members of defendant's crew testified that the exhibits fairly represented the conditions existing at the time Mr. Carver was injured with the exception that the bent had been moved 18 inches to the west, that is, into its new position. The exhibits were admissible with the explanation of the change shown. Reed v. Coleman, Mo. App., 167 S.W.2d 125, 133[13-15] and cases cited; Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713, 717[9].
Our statute authorizes the production, etc., upon motion and notice, "of any designated * * * photographs, * * * or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are" in the possession of an adversary. (§ 510.030, R.S. 1949) We have held the photographs were admissible in evidence. Defendant stresses Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. That case involved the production under the Federal rules of statements obtained and memoranda made by an attorney for the defendants as a result of private interviews with persons believed to have information concerning the occurrence involved — memoranda, statements and mental impressions (329 U.S. l.c. 498). The court held the burden rested on the movant who would invade the privacy of an attorney's course of preparation "to establish adequate reasons to justify production through a subpoena or court order" (329 U.S. l.c. 512; see also l.c. 510 and 516), and that under the Federal rules the files, mental processes and work product of lawyers were not subject to discovery "in a situation of this nature as a matter of unqualified right" (Id., l.c. 514). While the circuit court of appeals in the Hickman case, 153 F.2d 212, 222[9], was of opinion the requested discovery should be denied on the ground, in part at least, of privilege, the United States Supreme Court stated it was "not protected from discovery on that basis" (329 U.S. l.c. 508). We have held that parties could not be compelled under our code to produce statements obtained from witnesses because such statements are not admissible as relevant evidence germane to the claim; and the Federal decisions, interpreting the more liberal Federal rules, are not applicable in determining the proper scope of our code. State ex rel. v. Harris, 355 Mo. 176, 195 S.W.2d 645, 646 [2, 3, 11], 166 A.L.R. 1425; State ex rel. v. Caruthers, 360 Mo. 8, 226 S.W.2d 711, 713[3], among others. Prohibition is the appropriate remedy where the trial court exceeds its jurisdiction. State ex rel. v. Woods, [105] 316 Mo. 1032, 292 S.W. 1033, 1035[1]. The instant record states that plaintiff's motion was opposed by defendant and argued by counsel for plaintiff and defendant. All that transpired before the court is not disclosed. The order was entered upon the court "being sufficiently advised" and a presumption of a reasonable basis for the action attends said order. State ex rel. v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 386[5]; State ex rel. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569, 573[6]. Assuming right action in the issuance of the order, error is not established by the instant record. Consult also State ex rel. v. Ward, 351 Mo. 761, 767[3], 173 S.W.2d 920, 922[6].
Plaintiff introduced in evidence a model of the bent involved, and defendant claims error. The evidence established that the model was one-sixth the size of the original and was a fair representation of said original. Defendant's cases (see for instance McCormick v. Lowe C. Athletic Goods Co., 235 Mo. App. 612, 144 S.W.2d 866; Lynch v. Missouri-K.-T.R. Co., 333 Mo. 89, 61 S.W.2d 918) do not establish error. Consult Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W.2d 681, 689[14].
Defendant contends plaintiff's counsel committed reversible error in the closing argument. The court complied with defendant's requests and sustained defendant's objection to the improper argument and instructed the jury to disregard it. The arguments were finished at 12:30 p.m. When court reconvened at 2:00 p.m., defendant moved that the jury be discharged, which motion was denied. The situation is like that in Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 493[9]. The court complied with the objections interposed at the time and we conclude reversible error was not committed in later refusing to discharge the jury. Shields v. American Car F. Co., Mo. App., 293 S.W. 77, 78[2, 3]; Kelley v. Illinois Cent. R. Co., 352 Mo. 301, 177 S.W.2d 435, 441[10].
The court entered an order on defendant's motion for new trial to the effect that if plaintiff would remit $15,000 of the $67,500 judgment the motion would be overruled; otherwise it would be sustained on the ground the verdict was excessive. Plaintiff evidenced her dissatisfaction by objecting and excepting to the order but accepted the remittitur, and, contending the remittitur "was under the compulsion of a final order" which would sustain defendant's motion for a new trial, plaintiff seeks the reinstatement of the original judgment. Defendant has filed a motion to dismiss plaintiff's appeal.
There was no compulsion exerted on plaintiff under the instant order. Such orders are legally construed as then granting defendant a new trial on the ground the verdict is excessive with the privilege in plaintiff of retaining that portion of the judgment considered not excessive and defeating defendant's new trial. Steuernagel v. St. Louis Pub. Serv. Co., 361 Mo. 1066, 238 S.W.2d 426, 429[4]. Courts may not compel remittiturs. Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580, 591[14]; Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110. For this reason remittiturs are conditioned upon the consent of the party affected, and the privilege of an election is given the plaintiff to accept the remittitur or refuse it. Consult Dodd v. Missouri-K.-T.R. Co., 354 Mo. 1205, 193 S.W.2d 905, 906[1]; Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566, 568[2, 9]. It is pointed out in Counts v. Thompson, 359 Mo. 485, 502[8], 222 S.W.2d 487, 495[15-19], that counsel for injured plaintiffs sought the establishment of the remittitur practice that a judgment for a proper amount be entered to avoid the delay and expense of another trial. Burdict v. Missouri Pac. R. Co., 123 Mo. 221, 238, 27 S.W. 453, 456, 26 L.R.A. 384, 45 Am. St. Rep. 528, and the cited Missouri cases. See also Cook v. Globe Printing Co., 227 Mo. 471, 546, 127 S.W. 332, 359. An award of excessive damages is wrong, justifying a new trial to defendant, but defendant has no voice in plaintiff's election to accept or refuse a remittitur. By accepting the remittitur plaintiff obtains a judgment he otherwise would not hold, deprives defendant of a new trial and puts the trouble and expense of an appeal upon [106] defendant. Plaintiff's acceptance is based upon his voluntary consent (Burdict v. Missouri Pac. R. Co., 123 Mo. 221, 241, 27 S.W. 453, 457) and he may not question the validity of the order after accepting it. Kennon v. Gilmer, 131 U.S. 22, 30, 9 S.Ct. 696, 33 L.Ed. 110; Koenigsberger v. Richmond Silver Min. Co., 158 U.S. 41, 52, 39 L.Ed. 889, 15 S.Ct. 751; Florida East C.R. Co. v. Ruckles, 83 Fla. 599, 92 So. 159[1, 2]; McDaniel v. Hancock, 328 Mich. 78, 43 N.W.2d 68, 72[5, 6], citing cases; 4 C.J.S. 407, § 213; 39 Am. Jur. 206, § 213, n. 8-11. Defendant's motion to dismiss is sustained.
We now reach the troublesome question of the amount of the damages. The real complaint of defendant is that, notwithstanding the $15,000 remittitur, the $52,500 judgment remains excessive. The fact that a verdict is excessive does not in and of itself establish that it was the result of passion and prejudice. Hayes v. Wabash R. Co., 360 Mo. 1223, 233 S.W.2d 12, 18; Joice v. Missouri-K.-T.R. Co., 354 Mo. 439, 189 S.W.2d 568, 576[25]; Hancock v. Kansas City Term. R. Co., 347 Mo. 166, 146 S.W.2d 627, 630[3]. Plaintiff's measure of damage instruction sought the recovery of compensation for loss of the pecuniary benefits the beneficiaries might reasonably have received had the employee not died from his injuries. Hancock v. Kansas City Term. R. Co., 339 Mo. 1237, 100 S.W.2d 570, 580; Copeland v. Terminal R. Ass'n, 353 Mo. 433, 182 S.W.2d 600, 606[8].
At the time of his death Jake Carver was 44 and Mary v. Carver, his widow, was 38 years old. Their expectancies were 26.69 and 35.02 years, respectively. They had married in 1931 and had five children, four of whom were dependents, being 16, 13, 9 and 4 years old when he died.
Mr. Carver was a farmer. He was also a substitute mail carrier and at times worked temporarily for defendant. He was injured while working for defendant in 1945 and received $3,000 in settlement. He had been a tenant farmer. On February 18, 1946, he purchased a 240 acre farm, having about 140 acres in timber, for $3,500, giving back a part-purchase price mortgage, securing $1,000 at 5%, and taking the title in the names of himself and wife as an estate by the entirety. No payments had been made on the principal at the time of trial. He cultivated 40 acres of the land, had 60 acres in grass, and intended to have a stock farm.
Plaintiff seeks to sustain the $52,500 award on the basis of an annual contribution by Mr. Carver to the family, exclusive of his personal maintenance, of $3,662 (total income $4,692 less $1,030), claiming a present value thereof, computed on a 2-½% basis, of $69,489. Mrs. Carver was the only witness testifying to facts upon which to base a computation; and her estimates for 1949 are itemized as follows: "For carrying mail $200; From sawmill work $300; From the sale of live stock $410; From the sale of grain $432; From the sale of chickens and eggs $360; Live stock ready for sale of the value of $725; Grain ready for sale of the value of $320; Food used by the family of the value of $1,945 — Total $4,692." They also received $50 annual rent for an option to mine clay on part of the farm. Mrs. Carver stated she could not give the figures for 1948; but she thought they sold $510 worth of live stock, $800 worth of timber, and the chickens and eggs were "around" $360. Estimates for prior years were not given. Farm laborers received a minimum of 50 cents an hour in that vicinity.
The $1,945 item for food for the family was based on the prices Mrs. Carver had observed placed on foods in the stores. Such prices would include the expenses and profits of the processor, the wholesaler, and the retailer. The $800 item for sale of timber in 1948 was not an annual income, but a depletion of capital owned by Mr. and Mrs. Carver. We find no affirmative showing that there was no overlapping on an annual basis in the items for the sale of live stock and grain and value of live stock and grain on hand. Mrs. Carver held an interest in the land on which the live stock and grain were raised. She continued to receive the $50.00 annual rent on the mining option. She was the principal one handling the chickens and eggs, [107] but she could not state how many dozen eggs were produced in 1949 and did not know how many she sold. Asked whether her figure of $360 was high, she answered: "I don't know." She testified they kept no records of what was produced or sold from the farm and she could not give the expenses incurred. She stated Mr. Carver tried to put $500 back in the farm annually. They had no bank account. Her testimony was from memory. She did not know what profits the farm yielded in 1949, thought there were some, $100 or $200, but did not know about $300. Asked if all her figures were speculative, she answered: "They could be a little wrong. Q. Well, they could be a whole lot wrong, couldn't they? A. I wouldn't know. Q. They could be very much too high, couldn't they? A. I don't know." We need not develop additional facts of record on the issue.
The litigants stress the cases of Hampton v. Wabash R. Co. (1947), 356 Mo. 999, 204 S.W.2d 708, 713[7, 8], and Mooney v. Terminal R. Ass'n (1945), 353 Mo. 1080, 186 S.W.2d 450, 455[10-12]. The Hampton and Mooney cases involved considerations of wages of $162.44 and $200 monthly, respectively. Hampton was 28, with an expectancy of 33.03 years, at the time of death. He left a widow and two sons. A verdict for $40,000 was sustained. Mooney and his wife were 30 years of age at the time of his death, and he left two infant children surviving. A $45,000 verdict was reduced to $35,000 in the trial court, which was sustained here. A number of earlier cases are reviewed in the Mooney case. In Ford v. Louisville N.R. Co. (1946), 355 Mo. 362, 196 S.W.2d 163, 170, the employee was 51, and was contributing $200 monthly to the support of his family consisting of his wife and seven children. A verdict for $45,000 was ordered reduced to $30,000 in this court. See Finley v. St. Louis-S.F.R. Co. (1942), 349 Mo. 330, 160 S.W.2d 735, 740[9].
Giving consideration to the allowable items established by substantial evidence in the record before us, to the present economic conditions, the age of deceased, his earnings and all other pertinent factors, we conclude a judgment in excess of $40,000 should not be permitted to stand. A number of the cases considered present more favorable evidence for the plaintiff than the instant record.
If plaintiff will remit $12,500 within fifteen days, the judgment will be affirmed as of its date for $40,000; otherwise the judgment will be reversed and the cause remanded for a new trial. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.