Opinion
No. 41092.
July 11, 1949.
The facts and holding of the case are adequately summarized by the headnote.
NEW TRIAL: Prejudicial Cross-Examination: Failure to Object: New Trial Granted: Discretion of Trial Court Upheld. There was an important issue that plaintiff's injuries had been aggravated by failure to take advantage of the facilities of the Missouri Pacific Hospital Association, of which he was a dues paying member, and plaintiff through improper cross-examination of one of defendant's witnesses injected the issue that said Association maintained a spy system whereby physicians at the hospital would report the condition of patients to the claim department of defendant railroad company and come into court and testify against them. The trial court granted a new trial on the ground that such cross-examination was so highly prejudicial as to deprive defendant of a fair and impartial trial. The trial court acted within his discretion, and the fact that no objection was made to such cross-examination did not prevent such action.
Appeal from Christian Circuit Court; Hon. Tom Moore, Judge.
AFFIRMED.
Joe Crain, Sylvan Bruner, Sizer Myres, Wm. J.B. Myres and Edward V. Sweeney for appellant.
(1) No prejudicial error was committed in the cross-examination of defendant's witness, B.F. Thomas, and the action of the trial court in granting defendant a new trial because of such cross-examination was unwarranted and constitutes reversible error. A trial court has no discretion to set aside a jury verdict and grant a new trial in absence of prejudicial error compelling such action. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Van Loon v. St. Joseph Ry., Light, Heat Power Co., 271 Mo. 209, 195 S.W. 737; Stark v. St. Louis Pub. Serv. Co., 211 S.W.2d 500; McDonald v. Heinemann. 141 S.W.2d 177. (2) The questions asked by plaintiff's counsel were proper to show the true situation that existed with respect to said hospital and to explain plaintiff's reasons for not going there. Massman v. Muehlebach, 231 Mo. App. 72, 95 S.W.2d 808; Larabee Flour Mills v. West Plains Comm. Co., 216 Mo. App. 257, 262 S.W. 389. (3) Plaintiff was entitled to wide latitude in cross-examination of this witness and was entitled to ask any question which tended to test his knowledge, accuracy, veracity, or credibility. The questions propounded by plaintiff went directly to the question of the witness' knowledge of the subject about which he had testified on direct examination and were entirely competent. Wendling v. Bowden, 250 Mo. 247, 161 S.W. 774; State v. Davis, 284 Mo. 695, 225 S.W. 707; Massman v. Muehlebach, 231 Mo. App. 72, 95 S.W.2d 808. (4) Counsel for defendant, during the trial of this case, when referring to the Missouri Pacific Hospital, spoke of it as an employee's hospital. In argument to the jury defense counsel said: "The employee's hospital is not the railroad company's hospital, it is the employees'. Those doctors — they talk about being railroad doctors, they are employed by the employees of the Missouri Pacific." Plaintiff cross-examination of the defendant's witness Thomas was competent to refute this contention of defendant. Such cross-examination tended directly to show that the hospital was in fact operated for the benefit of the defendant as much, or more, than for the benefit of the employees and that the hospital was, if not an alter-ego of the defendant, at least an agent thereof. Phillips v. St. Louis-S.F. Ry. Co., 211 Mo. 419, 111 S.W. 109; Snyder v. St. Louis Southwestern Ry. Co., 228 Mo. App. 626, 72 S.W.2d 504; St. Louis Southwestern Ry. Co. v. Yates, 23 F.2d 283. (5) The ultimate purpose of any trial is to ascertain the truth regarding the matter on trial. The cross-examination of the defendant's witness Thomas was competent and proper to establish the true relationship existing between the defendant and the Missouri Pacific Hospital Association. Francis v. Terminal R. Assn. of St. Louis, 354 Mo. 1232, 193 S.W.2d 909; Bartlett v. K.C. Public Serv. Co., 349 Mo. 13, 160 S.W.2d 740; Redman v. Western Southern Life Ins. Co., 187 S.W.2d 842. (6) Defendant made no objection to the question as restated and indicated no dissatisfaction therewith. Nowhere in the record does it appear that either the trial judge or defense counsel at any time during the trial regarded the question as being improper or prejudicial. Such being the state of the record, there was no error in the admission of said testimony to justify the granting of a new trial. Schipper v. Brashear Truck Co., 132 S.W.2d 993. (7) The testimony of plaintiff on cross-examination relative to his failure to go to the Missouri Pacific Hospital, and the testimony of defendant's witness Thomas regarding the hospital plan (even if it had been competent) could go only to the question of damages. It touches on no other issue. The court, in passing on defendant's motion for new trial, ruled that plaintiff's verdict was not excessive. O'Bauer v. Katz Drug Co., 49 S.W.2d 1065. Therefore, assuming (arguendo) that the question asked of witness Thomas on cross-examination was erroneous, it was not prejudicially so, and consequently would not warrant a new trial, because the verdict was not excessive. State ex rel. Mo. Mutual Assn. v. Allen, 336 Mo. 352, 78 S.W.2d 862; McDonald v. Heinemann, 141 S.W.2d 177.
T.J. Cole and E.A. Barbour, Jr., for respondent.
(1) A trial court is to be given a wide discretion in passing on a motion for new trial and where the motion is sustained, the appellate court will be liberal in upholding the trial court's action, and such action will not be interfered with unless it appears that the court has abused its discretionary powers thus vested in it. Krinmeller v. Wipperman, 129 S.W.2d 43; Zesch v. Abrasive Co. of Philadelphia, 183 S.W.2d 140. (2) When a trial court has a reasonable doubt based on something or substance in the record as to whether or not there has been a fair trial, he should grant a new trial, the general rule being that the trial court must be finally satisfied with the verdict because of concurrence of the court with the jury is generally necessary in the administration of justice. Rickroad v. Martin, 43 Mo. App. 597; Peerless Fixture Co. v. Frick, 133 S.W.2d 1089. (3) The scope and extent of the cross-examination of a witness are matters largely within the discretion of the trial court and its rulings thereon will not be disturbed unless an abuse of discretion is shown. Bright v. Wheelock, 20 S.W.2d 684; Massman v. Muehlebach, 95 S.W.2d 808, 813; Tueteberg v. St. Louis Pub. Serv. Co., 41 S.W.2d 956; Neal v. Caldwell, 34 S.W.2d 104. (4) Prejudicial error was committed in the cross-examination of defendant's witness, B.F. Thomas, and the court was correct in granting a new trial for such prejudicial error because counsel for the plaintiff in framing said question violated the rule of law that questions must not assume the existence of facts which have neither been admitted or established in evidence. The record herein discloses that there was no evidence or admission of the facts on which the questions were asked. State v. Hudson, 259 S.W. 877; 2 Wigmore on Evidence, p. 2344; Bonslett v. New York Life Ins. Co., 190 S.W. 870; New York Life Ins. Co. v. Rankin, 162 Fed. l.c. 109. (5) The trial court has the right in the proper exercising of its discretional powers to grant a new trial on account of any erroneous ruling, whether excepted to or not. Noren v. American School of Osteopathy, 2 S.W.2d 215; Beer v. Martel, 55 S.W.2d 482. (6) If there was error in the record, a mere failure to except would not effect the trial court's power to grant a new trial. Schipper v. Brashear Truck Co., 132 S.W.2d 1000; Sakowski v. Baird, 69 S.W.2d 652. (7) There was evidence that the plaintiff had been advised by competent physicians that by going to a hospital and having an operation his injury would have been diminished. After such evidence, it was a question for the jury in order to minimize plaintiff's injury to pass upon whether or not plaintiff was negligent in not exercising ordinary care in the treatment of his injuries, undergoing an operation and following competent medical advice, and whether or not he would have benefitted by such operation and treatment. Lafayette Ward v. Ely Walker Dry Goods Co., 248 Mo. 348; Sneed v. Shapleigh Hardware Co., 242 S.W. 696. (8) "Court may order a new trial, when and for what reason. — Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor." Code, Sec. 119, Laws Missouri, 1943, p. 389.
The plaintiff appeals from an order of the circuit court of Christian county sustaining the motion for new trial of the defendant-respondent trustee of the Missouri Pacific Railroad Company, in plaintiff-appellant's suit for damages for personal injuries sustained while endeavoring, with the help of a co-employee, to close and latch the door of a sub-floor hopper on a railroad coal car at Cornell, Kansas. The jury had returned a verdict for $15,000 in favor of the appellant. Hence the appellate jurisdiction is in this court under Art. V. Sec. 3. Const. 1945.
We need not go into the details of the casualty, since only one point assigning error need be reviewed. This concerns the trial court's action in sustaining the motion for new trial on the ground that appellant's counsel had been guilty of prejudicial error in the cross-examination of the respondent's witness B.F. Thomas, a car inspector, concerning the Missouri Pacific Hospital Association, of which appellant [94] was a dues paying member, and the practice of the hospital to disclose information concerning patients' condition to railroad claim agents. Appellant had pleaded in his petition extensive permanent injuries to his arm, neck and general system, and also enforced expenditures of large sums of money for medical attention, hospitalization, nurse hire and drugs. These cover nearly a full page of his petition as set out in the typewritten transcript here. Nearly seven pages of the transcript on his direct examination deal with his injuries.
The testimony for appellant was that his injuries consisted of severe and extensive inflammation and swelling in his right hand and arm, a lump or cyst on the back of his wrist, kernels under his arm pit indicating infection of a nerve leading to his heart, and producing fever, severe pain, sleeplessness and permanent heart trouble which probably would result fatally. He was 61 years old and had consulted four physicians, all of whom he saw in Pittsburg, Kansas, where he lived. Of these Dr. Gish and Dr. Smith were railroad doctors. Dr. Newman was his family physician. He saw him first about five months after the casualty, and from then on about 100 times. Dr. Newman was the only medical witness for appellant. He said his bill would be $225. Appellant said he had spent $25 or $30 for medicine and admitted his physician Dr. Hartman had told him it would be necessary for him to go to a hospital. But he did not go to the Missouri Pacific Hospital in St. Louis because, as he said, "they" meaning the railroad or its claim agent, did not send him.
Dr. Smith was the only medical witness for respondent. He had seen appellant twice, once in Pittsburg, Kansas, three days after the casualty, which occurred on January 22, 1947, and a second time in Springfield, Missouri, a few days before the trial, which began on May 27, 1948. He found no heart condition either time, and on the latter occasion considered appellant's general condition much improved. His weight had increased and his blood pressure decreased, and the cyst on his hand had reduced in size about one-half.
It was respondent's contention that appellant had been negligent and haphazard in procuring regular and proper treatment; that he had failed to avail himself of the facilities of the Missouri Pacific Hospital Association, of which he was a member, in the treatment of his condition; and by so doing had failed to reduce his medical and other expense. He was interrogated about that on cross-examination and gave the answers above stated, without objection by appellant's counsel. Neither did appellant claim the railroad hospital would not afford proper treatment, or that he preferred to entrust himself to the other medical care. His only explanation was that they did not "send" him to the St. Louis hospital. All this evidence was in refutation of the allegation in paragraph VI of appellant's petition that he had been " forced to expend large sums of money for medicine, medical attention, hospitalization, nurse hire and drugs by reason of his injuries" (italics ours).
Later respondent called as a witness B.F. Thomas, who was a car inspector and had been in the employment of the respondent for 26 years. Most of his testimony was about the design and structure of railroad coal cars with hoppers, the proper method of closing the hoppers, and whether the door of the particular car here involved was "sprung" or bent. But in addition to that he was interrogated concerning the Missouri Pacific hospitalization plan. No objection was made to this except that the witness had not shown himself qualified to testify on that subject. He stated he was familiar with it and the objection was overruled. Then he testified that employees paid "so much every month" and that they got "full benefits", that is "anything necessary, they doctor you whether you are injured or sick." If any employee gets injured he could go to the hospital and receive all necessary medical attention without cost.
Under cross-examination by appellant's counsel he said the employee would get an order to go to the hospital from his foreman. He didn't know whether railroad doctors could issue the orders. Then he was asked: "Do you know if you went to [95] the Missouri Pacific Hospital as an injured employee, the claim department of the Missouri Pacific received regular reports from the hospital about your condition and about how long you will stay there, and the nature of your injuries, and if you go there, the hospital doctors come to testify against you?"
Respondent objected on the ground that the interrogation embodied three questions in one, and the court overruled the objection. The witness asked that the question be repeated. Appellant's counsel did so and the witness answered both as follows: "You know when you go into the Missouri Pacific Hospital for treatment as an injured employee the Claim Department of the Missouri Pacific Railroad receives regular reports from the hospital, and the attending railroad physicians report on your condition and future health, and about the length of stay you will be there? A. I suppose they make some kind of a report on it, — yes. And you know the doctors come from the hospital and testify against you for the railroad.' A. Well, I don't know, but I suppose they do, — I don't know."
This time respondent's counsel did not interpose an objection. But in the 12th assignment of their motion for new trial it was urged that the court erred in overruling the foregoing objection of respondent's counsel to the question as first asked (quoting it) — "Because said question was particularly vicious and prejudicial to the defendant for the reason that the obtaining of medical attention by the plaintiff of competent medical advice was an important element in the defense of the case, and also had a tendency to discredit defendant's medical testimony, who the evidence showed was a Doctor for said Missouri Pacific Hospital Association and had examined plaintiff in behalf of the defendant."
In passing on the respondent's motion for new trial, the trial court indicated a tentative view that the plaintiff-appellant's instructions 2 and 3 were erroneous. This, the court said, was because instruction 2 submitted only the negligence of the defendant-respondent (in failing to furnish a jack to close the hopper door). And instruction 3 submitted only the contributory negligence of the plaintiff-appellant in the abstract, without specifying any factual basis upon which that finding might be made. The court said this gave the jury a roving commission to find the plaintiff-appellant guilty of contributory negligence on any ground, and produced a state of confusion in apportioning the negligence of the two parties under the Federal Employers' Liability Act. But insofar as that was erroneous it was error against the plaintiff-appellant, and he got a satisfactory verdict and does not complain of it. Neither did the defendant-respondent.
The point on which the trial court actually sustained the motion for new trial was the 12th ground, set out in the second preceding paragraph bearing on the cross-examination of the witness B.F. Thomas about the Missouri Pacific Hospital. It must be conceded that respondent's counsel did not make a proper objection when that testimony came in. When the interrogation was first made counsel complained only that it included three questions, and when it was repeated none at all was made. But the motion for new trial did present the point now urged, and respondent also invokes Sec. 119 of the Civil Code, Laws Mo. 1943, § 119, p. 389, Sec. 847.119 Mo. R.S.A., which provides: "Section 119. Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor."
As will be seen, under this statute it was immaterial whether a motion for new trial was filed or not. See 2 Carr, Missouri Civil Procedure, p. 37, § 857, and our Rule 3.25. In passing on the point the trial court said: "The court allowing counsel for the plaintiff on cross examination to interrogate the witness B.F. Thomas as there set forth and to reiterate the same on further cross examination of such witness was erroneous as such evidence was as highly inflammable in view of the entire record of this case as any testimony [96] that could go before 12 men and did deprive the defendant of a fair and impartial trial in this case (italics ours).
"I am putting the burden of allowing such evidence to go before the jury squarely on the shoulders of the court and in my opinion such evidence was not admissible on any theory, and was as erroneous as if in a trial if a question should arise why a person didn't go into court and bring action for debt or damage to allow a witness to give answer; that the reason such wasn't done was that the court was influenced by someone else, and (don't you know that the court would decide against you) as each line of questioning goes further than speculation and even into the field of mind reading of some person or persons that the witness never saw, never heard of and possibly never knew was in existence." (Italics ours)
It will be noted the trial court held the cross-examination of the witness Thomas was "highly inflammable . . . and did deprive the defendant of a fair and impartial trial in this case." Further the court said: "I am putting the burden of allowing such evidence to go before the jury squarely on the shoulders of the court." Since the defendant-respondent failed to object to the cross-examination of the witness on that ground at the time, we would have no right to convict the trial court of error in permitting it, if the court, itself, had not acknowledged the error when passing on the motion for new trial. But since it did and took the responsibility for it, we see no ground for interfering with its ruling.
We agree with the court that the cross-examination was prejudicial. And this was true, not merely as going to the measure of damages, as appellant contends; but as tending to discredit and prejudice respondent on the whole case. Appellant's counsel injected thereinto the issue that the Missouri Pacific Hospital Association maintained a sort of entrapment or spy system whereby physicians at the hospital would report the condition of patients to the claim department and come into court and testify against them in their personal injury actions. And the cross-examination did that although the witness had not actually testified to it. When the witness Thomas was interrogated on that point he merely said, "I suppose they (the physicians) make some kind of a report on it — yes." And as to the physicians' testifying against the claimant he said, "Well, I don't know, but I suppose they do — I don't know." (Both italics ours). Furthermore appellant apparently was not averse to having railroad physicians know his condition. In the beginning he voluntarily was under the care of a Dr. Gish and a Dr. Smith at Pittsburg, Kansas, for about 12 days each, and when he was examined by the same or another Dr. Smith in Springfield the first time one of his attorneys was present. And the only reason he gave for not going to the railroad hospital in St. Louis was that they did not send him.
Appellant has brought up in his transcript the argument of respondent's counsel to the jury, wherein the latter asserted the Missouri Pacific hospital in St. Louis was "not the railroad company's hospital, it is the employees'. These doctors — they talk about being railroad doctors, they are employed by the employees of the Missouri Pacific." However, the transcript does not contain the opening and closing jury arguments of plaintiff-appellant's counsel. Appellant argues here that the foregoing cross-examination of witness Thomas was competent to refule the argument of respondent's counsel. But of course it is the other way around. The prejudicial cross-examination came first during the trial, and the jury argument of respondent's counsel attempted to repair the damage afterward. When Thomas was testifying the only objections of appellant's counsel to his testimony were directed against his qualifications as a witness on the point, and not to the subject matter of his testimony.
In our opinion the only defense of the prejudicial cross-examination of witness Thomas that possibly could have been made on the whole record, would have been that respondent's counsel did not object thereto at the time on the grounds stated later by the trial court. But as stated in 2 Carr, Missouri Civil Procedure, § 857, p. 38, [97] before the enactment of the Civil Code the rule had long been that an action was deemed to be in the breast of the trial court during the remainder of the term at which the judgment was rendered.
Under the statutes, Sec's 847.115, 847.119, Mo. R.S.A., the court had the discretionary power to grant one new trial. That power, it is true, is discretionary only as to questions of fact and matters affecting the determination of issues of fact. Schipper v. Brashear Truck Co. (Mo. Div. 1) 132 S.W.2d 993, 995 (2), 125 A.L.R. 674. But the court's action here belongs in that category.' And it was immaterial that respondent had failed to object and except at the time. Beer v. Martel, 332 Mo. 53, 60(7), 55 S.W.2d 482, 484(11). In such circumstances we should be liberal in deferring to the trial court's action, even though we may feel, on the cold record, that as a nisi prius court we might have ruled otherwise — this because of the trial court's better knowledge of the trial atmosphere and incidents, and their effect on a jury. State ex rel. Spears v. Hughes, 346 Mo. 421, 424(3), 142 S.W.2d 3, 5(3); Reichmuth v. Adler, 348 Mo. 812, 816-7 (1, 2), 155 S.W.2d 181, 182-3 (1-3).
For these reasons the action of the trial court in granting a new trial is affirmed. All concur.