Opinion
June 21, 1928.
1. NEGLIGENCE: Demurrer. Positive evidence for plaintiff tending to support the allegations of negligence, and positive evidence for defendant in direct contradiction of such evidence and allegations, make a submissible case, for the jury to determine.
2. ____: Charges: In Different Sections: Instruction: Variance. A general charge in one section of the petition that defendant negligently permitted the street car to collide with another ahead of it, coupled with a specific charge that the motorman negligently opened the rear door against which plaintiff was standing, and a charge in another section that the collision was caused by the negligence of the motorman in failing to check the speed of the car, should be taken together, in determining whether there is a variance between the petition and an instruction given.
3. ____: Specific Charge: Opening Car Door: Knowledge of Danger: Instruction. There is no harmful variance between a petition containing a specific charge that, while the street car was being run at excessive speed, the motorman negligently opened the rear door against which plaintiff was standing, with which is coupled up the further charge that the door was opened without warning to plaintiff and without his knowledge, and an instruction which authorizes the jury to find for plaintiff if defendant "carelessly and negligently opened or caused the door of the car to be opened and as a result of said carelessness and negligence plaintiff was violently hurled or thrown through the doorway" and injured, without requiring the jury to find that the motorman opened the door without warning to plaintiff and without his knowledge; and particularly so, where it is not claimed that plaintiff knew or that defendant warned him that the door was to be opened. The knowledge of plaintiff that the door was to be opened would not excuse the negligence of defendant in opening it.
4. ____: ____: Opening Car Door: Knowledge. Where it is not claimed that defendant warned the plaintiff that the rear door of the street car against which he was standing was to be opened, or that he knew it was to be opened, and defendant in fact denies that it was opened, an allegation in the petition that the door was opened without the knowledge of plaintiff that it was to be opened and without any warning to him is no part of the charge that the defendant negligently opened the door, and therefore an instruction which omits any reference to the warning or to plaintiff's knowledge is not a variance from the specific charge.
5. NEGLIGENCE: Instruction: Exact Language of Charge. An instruction for plaintiff need not follow the exact language of the specific charge. An instruction which requires the jury to find that the motorman negligently permitted or allowed the street car to approach, overtake, strike and collide with a car ahead, is equivalent to requiring a finding that the motorman negligently failed to check the speed of the car.
6. ____: ____: General: Covering Specific Charge: Proof. Even though an instruction for plaintiff be too general under the pleadings, a verdict and judgment for him should not be reversed, where the proof covered only the specific charges of negligence contained in the petition and the jury had before it no other act to consider.
7. ____: ____: Same Words Used by Defendant. Defendant is in no position to complain of words used in plaintiff's instruction where it used the same exact expression in its own instruction given.
8. ____: Injuries: Sufficient Evidence. Appellant cannot complain that the evidence was not sufficient to permit the jury to find that the plaintiff had sustained a certain injury submitted to them in his instructions, where there was substantial evidence that he had sustained such injury.
9. EVIDENCE: Miscarriage: Non-Expert. The question whether plaintiff's wife had suffered a miscarriage after the accident is not within the range of the ordinary witness, and defendant does not qualify a married woman to testify as an expert by showing that she was the mother of four children, had herself suffered a miscarriage and had attended a sister who had suffered a miscarriage.
10. ____: Untimely Objection. An objection that the inquiries are wholly outside the allegations of the petition, made after the examination on the question has proceeded for sometime, is untimely, and properly overruled.
11. ____: Admitted without Objection: Connection with Injury. Where plaintiff testified without objection to a discharge of certain mucous secretions after the collision, a continuation of the examination was not prejudicial, although his counsel promised, after objection to such continuation, that he would by other witnesses connect the testimony with the alleged injury, but failed to do so.
12. ____: Hypothetical Question: Expert Opinion. A question based on the experience of the witness as a physician and his examination of the plaintiff is a proper hypothetical question, and his opinion based on such experience and examination is admissible.
13. ARGUMENT TO JURY. The argument of respondent's counsel is not for review or appeal unless exception thereto was taken.
14. EXCESSIVE VERDICT: $20,000: Sensational Issue. Plaintiff was twenty-seven years of age, in good health and vigor, and earning $130 per month. There was evidence tending to show that as the result of a collision of defendant's street car on which he was a passenger, he was afflicted with severe traumatic neurasthenia and loss of sexual power. For several weeks he was unable to work, and thereafter performed different kinds of work at an average reduction of one-third in his former wages. At the trial, four years after the injury, a physician testified that he noticed only a slight improvement in his condition, and that the litigation would itself tend to retard his recovery. No physician testified that his nervous condition was permanent. The evidence as to permanent loss of sexual power was meager. The trial court held there was none. There was no injury to the genital organs, and his wife testified that after the collision she became pregnant. From the evidence the jury could well find that plaintiff suffered a temporary loss of sexual power and a severe injury to his nervous system, but the alleged loss of sexual power was the issue most bitterly contested, and naturally attracted the attention of the jury. Held, that a verdict for $20,000 will be affirmed only on condition that plaintiff remit $7500 as of the date of the judgment.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 810, p. 910, n. 82; 4 C.J., Section 2620, p. 709, n. 26; Section 3015, p. 1033, n. 37. Carriers, 10 C.J., Section 1409, p. 1003, n. 28; Section 1467, p. 1077, n. 39; Section 1477, p. 1089, n. 8. Damages, 17 C.J., Section 361, p. 1059, n. 62; Section 376, p. 1071, n. 70; Section 458, p. 1118, n. 18. Evidence, 22 C.J., Section 640, p. 545, n. 48; Section 711, p. 622, n. 71; 23 C.J., Section 1797, p. 54, n. 16. Trial, 38 Cyc., p. 1393, n. 35; p. 1397, n. 76.
Appeal from Jackson Circuit Court. — Hon. Samuel A. Dew, Judge.
AFFIRMED ( upon condition).
Paul C. Sprinkle, Kenneth McC. DeWeese and Cyrus Crane for appellant.
(1) Respondent's instruction number one is erroneous. The instruction is at variance with the petition as to the negligence. (a) The petition contains specific charges of negligence and also a general charge of negligence. Price v. St. Ry. Co., 220 Mo. 435. (b) The proof of the respondent was limited to the specific charges of negligence in the petition. McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440; Chitty v. Ry. Co., 148 Mo. 64. (c) The negligence submitted in the respondent's instruction covering the whole case is general. Porter v. Ry. Co., 311 Mo. 66; Degonia v. Ry. Co., 224 Mo. 564; State ex rel. Coal Coke Co. v. Ellison, 270 Mo. 645; Beave v. Transit Co., 212 Mo. 331. (d) The instruction submits a charge of negligence not contained in the petition. (e) The instruction assumes it to be negligence to operate a street car with the particular kind of an appliance the car had, on which the respondent was riding at the time of the accident. Allen v. Transit Co., 183 Mo. 411. (f) It wrongfully assumes permanent injury as to loss of "sexual powers." Colby v. Thompson. 207 S.W. 74; Waller v. Graff. 251 S.W. 734; Delvin v. City of St. Louis, 252 Mo. 203; Lebreeht v. United Rys. Co., 237 S.W. 114. (g) The phrase "or any of such results" is not limited by the instruction to the causes set out in the instruction. (2) The appellant's demurrer at the close of all the evidence should have been sustained. (3) The court erred in excluding evidence offered by appellant concerning the pregnancy of respondent's wife. Elliott v. Ry. Co., 157 Mo. App. 522: Schwanefeldt v. Ry. Co., 187 Mo. App. 588; Davis v. Ry. Co., 177 S.W. 1097; Wightman v. Benefit Society, 98 S.W. 829; State v. Robinson. 117 Mo. 664; Rearden v. Railroad Co., 215 Mo. 135; State v. Harris, 150 Mo. 56; Ranier v. Railroad Co., 271 S.W. 500; Dolan v. City of Moberly, 17 Mo. App. 436; Partello v. Ry. Co., 217 Mo. 645; Norris v. Ry. Co., 239 Mo. 695; Commonwealth v. Thompson, 159 Mass. 56; Littleton v. State, 29 So. 390. (4) The court erred in admitting testimony offered by respondent which respondent failed, under promise, to later make competent. Smith v. City of Sedalia, 182 Mo. 1; Root v. Ry. Co., 195 Mo. 348. (5) The court erred in admitting improper testimony as to respondent's injuries. Hutchinson v. Ry. Co., 288 S.W. 94; Magill v. Bank, 288 Mo. 489. (6) The remarks of counsel for respondent in his argument were prejudicial and erroneous. (7) The verdict of the jury is grossly excessive. Kuppe v. Transit Co., 122 Mo. App. 355; Wood v. Met. St. Ry. Co., 181 Mo. 433; Latson v. Transit Co., 192 Mo. 449: Chadwick v. Transit Co., 195 Mo. 517.
W.W. Holloway, John L. Gaylord and McAllister, Humphrey Pew for respondent.
(1) Respondent's instruction numbered one is not erroneous. Barnes v. Elliott, 251 S.W. 488; Quinley v. Traction Co., 180 Mo. App. 287; Johnson v. St. Ry. Co., 177 Mo. App. 298; Williams v. Railroad, 114 Mo. App. 1; Riley v. City of Independence, 258 Mo. 671; Wagner v. Ry. Co., 209 Mo. App. 121; Fischbach v. Dunham, 203 S.W. 217; King v. Samuel. 93 P. 391. (2) Appellant's demurrer to the evidence was properly overruled. Canty v. Halpin, 294 Mo. 96; Kaemmerer v. Wells, 299 Mo. 249; Lindsay v. Shaner, 291 Mo. 308; Hutchinson v. Mo. Pac. Ry. Co., 288 S.W. 91; Eyler v. Light Co., 237 S.W. 545; King v. Mo. Pac. Ry. Co., 263 S.W. 828; Hahn v. United Rys. Co., 238 S.W. 529; Loehr v. Wells, 253 S.W. 461; Gilmore v. Powell, 256 S.W. 124; Price v. Met. St. Ry. Co., 220 Mo. 453; Roscoe v. Met. St. Ry. Co., 202 Mo. 576; Roques v. Butler County Ry. Co., 264 S.W. 474. (3) The court did not err in excluding evidence offered by the appellant concerning the pregnancy of the respondent's wife. Wood v. Met. St. Ry. Co., 181 Mo. 433; Boies v. McAllister, 12 Me. 308; Murray v. Ry. Co., 52 P. 596; State v. Reinheimer, 80 N.W. 669; Wharton on Evidence, sec. 437; Gray v. Brooklyn Ry. Co., 175 N.Y. 448: Ternetz v. Lime Cement Co., 252 S.W. 65; Adams v. Ry. Co., 287 Mo. 535; Helfenstein v. Medart, 136 Mo. 595. (4) The court did not err in admitting testimony conditioned upon a later showing of competency. Gilchrist v. Rys. Co., 254 S.W. 161; Semple v. United Rys. Co., 152 Mo. App. 18; Hudson v. Rys. Co., 246 S.W. 578; Gieske v. Redemeyer, 224 S.W. 94; Bauer v. Smith, 74 Mo. App. 424; Monahan v. Clay Coal Co., 58 Mo. App. 75. (5) The court did not err in admitting alleged improper testimony as to the respondent's injuries. Noland v. Morris Co., 212 Mo. App. 1; Gieske v. Redemeyer, 224 S.W. 92; Ayres v. Theater Co., 210 S.W. 911; Gilchrist v. Rys. Co., 254 S.W. 161; State v. Privitt, 175 Mo. 207; Hicks v. Citizens Ry. Co., 124 Mo. 125; O'Neill v. Kansas City, 178 Mo. 91; Russ v. Wabash Ry. Co., 112 Mo. 45; State v. Baber, 74 Mo. 292. (6) The verdict of the jury is not excessive. L. N. Ry. Co. v. Melton, 127 Ky. 276; Malloy v. Ry. Co., 173 Mo. 85; State v. McGinnis, 158 Mo. 105; Hanlon v. Mo. Pac. Ry. Co., 104 Mo. 381; Bond v. Ry. Co., 288 S.W. 777; Stein v. Rainey, 286 S.W. 53; Godfrey v. Light Power Co., 299 Mo. 472; Myers v. Ry. Co., 296 Mo. 239; Meeker v. Electric Light Power Co., 279 Mo. 574; Myers v. City of Independence, 189 S.W. 816; Stotler v. Ry. Co., 200 Mo. 107; Fullerton v. Fordyce, 144 Mo. 519; Valley v. Taxicab Co., 240 S.W. 218; Huggard v. Iowa Refining Co., 132 Iowa 724; St. Louis Ry. Co. v. Webster, 99 Ark. 265; Otos v. Great Northern Ry. Co., 128 Minn. 283; Chicago Eastern Ry. Co. v. Holland, 122 Ill. 461.
On January 23, 1919, the plaintiff, Robert D. Morris, was a passenger on defendant's car, from which he claims to have been thrown and injured. The case was submitted on assignments of negligence as follows:
1. Negligently opening the door of the car, causing plaintiff to be thrown through the open doorway.
4. Negligent operation of the car, causing it to collide with a car ahead.
It is then alleged that plaintiff's injuries are the direct result of said negligence.
Trial was had, verdict for $20,000, and defendant appealed.
I. Defendant assigns error upon the refusal of its instructions in the nature of a demurrer.
The evidence for plaintiff tended to show the defendant operated a street car system between North Kansas City, Missouri, across the bridge spanning the Missouri River, to Demurrer Kansas City, Missouri: that plaintiff boarded the to Evidence. car, paid the usual fare and became a passenger thereon; that the seats and standing room were occupied, plaintiff being the last to board the car; that he stood with his back immediately adjacent to the door, which was at the front of the right side and was the only means of entrance and exit; that the car was under the control of one man, who stands at the front on the left side and is separated from the passengers by an iron railing; that the brakes and the door of the car were operated by an air lever, revolving on a dial, which controlled the closing and opening of the door and the setting and releasing of the brakes; that the car was moving behind an interurban car, and when the highest point on the bridge was reached the motorman threw off the power and coasted down the incline at fifteen miles per hour; that while so coasting he engaged in conversation with one or two girls, took down his pencil and trip sheet and was in the act of recording some figures when someone shouted "look out;" that the motorman looked up, became excited, dropped the pencil and trip sheet, grabbed the lever and suddenly threw it entirely around, which caused the door to open very quickly and at the same instant the cars collided; that by the impact plaintiff was hurled backward through the open doorway, striking the small of his back and head against a large steel beam of the bridge; that the car was stopped by the collision, and plaintiff either got back on or was helped on, and after a brief interval, the car proceeded to the terminus; that plaintiff left the car and walked to 5th and Wyandotte, where he was assisted into a jitney bound for Kansas City, Kansas, where he resided; that as a result of his injuries he became afflicted with traumatic neurasthenia or nervous exhaustion, resulting in melancholia, headaches, sleeplessness, loss of weight, loss of memory and loss of sexual power.
The evidence for the defendant tended to show that while there was a rear end collision the door was not opened by the motorman or anyone else; that it remained closed during the time the car was on the bridge, and that plaintiff neither fell through nor was thrown through the open doorway, but remained on the car until it reached its terminus.
Clearly, under the evidence for plaintiff a submissible case was made under assignments 1 and 4. The contention is overruled.
II. Defendant assigns error upon the giving of plaintiff's Instruction 1. This calls for a consideration of the assignments of negligence in the petition, as follows:
"1. . . . And while defendant's car was moving at a much greater rate of speed than was the said interurban car, said defendant's car suddenly crashed into and collided Variance. with the rear end of said interurban car, at which time or immediately prior thereto, and without the knowledge of plaintiff, and without any warning to him whatever, the motorman on said defendant's car negligently opened said door, causing plaintiff, when said collision occurred, to be hurled out of said car through the doorway thereof, striking his head, shoulders, back and legs violently and with great force against a large steel or metal post, brace or girder of said bridge, then and there injuring plaintiff in a manner hereinafter set out.
"2. That defendant's said car was equipped with a mechanical device which operated to open said car door when the brakes on said car were set, and to close said car door when the brakes on said car were not set, with which mechanical device and its operation plaintiff was not familiar, and did not have any knowledge thereof at the time he was so injured. That defendant was negligent in maintaining such mechanical device on said car.
"3. That the motorman, whose name is unknown to plaintiff, in charge of said car, being then and there the agent, servant and employee of defendant, was grossly careless and negligent in the operation of said car, that is to say, that he drove it at a high, excessive and dangerous rate of speed, to-wit, about twenty-five miles per hour.
"4. That said motorman knew or by the exercise of ordinary care and prudence should have known that there was another car ahead, as aforesaid, and that unless he checked the speed of defendant's car at the proper time, it would crash into the rear end of said interurban car and in failing to use such care and prudence he did conduct and negligently run into and collided with said car ahead."
Plaintiff abandoned assignments 2 and 3, and the case was submitted on assignments 1 and 4 in plaintiff's Instruction 1, which is as follows:
"The court instructs the jury that if you find and believe from the evidence that the plaintiff herein was on or about January 23, 1919, at about 4:30 or five o'clock, the afternoon of said day, a passenger on one of the defendant's cars being conveyed by the defendant across the bridge which spans the Missouri River from North Kansas City to Kansas City, Missouri, and while a passenger thereon, the said car, while being operated by a servant and employee of said defendant, if you find it was so operated, was carelessly and negligently permitted or allowed to approach, overtake, strike and collide with another and larger car on the same track ahead, if you so find, and that at the time or immediately before striking and colliding with the said car ahead, the servant and employee of the defendant in charge of its said car carelessly and negligently opened or caused the door of the car upon which plaintiff was riding to be opened, if you so find, and as a result of such carelessness and negligence on the part of said servant and employee of the defendant, if you so find that he was careless and negligent, as aforesaid, the plaintiff was violently hurled or thrown through the doorway of said car and struck his head and back on or against a large steel or metal post, brace or girder of said bridge, and if you further find as a direct result thereof, his back was wrenched, sprained, twisted or bruised, his nervous system was shocked and injured, if so, and that as a further result he received injuries to his spine, muscles and nerves of his back resulting in a condition of traumatic neurasthenia, if you so find, and if you find from such condition of traumatic neurasthenia, if any you so find, he is now and has been in a condition of melancholy, despondence and depression, that he tires easily, that he has frequent headaches, that he has suffered a loss of memory, and that he has lost his sexual power or any of such results, if you so find, then your verdict should be given for the plaintiff."
(a) Defendant contends "the instruction is at variance with the petition as to negligence."
The allegations in the petition as to negligence are not carefully drawn and are scattered and disconnected. Assignment 1 contains a general charge of negligence as to the collision, but this general charge is coupled with a specific charge that the motorman negligently opened the door. Assignment 4 charges the collision was caused by the negligence of the motorman in failing to check the speed of the car. These allegations should be taken together, and when so taken make the assignments of negligence charged to have caused the injuries. As stated, assignment 1 also contains a specific charge of negligence, in that the motorman negligently opened the door. Coupled with this is the statement that the door was opened without a warning to plaintiff and without his knowledge. The knowledge of plaintiff that the door was to be opened would not excuse the negligence of defendant, if any, in opening the door. If plaintiff had known the door was to be opened, he might have been charged with a duty to protect himself. It is not claimed defendant warned plaintiff the door was to be opened or that he knew it was to be opened. In fact, defendant denied the door was opened. Therefore, we hold the statement of want of knowledge and failure to warn were no part of the charge that the defendant negligently opened the door. The petition considered as a whole contains no general charge of negligence. Plaintiff's injuries are alleged to have been caused by the opening of the door and the failure to check the speed of the car.
The instruction required the jury to find that the motorman negligently permitted or allowed the car to approach, overtake, strike and collide with the other car. This is equivalent to requiring a finding that the motorman negligently failed to check the speed of the car. The instruction does not follow the exact language of the petition but the meaning is the same. In addition, the instruction required the jury to find that the motorman negligently opened the door; and if the jury found as a result of the negligence aforesaid plaintiff was injured, then the verdict should be for the plaintiff. Thus, it appears the negligence submitted by the instruction was the specific acts of negligence charged in the petition. Even if the instruction had been too general under the pleadings, it does not follow that the case should be reversed for this reason, for the proof covered only the specific matters complained of in the petition and "the jury had before it no other negligent act to consider." [Riley v. Independence, 258 Mo. l.c. 683, 167 S.W. 1022.]
(b) Defendant insists it is assumed in the instruction that it was negligence to use the particular device to operate the car. We do not so understand the instruction. Negligence is assigned in maintaining the device by which the door and brakes were controlled, but there was no proof of that allegation. Inquiries were made with reference to what the motorman did at the time the door was opened, but this was with reference to the operation of the device.
(c) Defendant contends that the instruction by the expression "and that he has lost his sexual power" submitted the issue of permanent loss of sexual power when there was no evidence of such permanent loss. Defendant used the exact expression in its given Instruction E, submitting the question of loss of sexual power; therefore, it is in no position to complain of the error, if any. We cannot convict the trial court of error under the circumstances.
(d) Defendant contends that the expression "of any such results" in the instruction is not limited to the causes set out in the instruction. We do not so construe the instruction. The expression refers and is confined to the results just before mentioned which depend upon the hypothesized condition of the traumatic neurasthenia caused by the injury.
The contentions are overruled.
III. Defendant assigns error upon the refusal of its Instruction II, as follows:
"The court instructs the jury that the evidence in this Loss of case is not sufficient to permit the jury to find that Sexual the plaintiff has lost his sexual power, and you cannot Power. allow him any damages on account of his claim of loss of sexual power."
Plaintiff testified he was twenty-seven years old, married and the father of a child two years old; that since the collision he was unable to perform the sexual act. The physicians testified that he was afflicted with traumatic neurasthenia, and further testified that such a condition could cause the loss of sexual power. The contention is overruled.
IV. Defendant assigns error upon the refusal of the court to permit Mrs. Penticuff and Mrs. Hardy to testify Miscarriage: that the wife of plaintiff was pregnant and Expert. thereafter suffered a miscarriage.
The wife testified that after the collision she became pregnant by plaintiff and suffered a miscarriage. These witnesses visited the wife during the time of the alleged pregnancy and after the alleged miscarriage. They were permitted to describe her appearance and condition and then give their opinion that she was pregnant. Mrs. Hardy was not asked to give an opinion on the question of miscarriage. Therefore, all that is left of this assignment is the refusal of the court to permit Mrs. Penticuff to testify on the question of miscarriage. She was not present when it is claimed the wife suffered a miscarriage, but visited her thereafter. She was permitted to testify at length as to the physical appearance and condition of the wife and as to what she did toward giving her relief. A nonexpert witness may testify to all such matters. [Elliott v. Ry., 157 Mo. App. l.c. 522, 138 S.W. 663.] The witness was the mother of four children and had suffered a miscarriage and had attended a sister who had suffered a miscarriage. It is the contention of defendant that these experiences qualified the witness to give an opinion on the subject. The question is not within the range of the ordinary witness. It is not so claimed by the defendant. By undertaking to qualify the witness, the defendant admits the necessity of qualification. To hold the witness was qualified to diagnose the case would, in effect, be holding that special skill was not required of a witness before qualified to give an opinion on questions involving technical knowledge. The so-called qualification of the witness discloses that she could only testify. "I suffered a miscarriage and the wife's symptoms were like mine." [Gray v. Brooklyn Ry. Co., 175 N.Y. 449.] The contention is overruled.
V. Defendant assigns error upon the admission of the testimony of Dr. Faust, a witness for plaintiff concerning the condition of plaintiff's prostate gland. After the examination on Untimely the question had proceeded for some time, the Objection. defendant objected for the reason the inquiries were "wholly outside the allegations of the petition." Objection was overruled for the reason that it was not timely. The court ruled correctly, and the contention is overruled.
VI. Defendant assigns error upon the admission of the testimony of plaintiff, that after the collision there was a Seminal discharge from his penis. The contention rests on the Discharge. following testimony of plaintiff:
"Q. Now, during this time, did this discharge continue?
"MR. CRANE: Just a moment. I want to preserve an objection to that. It is outside of any allegation in the petition.
"MR. PEW: It is the proof of the loss of manhood, and necessarily the hypothetical question would be to that effect. We are not suing for anything he lost in that respect, you understand, but that is the evidence of the injury.
"MR. CRANE: Well, I object to it, because it is simply a plain proposition, that it is not a thing necessarily that would inevitably flow from anything sustained there, in the way of physical injury.
"THE COURT: Do you expect to supply testimony to show the connection of this symptom with the allegation?
"MR. PEW: Yes, sir, that is the foundation of the doctor's testimony. We have several of them who will testify as to the man's condition.
"THE COURT: You may proceed on that condition."
To which action and ruling of the court, the defendant, by its counsel, then and there at the time duly excepted and still excepts.
"MR. PEW: Q. State whether or not this condition of soiled clothes continued? A. It continued for some (time), and I haven't noticed it right recently.
"Q. But during the time you were going to Doctor Perkins, that six weeks? A. During that time I was going to Dr. Perkins, my clothes was soiled practically all the time."
Testimony of the discharge of semen was previously in the record without objection, as follows:
"Q. And state whether or not you noticed any discharge from your penis, after this accident? A. I did. My clothes was soiled and I mentioned it to the doctor. I mentioned to the doctor about it.
"MR. CRANE: Never mind, about that — if Your Honor please —
"MR. PEW (interrupting): Why no, a man has a right to tell a doctor his symptoms.
"THE COURT: Sustained. That part of his answer pertaining to his conversation with the doctor is sustained.
"MR. PEW: Q. When did you first notice this, Mr. Morris, about this soiled clothing? A. Well (witness hesitates) it was when I first commenced going over there, getting over town, or — yes, when I first commenced to going over there, then I noticed my — well. I noticed the soil there, and when I went to the doctor I asked him about it."
It will be noted that counsel for plaintiff promised to later introduce testimony tending to show that the discharge could follow the injury resulting from the collision. It is admitted that counsel failed to do so. Previous to the objection made by defendant to this testimony, plaintiff had testified with reference to a discharge from his penis. Defendant's counsel now contends he undertook to object to these previous questions, but was interrupted by the court and counsel for plaintiff. The record does not sustain this contention. It is clear counsel for defendant was attempting to object to plaintiff's stating what he had told his doctor. Before counsel completed the objection the court understood and sustained the objection. Thereafter the inquiry proceeded without objection. Finally defendant did object. In defendant's brief in Division his counsel did not claim that he attempted to make an objection to the testimony, but claimed that he objected "when plaintiff sought to show that he had a continuing discharge from his penis." Whatever may have been the intention of counsel for defendant, the fact remains that the plaintiff testified, without objection, that after the collision he suffered a discharge from his penis. This testimony being properly before the jury, we do not see how a continuation of the examination could have been prejudicial to the defendant. The fact that counsel for plaintiff neglected to connect the discharge with the injury could in no way alter this conclusion. The contention is overruled.
In this connection defendant directs our attention to the evidence with reference to the loss of sexual power. The evidence tended to show that neurasthenia could cause loss of sexual power, and the condition of plaintiff's prostate gland was such that it could also cause such loss. Defendant contends there is no evidence from which the jury could infer that the condition of the gland was the result of the collision. In this situation it is argued that "inasmuch as one cause would make liability and the other not, it was erroneous to submit the question." In other words that "the state of the evidence is such as to leave the question to be determined only by conjecture or surmise." If the subnormal condition of the gland existed before the collision, it could not be said to have contributed to the loss of sexual power, for before the collision the plaintiff could perform the sexual act. The evidence tended to show that before the collision plaintiff was a vigorous, healthy man. The jury could so find and could further find that before the collision his gland was normal. After the collision if the gland was found to be subnormal, the jury could infer that the injuries received in the collision caused the subnormal condition of the gland. Therefore both causes "would make liability," and the question was not left to conjecture. The evidence tended to show the condition of the gland could be attributed to diseases but there was no evidence that plaintiff was or had been afflicted with any such diseases.
VII. Defendant assigns error in permitting Dr. Faust to answer the hypothetical question with reference to Hypothetical plaintiff's injuries. It is claimed the doctor Question. based his opinion upon a history of the case as related to him. The question is based on his experience as a physician and his examination of the plaintiff. No reference is made to a history of the case, and the contention is overruled.
VIII. Defendant assigns error upon the argument of counsel for plaintiff. This assignment is not for review for no Argument. exceptions were taken to the argument.
IX. The verdict is claimed to be excessive. At the time of the collision plaintiff was twenty-seven years old, with an expectancy of thirty-eight years, and earning $130 per month. He was in good health and vigor. The evidence tended to Verdict. show that as a result of the collision he was afflicted with a severe case of traumatic neurasthenia and a loss of sexual power. He lost several weeks' time, and thereafter performed different kinds of work at an average reduction of one-third in wages. At the time of the trial, four years after the injury, a physician, called by plaintiff, testified he noticed only a slight improvement in his condition, but also testified this litigation would tend to retard his recovery. None of the physicians testified his nervous condition was permanent. The evidence if any, as to permanent loss of sexual power was meager. The trial court held there was no such evidence. There was no injury to the genital organs, and the plaintiff did not take the stand in rebuttal of the testimony of his former wife. Under the circumstances the jury could well find that plaintiff suffered a temporary loss of sexual power and a severe injury to his nervous system. The alleged loss of sexual power was the issue most bitterly contested. Naturally, this would attract the attention of the jury. From the whole record we are convinced the jury treated the loss of sexual power as permanent. All things considered, we think $12,500 is adequate compensation for the injuries suffered. If plaintiff will, within ten days, enter a remittitur in the sum of $7500, the judgment will be affirmed for $12,500 as of the date of the judgment of the circuit court: otherwise the judgment will be reversed and the cause remanded. All concur.