(273 S.W.) He testified over defendant's objection (on or could have caused plaintiff's condition," the ground already stated) that when the plaintiff came to him she complained of pain in her head, eye, and ears, and of dizziness and sleeplessness, and he testified as to what he found, upon examination. Counsel for defendant assert that the witness was violating the laws of the state in treating or "adjusting" the plaintiff, in that he was practicing medicine without a license from the state board of medical examiners, and cite State v. Smith, 233 Mo. loc. cit. 260, 135 S. W. 465, 33 L. R. A. (N. S.) 179; O'Bannon v. Wydick, 281 Mo. 481, 220 S. W. 853, and State v. Gardner (Mo. App.) 231 S. W. 1057. These cases sustain that assertion, but neither the issues in those cases, nor what was held, are closely pertinent or decisive of the question here in issue. Counsel further argue that permitting, the witness to testify "as a layman," and to give what amounted to a medical diagnosis of plaintiff's alleged ailments, was error, in that it was opinion and hearsay evidence, and upon this cite Norris v. St. Louis, I. M. & S. R. Co., 239 Mo. loc. cit. 711, 144 S. W. 783, and Atkinson v. American School of Osteopathy, 199 Mo. App. loc. cit. 270, 202 S. W. 452. These cases announce the general rule that a lay witness will not be permitted to attempt a diagnosis, or express a mere opinion as to the health of a party. We have fully indicated above the nature and extent of the testimony of witness Dorn. He was not asked for an opinion as to what might or could have caused plaintiff's injury, nor was he permitted to say what plaintiff told him, nor what was her ailment, more than that he found subluxation of the verterbra nearest to the skull, and then to say that subluxation of that vertebra causes pressure upon the nerves leading to the brain, face and skull. The technical and somewhat formidable word "subluxation," as applied to one of the bones forming the human spine means no more than a partial or incomplete dislocation of such a bone. We are of the opinion that a person who has made a special study of the human spine, followed by several years of experience in detecting and attempting to adjust "subluxation" of vertebrae, has shown such special knowledge of that subject as qualifies him to testify as to the condition or relative position of a vertebra found upon a direct physical examination. In that particular he has acquired, by technical training and practical experience, and special knowledge not shared by men in general. 17 Cyc. 36. We find no error under this assignment. and that his answers were not based upon personal knowledge or objective symptoms, but solely upon the history of the injuries as detailed to him by the plaintiff, and upon this the recent decision in Kinchlow v. Kansas City, K. V. & M. R. Co. (Mo. Sup.) 264 S. W. 416, is cited. However, the facts in the record do not present the basis of the claim made by defendant, nor bring this case within the Kinchlow Case. The testimony of and for plaintiff tended to show that she was unconscious for 10 days or more after the injury and while in the City Hospital; that her injury was diagnosed as concussion of the brain, and perhaps fracture of the base of the skull. In his testimony Dr. Hoge first testified to the appearance of the plaintiff upon the occasion of his first examination; that she presented the appearance of a person who was ill; that she was unsteady in her movements; that, though a warm day, her hands and feet were cool, and her perspiration cool, her pulse rapid and not strong and her blood pressure low. He then said he first took her history, "a description of what she had been through, and how she had been feeling as a part of the examination," and then without stating what plaintiff told him, proceeded to tell what he found upon examination. He said that she was unable or did not stand on one foot; that there was a drooping of the right upper eyelid as compared with the left, the lid on the right side lagged behind the other in ciosing or opening the eyes; that the right side of the face did not contract as strongly as the left, and there was a dropping of the right side of the face and right angle of the mouth; that in showing her tongue it did not come out straight, and pointed somewhat to the right; that all of plaintiff's tendon reflexes were increased, those on the right side were more than those on the left; that then, and on several examinations afterward, he "obtained partially what is called a Babinski reflex in the toes of the foot," that is, a reverse of the normal movement; that in "injuries to the motor tract of the nervous system, extending from the brain down to the spinal cord, there is a tendency for these to be reversed." He further testified that he weighed the plaintiff upon several оссаsions, and that her weight varied from 87 to 95 pounds, which was below normal, and that he tested the hearing distance of the plaintiff's ears, and found the hearing distance of the right ear only half or less than half that of the left. He further stated that the slow contractions, the drooping of the right eyelid, and the pointing of the tongue to the right, he called a partial paralysis of the right side of the face. [5] III. The defendant assigns error in admitting certain testimony given by Dr. Hoge, a specialist in nervous diseases, who first examined the plaintiff about four months All of this testimony went in without obafter the date of her injuries. The com- jection on the part of defendant. The witplaint as made is that Dr. Hoge was permit-ness was then asked the following quested to give his opinion as to what "might tion: "Q. Now, Doctor, state whether or not a concussion of the brain, caused by a fall, so as to render the patient unconscious for a period of 10 or 12 days, if that would cause it-might or could that have caused that?" Defendant objected to that as being an invasion of the province of the jury, and, the objection being overruled, the witness answered that it could. Later on, the like question was again asked, stated as follows: "Assuming that she was thrown from the street car and fell to the pavement, rolled to the curb, and did receive a concussion that rendered her unconscious for a period of 10 or 12 days, would the conditions you found present at your examination, and that which the plaintiff in this case was suffering from, could that be caused by such a concussion? Might or could that be caused?" There was again the objection that there was an invasion of the province of the jury. In Kinchlow's Case, there was a dispute in the testimony as to whether the plaintiff had received a blow upon the head. In that case, the medical witness, in his answer as to the cause of the plaintiff's alleged injury, had answered: "The blow upon the head caused that." He further said that in making his examination he had obtained a history of the case, and had taken that into consideration in making his answer. There is not such a situation under the record in this case. [6] IV. The defendant assigns error in admitting the testimony of Dr. Hoge and of Dr. Ferris, in permitting them to state whether the condition might or could result from the injuries, urging that this gave the jury a "roving commission," and enabled them to return a verdict upon mere speculation, citing in support thereof O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55. The testimony of Dr. Hoge has been referred to. Dr. Ferris, who was a physician in the City Hospital, examined the plaintiff within a few hours after she was injured. He testified to abrasions about the face and head of the plaintiff and to her state of unconsciousness, which continued for several days. His diagnosis, from examination and a period of 3 or 4 weeks, was that there was a fracture of the floor of the skull, where the spinal vertebræ connect with the skull, and he said that with every skull fracture there is concussion. He testified that there was a rupture of plaintiff's ear drum, and that the middle ear became infected; also that rupture of the ear was common where there was basal skull fracture. The witness testified, in answer to questions, that the fracture and dislocation of vertebra might or could have been caused from a blow upon the head; that rupture of the ear drum could be caused from traumatism, a blow upon the head; and that rupture would specialist in diseases of the ear, who examined the plaintiff one year after her injuries, and who testified that in his opinion the condition of plaintiff's right ear was probably not due to the accident, but to other causes existing prior to the accident. He based this in large part upon the statement of the plaintiff that her ear began to discharge about two weeks after her injury, and his theory was that, if the rupture was caused by the fall, discharge from the ear would have appeared earlier than two weeks. In O'Leary's Case the cause of an infected bone in the arm of the plaintiff was said to be “practically the whole case," so far as recoverable damages were concerned. In that case the respondent had received an injury to his thumb. Afterward there was a boil on his wrist and later an infection of the bone of his arm. The contentions were stated (303 Mo. 372, 260 S. W. loc. cit. 58): "Respondent contended the thumb injury caused the bone infection, and this caused the appearance of the boil. Appellant insisted the caused the bone infection. There was expert boil was not caused by the injury, but itself evidence offered for the purpose of supporting each of these theories." In that case it was remarked that the trial court had permitted the experts to testify for respondent "that the injury to the thumb caused the infection and disease of the bone." This was assigned as error. It was said that its admission under the rule then (theretofore) favored by the decisions of this state was error. But, after a review of the authorities in this and other states, it was held that said rule was unsound. rule pronounced unsound, and not to be followed, was the rule confining the answer to a statement that the condition under the consideration "might or could" have resulted from the injury complained of. The underlying reason in O'Leary's Case was stated (303 Mo. 381, 260 S. W.-61): The "In the instant case the jury cannot, without expert testimony, get at the cause from the other evidence, because the evidence has no tendency to prove to the lay mind a relation of cause and effect. It could not logically find the cause from the expert testimony, if the rule in what might or could result from the injury, question is applied to restrict expert opinion to since that does not necessarily go further than a possibility, and a mere possibility does not satisfy the burden of proof." Further on it was said: "In fact, it makes no difference which expert witness the jury chooses to believe in this case. So far as they can tell from the nonexpert testimony, either cause might or could produce the result." In that situation the testimony of the experts for the respondent that the injury to the thumb caused the infection of his ulna (273 S.W.) there is no requirement that the jury, before assessing damages for loss of earnings, must find that such loss was the direct result of the injuries complained of. The instruction is not subject to that objection, and it is not identical, as defendant urges, with the instruction condemned in O'Leary's Case. In that case, the court pointed out, the loss of time and earnings of the plaintiff from the injury to his thumb was slight, unless the bone infection came from it, which was an issue of fact. The instruction there authorized recovery by the plaintiff for the loss of wages since his injuries, if any, not to exceed $3,300. The court then observed that the following clause in the instruction confined damages for future loss of wages to those which were "the direct result of such injuries, if any," but that there was no such limitation with respect to wages already lost; that is, under the instruction, the jury were authorized to find damages for the diseased condition of the bone, although the jury, in returning a verdict for the plaintiff on the ground that his thumb was hurt, might decide that the disease of the bone did not result from the injury to the thumb. That is not the condition in the instant case. Here the limitation applies generally and equally to whatever loss or damage the plaintiff may have sustained, if any, as the direct result of the negligence of the defendant. ready, this defendant's objection to the ques- earning $20 per week. It is objected that tion, in the trial court, was that it invaded the province of the jury. The objection urged here is that it gave a commission to the jury to rove through the evidence and render a verdict on mere conjecture, and on the theory that there was no positive evidence before it as to the cause of plaintiff's condition. The evidence has been sufficiently stated. Defendant, as to the physical acts resulting in plaintiff's fall and injury, proceeded upon the theory that she stepped voluntarily off the platform of a moving car into space," or that she deliberately walked off, in a manner which caused her body to pitch forward onto a paved street, coming to rest only when her head came to the curb, 10 or 12 feet away. This, with the long state of unconsciousness shown to have followed, and the testimony as to the conditions observed by the examining physicians, and testified to by the plaintiff, distinguish this case from O'Leary's Case. In this case the jury upon the nonexpert evidence could readily believe that plaintiff had sustained injuries to the skull and concussion of the brain. · [7] Besides, the contention now of defendant upon this question is inconsistent with his contention and objection made in the trial. Then he urged that it was an invasion of the province of the jury; that is, determined the very question which the jury were to decide, that it was too definite. Now be urges that it is too indefinite; that the medical testimony that certain conditions "could or might be caused" by certain injuries was of no aid to the jury. In effect it is an effort to convict the trial court of error upon a theory in opposition to that of the objection urged upon that court. The contention cannot be allowed upon the facts in the record. [8] V. The defendant complains of instruction No. 2 given for the plaintiff on the measure of damage. The instruction is as follows: [9] Also, in this case, the court gave defendant's instruction 11, telling the jury that, if the rising and impairment of plaintiff's right ear was not the result of the accident in question, they should not find any damage therefor. It is further objected that the closing line of instruction 2 assumes negligence on the part of the defendant. We do not so regard it, taking the whole into consideration, and taking also into consideration the other instructions given, defining and requiring a finding of negligence as a prerequisite to recovery by plaintiff. [10] VI. It is insisted that the verdict, which was in the sum of $12,500, is grossly excessive. The testimony of Dr. Hoge has been sufficiently stated. He testified that in his opinion the partial paralysis of the face of plaintiff was apt to be permanent, and that the general condition or symptoms described might be permanent. Defendant introduced Dr. Will, who examined plaintiff about one year after her injury, whose opin "The court instructs the jury that, if you find the issues for the plaintiff in this case, you will, in determining her damages, take into consideration the mental and physical pain endured by her since her injury, and any consequences thereof, if any, the nature and extent of her injuries, if any, and whether or not they are temporary or permanent, the impairment of her earning capacity, if any, and not exceeding $20 per week, and find for her in such sum as in your judgment, under all the facts and circumstances in the evidence, will be a fair and reasonable compensation to her for whatever inju-ion was that there was no basal skull fracries she has sustained, if any, as a direct result of the negligence of the defendant." Upon this the decision in O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55, is cited, in the holding there made, upon the instruction given, and condemned in that case. The testimony of the plaintiff was that at the time she was injured she was ture, and in various aspects his testimony was in conflict with that of Dr. Hoge. The plaintiff testified that at the time of the trial her weight was 93 pounds, and that prior to the accident she weighed from 110 to 115 pounds and was in good health; that after her injury she suffered from headaches and extreme nervousness; that she had after the accident a slight attack of St. Vitus dance; that she suffered from pains in her back; that she was unsteady on her feet, and her hearing was affected, and her memory affected by the injury; that she had a smothering feeling when in a crowd. Her testimony tended to show an improvement in her condition in respect to recurrence of headaches and other pains, and ability to remember, and to work, but that her ear was in bad condition. At the time she was injured she was earning $20 per week as an addressograph clerk and mail clerk. As the result of her injuries she did only 2 days' work between March 2, 1921, the time of her injury, and September 1, 1921; that, beginning September 1, 1921, she worked 6 weeks at a salary of $10 per week, later was employed at intervals at not more than $15 per week by one or more firms, and on June 1, 1922, was employed by the Certainteed Products Company at $60 per month, which salary on August 1, 1922, was raised to $75 per month for full working time, and she was so employed at the time of the trial, in October, 1922. The defendant has cited several cases: Jones v. Frisco R. Co., 287 Mo. 64, 228 S. W. 780; Crockett v. Kansas City Rys. Co. (Mo. Sup.) 243 S. W. 902; Rigley v. Pryor, 290 Mo. 10, 233 S. W. 828; Corn v. Kansas City, C. C. & St. J. Ry. Co. (Mo. Sup.) 228 S. W. 78. Plaintiff refers to Laughlin v. Kansas City Southern R. Co., 275 Mo. 459, 205 S. W. 3; Page v. Payne, 293 Mo. 600, 240 S. W. 156; Gilchrist v. Kansas City Rys. Co. (Mo. Sup.) 254 S. W. 161; Crockett v. Kansas City Rys. Co. supra. It is not necessary to discuss these cases in detail, or others referred to in them. This case appears to have been well tried, and no unusual incident is shown to have occurred in the course of the trial, calculated to arouse the passions of the jury. We do not feel justified, upon consideration of the record, in reversing the judgment and remanding the cause unconditionally, but, in view of the improvement shown in the plaintiff's condition and earning power and of all the circumstances shown concerning the nature of her injuries, we are of the opinion that a remittitur should be required of a portion of the sum awarded. If, therefore, the plaintiff will within 10 days file a remittitur in the sum of $3,500, as of the date of the judgment, the judgment should be affirmed; otherwise, it should be reversed, and the cause remanded. SEDDON, C., concurs. PER CURIAM. The foregoing opinion of LINDSAY, C., is hereby adopted as the opinion of the court. All concur; WOODSON, J., in all except what is said about the O'Leary Case. (St. Louis Court of Appeals. Missouri. 1. Mortgages 319(3) - Evidence held to show defendant procured cancellation of his note and deed of trust by fraud. Evidence held sufficient to show that defendant procured cancellation of his note and release of deed of trust securing it by his wife's aged mother under circumstances amounting to fraud in law, entitling her to have release set aside. 2. Gifts 38-Concealment of material facts, effect of which is to perpetrate fraud, is ' "fraud" in law. donee takes undue advantage of donor, effect Concealment of material facts by which of which is to perpetrate fraud on donor, constitutes "fraud" in law, and gift will be set aside. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fraud.] 3. Gifts 49 (3)-Donee has burden of proving clearly and convincingly that donor delivered gift, intending to part with property therein. Alleged donee has burden of proving by clear. and convincing testimony that donor delivered gift, intending to forever part with property therein. 4. Gifts 47(3)-Release of deed of trust and gift of note secured thereby presumed void; burden on defendant to prove contrary. Where there was close confidential relation between defendant and his wife and wife's aged mother, there was presumption that mother's release of deed of trust on defendant's farm and gift to defendant of note secured thereby was void, and burden was on defendant to prove that transaction was fair and valid, and free from undue influence and fraud. 5. Appeal and error 1009 (1)-Chancellor's finding on facts held entitled to great deference on appeal. In suit to set aside release of deed of trust on ground that it was procured by fraud, chancellor's finding on facts based on oral testimony must be given great deference on appeal, though it must accord with appellate court's own view of record. not begin to run against suit on note until maturity of note. Statute does not begin to run against suit on note until maturity of note. 7. Limitation of actions 100(13)—Defrauded party held not charged with notice of record altered by defendant's fraud. Though parties to recorded instrument are charged with knowledge of contents thereof at time it was recorded, plaintiff, who stood in confidential relationship to defendant, was not lent alteration of record by filing release of charged with knowledge of defendant's fraududeed of trust procured by defendant's fraud, so as to set running 10-year limitation of Rev. St. 1919, § 1317. (273 S.W.) 8. Pleading ~433(2)—In absence of demurrer the defendant falsely and fraudulently, by challenging its sufficiency, petition held good after judgment. In absence of demurrer challenging its sufficiency, petition in suit to set aside deed of trust as obtained by fraud held good after judg ment. taking unfair advantage of her lack of education and in violation of the confidential relations existing between them, betrayed the trust and confidence reposed in defendant, and with intent to defraud her out of said debt the defendant obtained possession of Appeal from Circuit Court, Jefferson Coun- said note and deed of trust from her, and ty; E. M. Dearing, Judge. "Not to be officially published." Suit by Elizabeth Steffen against John Stahl. Decree for plaintiff, and defendant appeals. Affirmed. See, also, 266 S. W. 474. thereupon falsely, fraudulently, and with intent to cheat and deprive her of said debt, caused said note to be marked "Paid." And on September 23, 1913, the defendant fraudulently caused to be entered a pretended re lease of said deed of trust and cause the deed of trust to be canceled by the recorder, there Miller & Kleinschmidt, of Hillsboro, for by defrauding plaintiff out of the debt; that appellant. Clyde Williams, of Hillsboro, and Arnold Loewenstein, of St. Louis, for respondent. DAUES, P. J. This is a suit filed in the circuit court of Jefferson county on September 9, 1919, the purpose of which is to set aside the release of a certain deed of trust, recorded September 13, 1913, on the ground that such release had been obtained through fraud. Judgment was rendered in the lower court in favor of plaintiff, and defendant has appealed. no consideration was given for the cancel- that said representations were made solely for the purpose of deceiving and misleading and defrauding plaintiff out of the debt mentioned. Under the issues presented, it becomes ex-ulent, and known to him to be such, and pedient to set out the full effect of the pleadings. The petition alleges that defendant was on August 26, 1909, and still is, the owner of certain described real estate situated in said Jefferson county. It is then alleged that plaintiff lived with defendant and his wife at their home on a farm from about March 15, 1907, until February 17, 1919, at which time the defendant's wife, who was the plaintiff's daughter, died; that, after the death of defendant's wife, plaintiff continued to make her home with defendant until August 15, 1919., It is averred that plaintiff is an old lady, more than 68 years of age, being unable to read or write English, and is without education and entirely ignorant of business affairs; that she was under the complete influence and control of the defendant, and absolutely relied and depended upon him in all of her dealings with him. It is then charged that on August 26, 1909, the defendant induced plaintiff to lend him $1,300, and that she made him such loan, taking a promissory note for the amount, payable six years after date, and bearing interest at the rate of 3 per cent. per annum, and that defendant, together with his wife, to secure the payment of said note, executed a deed of trust upon the described property. Said deed of trust is dated August 26, 1909, and was duly recorded the next day. It is then alleged that plaintiff has received no part of the principal or interest of said note, and that the entire amount, with interest, is due and payable. The petition then alleges that The answer admits the relationship of the parties and the ownership of the property by the defendant, and alleges that plaintiff made her home with the defendant and his wife during the time alleged, and that defendant and his wife during her lifetime borrowed the sum of $1,300 from plaintiff, and executed the note and deed described in the petition, but denies the other allegations of the petition. For further answer it is alleged that during the period from March 15, 1907, to August 15, 1919, plaintiff lived with the defendant at his home as a member of his family; that during that time he maintained and supported her without cost to her, and that he paid interest on said note until September 19, 1913, as same fell due annually; that on September 19, 1913, plaintiff being still the owner of the note, in consideration of her continuing to live with the defendant, made a gift of the note to the defendant, certifying on same over her signature that she had received payment of same in full, and thereupon the defendant became The answer also the sole owner thereof. pleaded the five-year statute of limitation. The trial court, upon a submission of the cause, having heard the evidence as to the circumstances under which the note and deed of trust were executed, and the circumstances under which the parties lived to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |