author: BARRETT, Commissioner.

text:
    Raymond H. JOHNSON, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
    No. 49862.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied Jan. 13, 1964.

      Frank J. Rogers, Kansas City, Lynn M. Ewing, Jr., Nevada, Mo., for appellant.
    Everett Teel, Nevada, Mo., Sylvan Bru-ner, Pittsburg, Kan., Arthur C. Popham, Kansas City, for respondent. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   BARRETT, Commissioner.

This is the third trial and appeal of an action under the Federal Employers’ Liability Act and it is not necessary therefore to again detail the circumstances as the jury could and did find them. The testimony was substantially the same in all three trials and of necessity the railroad concedes, as the court held upon the first appeal, that in at least two particulars its liability was a jury question. Johnson v. Missouri-K.-T. R. Co., (Mo.) 334 S.W.2d 41; Johnson v. Missouri-K.-T. R. Co., (Mo.) 355 S.W.2d 32. It is sufficient here to say that the plaintiff Johnson was a member of a three-man maintenance crew consisting of himself, his fellow laborer Smeithers and his foreman Hamilton and that he claims to have been negligently injured near Kimball, Kansas, on October 17, 1957, while he and Smeithers at the direction of Hamilton were carrying a main line tie and attempting to load it on a motorcar. Upon this appeal the railroad contends that because of two prejudicially erroneous instructions and the court’s failure to sustain its challenge for cause of juror Wade it is entitled to a third new trial and, failing in that regard, urges in any event that the verdict is excessive.

Mr. Teel of Nevada, Missouri, was associated as local counsel with plaintiff’s Kansas City and Pittsburg, Kansas, counsel. In qualifying the jury it developed that 17 or 18 years ago Mr. Teel had represented Mrs. Wade and presently was engaged in handling her mother’s estate in which she was interested as a beneficiary. She said, however, in response to defense counsel’s inquiry that the fact of such representation would not cause her “to be influenced in favor of his side of the case.” Subsequently the court inquired of Mrs. Wade whether the fact of Mr. Teel’s representing her “and the other heirs” would “make any difference to you in deciding this case in accordance with the law and the evidence and to bring in a fair and impartial verdict, if you were chosen?” She responded, “I see no reason why it should.” Whereupon the court refused to sustain defense counsel’s challenge for cause. Mrs. Wade was stricken from the panel by defendant and eleven jurors returned a plaintiff’s verdict of $70,000.

It is now said that Mrs. Wade’s response to the court’s question was “evasive,” and that by reason of her relationship with Mr. Teel she was not qualified to sit as a juror and should have been excused “for cause.” In counties of 60,000 to 200,000 population the relationship of attorney and client within six months confers upon the opposing party “the right to challenge such juror for cause.” V.A. M.S. § 495.150. There is no such statutory-disqualification applicable to Vernon County jurors (V.A.M.S. § 494.190) but the appellant urges, nevertheless, that the disqualification should apply and that the court prejudicially erred in refusing to sustain its challenge of Mrs. Wade. It is not necessary to pursue this subject at length, the enumerated statutory disqualifications are not preclusive (Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505) and there would have been no abuse of discretion in the court’s sustaining the challenge. Hicks v. Simonsen, 307 Mo. 307, 270 S.W. 318; Privitt v. St. Louis-San Francisco Ry. Co., (Mo.) 300 S.W. 726. There are commanding instances, as the employer-employee relationship in Murphy v. Cole, but there is a discretion in the trial court and that court’s judgment will not be set aside unless there has been a manifest invasion of a fair trial. Strahl v. Turner, (Mo.) 310 S.W.2d 833, 69 A.L.R.2d 646; Moss v. Mindlin’s, Inc., (Mo.) 301 S.W.2d 761. Here there was full disclosure and in the absence of a specifically applicable statute “a juror is not absolutely disqualified because he is presently the client of an attorney for one of the parties.” Annotation 72 A.L.R.2d 673, 682, “Professional or business relations between proposed juror and attorney as ground for challenge for cause.” And see 31 Am.Jur. (Jury) Sec. 205, p. 173; 50 C.J.S. Juries § 221b, p. 961; Pioneer Construction Co. v. Schmidt, (Mo.) 192 S.W.2d 859. In short, in the circumstances of this particular record manifest abuse of discretion is not plainly apparent or demonstrated.

In the second trial Johnson submitted the railroad’s liability in a single-sentence instruction of over 800 words. Because the instruction was argumentative, too complicated and misleading the judgment was reversed. (355 S.W.2d 32). In this the third trial the railroad’s liability was submitted in two separate instructions. Instruction 1 submitted the hypothesis that the foreman directed Johnson and Smeithers to load two main line ties “of the weight of about 200 pounds” and that in carrying ties the distance involved here “there was then a long standing general custom of defendant that three sectionmen,” including the foreman if sectionmen were not available, “were usually and generally provided and used to carry and handle same,” that it was not safe for two employees and “that defendant failed to use ordinary care to furnish reasonably sufficient help in said task,” that the foreman knew of the custom and hazard and that while Johnson was thus helping to carry a tie (the second one) his body was suddenly and violently twisted and he was injured.

The appellant makes four specifications of error against this instruction. Space does not permit of a detailed recitation and analysis of the arguments, basically the appellant’s rather ingenious technique is to analyze the plaintiff’s pleadings, set forth in detail the proof and then assert that the instruction was prejudicially erroneous in not including all these numerous elements. As indicated it is not necessary to consider each of these claims in detail, they have all been considered and it is sufficient to dispose of this phase of the appeal to demonstrate by a single illustration the appellant’s basic contention. The appellant first states what it says was “the real point in issue,” the details of the manner in which Johnson and Smeithers picked up and were carrying the tie are set forth and it is said that each of these items of proof was not hypothesized or submitted as the proximate cause of plaintiff’s injury. It is asserted that plaintiff’s evidence established the weight of the tie to be 300 pounds, that the instruction omitted this fact and failed to require a finding “that plaintiff was in a strain from carrying the tie” and authorized a verdict upon a finding of a 200 pound tie. In this and other respects it is urged that the instruction erroneously authorizes “a verdict on a general finding of negligence and injury to plaintiff” rather than upon plaintiff’s specifically alleged and established circumstances.

As the appellant points out, there have been instances in which verdict-directing instructions were manifestly erroneous in their failure to hypothesize and submit both factually and in theory the precise circumstances relied on “the existence or nonexistence (of which) was a sharply contested issue.” Brainard v. Missouri Pacific Railroad Co., 319 Mo. 890, 898, 5 S.W.2d 15, 18; Lairson v. Kansas City Rys. Co., (Mo.App.) 232 S.W. 484. But as indicated it is not necessary to a disposition of this appeal to examine in detail each of the complaints and demonstrate that singly or in their totality they are not well taken. The plaintiff was not conclusively bound by either his pleading or proof to a tie weighing 300 pounds. The allegation was helping carry a tie of “approximately 200 pounds or more,” and even though Johnson once said, “(j)ust glancing at it there,” it weighed “around 300 pounds,” he and others repeatedly said “approximately two hundred pounds.” The defendant claimed that there was no such “occurrence” as Johnson described, in short the railroad’s contention was that he was not injured either accidentally or negligently on the occasion or in the manner claimed by the plaintiff and his witnesses and that was the crucial issue in this case and throughout all three trials. But as to the basic theory of recovery and in answer to the appellant’s objection to instruction 1 it is only necessary to note the following from the opinion in the first appeal: It was held in the first place, in so far as instruction 1 is concerned, that “the evidence was sufficient to warrant a submission of negligence in doing this work with an insufficient number of workmen. * * * As noted, plaintiff had evidence that it was the usual custom and practice to use three men to carry and load main line ties for such distance as was required in this case. Plaintiff also had evidence that more than two men were required because the tie being carried when plaintiff was injured was larger and heavier than the average main line tie.” Or, in conclusion as to this phase of the instruction, the court said, “Plaintiff’s evidence would have warranted the submission of either the theory that it was the usual custom and practice to use three men for carrying and loading all main line ties and that using less was not a reasonably safe method of work; or the theory that defendant through its foreman knew or in the exercise of ordinary care should have known that the second tie to be loaded was an unusually large and heavy tie and for that reason required more than two men for reasonable safety in loading it.” 334 S.W.2d 1. c. 46. Instruction 1 was patterned after and followed these suggestions. The testimony was substantially the same upon this and the former trials and further demonstration is unnecessary to indicate that the instruction was not prejudicially erroneous in any of the respects now urged. Timmerman v. Terminal Railroad Ass’n. of St. Louis, 362 Mo. 280, 293, 241 S.W.2d 477, 483; West v. Kurn, (Mo.) 148 S.W.2d 752, 755; Brock v. Mobile & Ohio R. Co., 330 Mo. 918, 51 S.W.2d 100.

Employing the same technique and relying for the most part on Hawley v. Lusk, (Mo.App.) 184 S.W. 1173, it is urged that instruction 2 was prejudicially erroneous in that it too submitted the violation of a custom that when two men were carrying a tie they would “co-ordinate their movements and one would warn the other if he undertook to change his hold and shift the weight of a tie.” It is said that the instruction submits this custom “con-junctively” with the act of Johnson’s coem-ployee Smeithers “in suddenly and violently pushing the tie against plaintiff,” and in these respects “includes an erroneous statement of law.” Here it is not necessary to even illustrate, it is sufficient to again quote from the opinion in the first appeal: “As to defendant’s contention that liability cannot be based on Smeithers’ failure to warn, because he did not have time to do so, we consider this to be a jury issue. Plaintiff and Smeithers disagreed on whether there was a practice with respect to giving a warning when a man was about to shift or change his hold on a tie.” And finally, applicable to this particular instruction: “Our conclusion is that the jury reasonably could find that a warning could and should have been given by Smeithers before he undertook to change his handhold and that failure to do so was negligence.” 334 S.W.2d 1. c. 45. Whether a custom is “substantive” in character or only “evi-dentiary” the plaintiff was not required to submit every specified act of negligence charged or shown by some testimony (Timmerman v. St. Louis Architectural Iron Co., 318 Mo. 421, 436, 1 S.W.2d 791, 797) and it is not claimed that there was no evidentiary support for any of the hypotheses of the instruction. Hamilton v. Ross, (Mo.) 304 S.W.2d 812, 815-816; Mitchell v. Wabash Railway Co., 334 Mo. 926, 69 S.W.2d 286. In any event, instruction 2 was not manifestly erroneous for the ultimately assigned reason that it “includes an erroneous statement of the law.”

On the first trial there was a verdict of $45,000, on the second trial a verdict of $30,000, and the essentially meritorious question on this appeal is whether after a trial court remittitur of $10,000 from a $70,000 verdict the award of $60,000 is nevertheless excessive and necessarily subject to a further reduction. As with liability the defendant contended and its medical proof tended to show that there was no injury, but the plaintiff’s evidence was that he sustained, as indicated, a negligently inflicted injury, that the injury was permanent and that he was totally disabled in so far as heavy labor is concerned. There has been medical expense of $1,450, a loss of earnings of approximately $250 a month or in the six years since October 1957 special damages approximating $18,000. It is not necessary to detail the medical testimony, it is sufficient to say that his injury as the jury necessarily found it involves a disk. A general practitioner who saw Johnson, he says on more than 100 occasions, came to the final diagnosis of “a ruptured intervertebral disk, sometimes known as a disk syndrome.” This doctor found some atrophy, possibly a quarter of an inch in the calf of the left leg and three-quarters of an inch in the thigh. An orthopedist who saw Johnson on three occasions, 1958, 1959, 1962, found by X ray “a spondylolisthesis which actually is a displacement of the vertebrae so that they are not in line.” This doctor found some atrophy in the buttocks but his final diagnosis was “clinical symptoms of a ruptured disk.” This doctor “originally” felt that there should be a “stabilization of his back and an unroofing of the spinal canal” which would stabilize the fifth lumbar and first sacral vertebrae and “relieve some pain” even though he would not be “a hundred per cent recovered.” Finally, this witness said, “I say he has pressure on the nerves. To me, this man may or may not have a disk, that’s right, but he has the pressure.” Another plaintiff’s witness, a chiropractor, found the fourth lumbar vertebra to be “subluxated, or tilted with the transverse inferior.”

Johnson is now 43 years old, he is six feet one and at the time of his injury and now weighs 230 pounds. Throughout, according to the plaintiff and his witnesses, there has been pain but his sole and basic injury is what for the lack of a more accurately descriptive term may only be called a diagnosed ruptured disk, perhaps that is what the orthopedist means by “clinical symptoms.” There has been no myelogram and it has not been conclusively demonstrated that there is in point of irrefutable fact a ruptured disk between the fifth lumbar and first sacral vertebrae.

The first disk case in this court was Hayes v. Wabash R. Co., 360 Mo. 1223, 233 S.W.2d 12, in 1950. There as here there was only a diagnosis of a ruptured disk between “the fifth lumbar vertebra and the sacrum.” The plaintiff was a brakeman, age 40, the trial court had required a remittitur of $10,000 from a $55,000 verdict and this court required a further reduction of $7,500 to a final award of $37,500. In 1952, in Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42, the plaintiff, 46 was a fireman, there was a myelogram, and two ruptured disks were surgically removed, the one at the fourth lumbar being larger than the one at the fifth. The nature and extent of the.plaintiff’s injury and disabilities were considered at length, the cases to date were examined and again, after a $10,000 re-mittitur by the trial court from a $55,000 verdict,-a further remittitur of $7,500 was required. In Van Norman v. Illinois Central Railroad Co., (Mo.) 320 S.W.2d 512, the plaintiff railroad worker was 28, ruptured disks between the 3rd, 4th and 5th Vertebrae were surgically removed but a verdict- of $62,400 was reduced to $47,400. In thé same year, 1959, in Beard v. Railway Express Agency, Inc., (Mo.) 323 S.W.2d 732, “(b)y operative surgery the fibrous neural arch, including the small detached lamina,' was excised and the impingement upon-'ithe nerves to some extent decompressed,” and there was “a permanent defect?’ after maximum improvement. The plaintiff was 54, there was a loss of wages of $10,500, the trial court required a remit-titur of $20,000 from a $68,000 verdict but this court required a further remittitur of $10,000. Most recently, 1962, in Chambers v. Missouri Pacific Railroad Company, (Mo.) 356 S.W.2d 64, the ruptured disk cases (all railroad cases under F.E.L.A.) with their attendant disabilities and losses were all collected and reviewed. There the plaintiff was 42 and had an expectancy of over 31 years and his disability as a heavy equipment operator was said to be permanent. In that case there was also a mere diagnosis of “a herniated cervical disc at the level of C-5 — C-6 on the right.” The trial court required a remittitur of $5,000 from a verdict of $43,000 and this court “in view of the precedents” declined to require a further remittitur from the final judgment for $38,000.

In again reviewing the relevant cases it is not necessary to restate the rules governing remittitur practice in this jurisdiction and set forth all the factors involved, the most important principle from this court’s standpoint in connection with compensation for negligently inflicted injury is “reasonable uniformity of awards.” Van Norman v. Illinois Central Railroad Co., Mo., 320 S.W.2d 1. c. 517. Even after making allowance for the established special losses and with all deference after the reduction required by the trial court, all the factors considered the $60,000 judgment is manifestly excessive by $15,000. If, therefore, plaintiff will remit $15,-000 within fifteen days, the judgment will ;be affirmed as of the date of its rendition for $45,000; otherwise the judgment will be reversed and the cause remanded for a new trial.

STOCKARD, C., concurs.

PRITCHARD, C., not participating.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    Clyde HARRIS, Administrator of the Estate of Alma Harris, Deceased, Plaintiff-Appellant-Respondent, v. Ernest (Pete) GOGGINS, Charles Louis Woodruff, Banks Ray, Sr., Banks Ray, Jr., d/b/a Nashville Produce Company, Raymond Caldwell and David Caldwell, Defendants-Respondents, Ernest (Pete) Goggins, Defendant-Appellant.
    No. 50006.
    Supreme Court of Missouri, En Banc.
    Dec. 9, 1963.
    Rehearing Denied Jan. 13, 1964.

      Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for appellant Ernest Gog-gins.
    McClintock & Medley, Charles W. Medley, Flat River, for respondent Clyde Harris.
    Roberts & Roberts, J. Richard Roberts, Farmington, for respondents Charles Louis Woodruff, Banks Ray, Sr., and Banks Ray, Jr.
    Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents Raymond Caldwell and David Caldwell.
   HOLMAN, Judge.

Clyde Harris, administrator of the estate of Alma Harris, filed this suit to recover damages for personal injuries sustained by Alma Harris during her lifetime as a result of the alleged negligence of the defendants. Defendants were Ernest (Pete) Goggins; Charles Louis Woodruff; Banks Ray, Sr. and Banks Ray, Jr., doing business as Nashville Produce Company; Raymond Caldwell and David Caldwell. The trial resulted in a verdict in favor of plaintiff and against defendant Goggins in the sum of $5,500, and against plaintiff and in favor of all other defendants. Defendant Goggins appealed from the judgment in favor of plaintiff, and plaintiff appealed from the judgment in favor of the remaining defendants. These appeals were properly taken to the St. Louis Court of Appeals. While that court gave the appeals separate numbers, they were properly disposed of in one opinion.

The court of appeals filed an opinion on December 18, 1962, in which “[t]hat part of the judgment of the court below which was entered in favor of the plaintiff against defendant Goggins in the sum of $5500 is reversed and the cause as to said defendant is remanded with directions to permit plaintiff to amend his petition in the respect indicated in this opinion and if he does so to have a retrial on all issues as to said defendant. The judgment in favor of all other defendants is affirmed.” Harris v. Goggins, Mo.App., 363 S.W.2d 717, 736.

On December 29; 1962, defendant-appellant Goggins filed a motion for rehearing or in the alternative to transfer to the supreme court. No motion for rehearing or to transfer was filed by plaintiff-appellant. On January 25, 1963, the court of appeals filed a per curiam opinion in which it discussed plaintiff’s right to maintain this action, which opinion concluded with the following’ order: “Therefore, after opinion, and during the pendency of defendant’s motion for rehearing and in the alternative for transfer of the cause to the Supreme Court of Missouri, and in accordance with Article V, Sec. 10 of the Constitution of Missouri 1945 and Rule 84.05(g) of the Supreme Court, the court on its own initiative doth order that the cause be and the same is hereby transferred to the Supreme Court because of the general interest and importance of the question involved in the cause and for a re-examination of the existing law in the light of the circumstances of this cause.” 363 S.W.2d 1. c. 737.

We will adopt a portion of the opinion of the court of appeals which states the facts concerning the manner in which Mrs. Harris was injured:

“Alma Harris had been a patient in Barnes Hospital in the City of St. Louis from July 3, 1959, to July 31, 1959. In this hospital an operation was performed on her dorsal spine, at which time a metastatic cancer was found. Following this surgery Alma Harris became paralyzed in her lower extremities. On the day the collision took place, viz., July 31, 1959, she was being transported in an ambulance driven by David Caldwell, who was in the employ of Raymond Caldwell, from Barnes Hospital to her home in Flat River, Missouri. In the course of transporting Alma Harris from Barnes Hospital to her home, the ambulance was driven southwardly on Highway 67 and when near its intersection with Cantwell Lane in St. Francois County, which lane is for east and westbound traffic, David Caldwell saw a northbound truck on Highway 67 when it was about three feet across the center line of the highway. David Caldwell swerved the ambulance toward the shoulder of the road to avoid the truck. The ambulance was struck by the truck at a point north of the intersection.

“Prior to the approach of the ambulance to the intersection of Cantwell Lane and Highway 67, defendant Goggins had been driving eastwardly on Cantwell Lane. From a stopped position, on the west side of Highway 67, on said Lane, defendant Goggins drove onto and across Highway 67, which at this point is a two lane highway.

“Defendant Woodruff was in the employ of defendants Banks Ray, Sr. and Banks Ray, Jr., doing business as Nashville Produce Company, and was driving a truck owned by them northwardly on Highway 67. At a point south of Cantwell Lane he saw the Goggins automobile cross Highway 67 and testified he swerved to the left to avoid striking the automobile. He estimated he drove over onto the west side of the highway about 3’1/£ feet. Alma Harris, as we have stated, was a passenger in the ambulance and had been placed on a cot therein and when the ambulance was struck by the truck, it caused her to be propelled toward the front end of the cot and knocked her feet partly off the edge of the cot. She complained of pain following the collision and was taken to the Bonne Terre Hospital where she remained until the time of her death on October 27, 1959.”

It was alleged in plaintiff’s petition that Alma Harris died on October 28 [27], 1959, and that plaintiff, who is the son of Alma Harris, was appointed administrator of her estate on the 16th day of February, 1960. The petition then alleged various specifications of negligence which allegedly caused the collision, and further alleged that “as a result of said collision, Alma Harris suffered the following injuries all of which were permanent and progressive and all of which caused Alma Harris to suffer excruciating pain and suffering and caused her much mental anguish [description of injuries omitted], and that said injuries caused her to be hospitalized from July 31, 1959 to the date of her death.”

Thereafter, defendant Goggins filed a motion to dismiss' plaintiff’s petition in which he alleged that theretofore, on November 23, 1959, Clifford Harris, the surviving husband of decedent, had filed a petition against these defendants seeking damages in the amount of $25,000 for the wrongful death of his wife; that the cause was tried before a jury on the 18th and 19th days of July, 1960, and that after all the evidence was closed, but prior to submission to the jury, the parties settled said action; that a stipulation for dismissal with prejudice was executed by plaintiff’s attorneys and that said plaintiff executed a release to all of the defendants; that said cause was dismissed with prejudice in accprdance with said stipulation, arid that defendant Goggins paid said plaintiff the sum of $5,125 and plaintiff agreed that the largest item of medical expense, i, e., $2,000 owed the Bonne Terre Hospital, would be paid out of that settlement. Said motion then alleged a number of feas'oris why the settlement with decedent’s. husband was res judicata and precluded this plaintiff from maintaining the pre.serit, action. Said motion also alleged “that the plaintiff has not set forth facts in his petition which would entitle him to the relief prayed for therein.” All of the other defendants filed similar motions with the exception that the amounts alleged to have been paid in settlement were, by defendants Charles Louis Woodruff et al., $1,125, and defendants Raymond Caldwell et al., $750. These motions were heard on January 6, 1961, and evidence offered in support thereof, and were on January 11, 1961, overruled by the trial court. Allegations similar to those contained in the motions to dismiss were included in the various answers filed by the defendants. Also, on the day the trial commenced, each of the defendants re-offered their motions to dismiss plaintiff’s petition and same were overruled by the court.

At the conclusion of all of the evidence defendants again offered the record evidence which had been previously submitted to the court in support of their respective motions to dismiss plaintiff’s petition and the offer was denied by the court. Thereafter, all of the defendants filed motions for a directed verdict, and in the motion of defendant Goggins, and also the joint motion of Charles Louis Woodruff et al., one of the grounds stated in support of said motions was that plaintiff’s petition failed to allege facts upon which relief could be granted.

The two main points raised by appellant Goggins upon appeal were: (1) “The judgment of the circuit court in the prior case of Clifford Harris against the same defendants for the wrongful death of his wife acted as a bar by- reason of appropriation, estoppel, merger and res adjudicata to the bringing and prosecution of the instant case, and the court erred in failing to sustain the defendant’s motion to dismiss plaintiff’s petition, renewed during the course of the trial and again set forth in the after-trial motion,” and (2) “plaintiff’s petition failed to state facts which would entitle him to the relief prayed for therein, in that he did not allege that the deceased received injuries which did not result in her death and the court erred in failing to sustain defendant Goggins’ motion to dismiss, renewed in the answer, renewed1 before the introduction of evidence, again renewed in the motion for directed verdict at the close of all the evidence, and again renewed in the after-trial motion.”

The court of appeals in its opinion, relying primarily upon the case of Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17, held that the plaintiff administrator was not barred from maintaining this action by reason of the settlement and judgment in the action theretofore instituted by the surviving husband of the deceased, The court, however, was of the opinion that it was essential to plaintiff’s cause of action to allege that decedent did not die as the result of the injuries received in the collision and that, since that allegation was omitted from plaintiff’s petition, the judgment against Goggins should be reversed and the cause remanded for further proceedings, as heretofore indicated.

Plaintiff, in his appeal from the judgment in favor of the other defendants, complained of the giving of a number of instructions. All of those were held by the court of appeals not to be prejudicially erroneous and therefore, as heretofore stated, the judgment as to all of the defendants, other than Goggins, was affirmed.

After the instant case was transferred to this court defendants Caldwell filed a motion seeking an order dismissing them “as parties to this appeal” in this court. The motion was based upon the grounds that (1) since no motion for rehearing or to transfer was filed by plaintiff seeking relief from the affirmance of his appeal, the judgment became final fifteen days after the opinion was filed, i. e., January 3, 1963, and (2) the issue which caused the court of appeals to transfer this case related only to the appeal of appellant Goggins. We heretofore ordered that motion taken with the case and we will now determine the merits thereof-

Article S, Section 10, Constitution of Missouri, V.A.M.S., provides, in part, that “[cjases pending in any court of appeals * * * may, after opinion, be transferred to the supreme court by order of either the court of appeals or the supreme court because of the general interest or importance of a question involved in the case, or for the purpose of re-examining the existing law, or pursuant to supreme court rule. The supreme court may finally determine all causes coming to it from any court of appeals * * * the same as an original appeal.” The procedure for transfers under quoted section 10 is prescribed in Civil Rule 84.05, V.A.M.R. Subsection (g) thereof provides that “[a] court of appeals at any time within fifteen days after adopting an opinion, if no motion for rehearing or transfer is filed, or at any time during the pendency of such motion, may on its own motion order a case transferred to the Supreme Court in accordance with Section 10 of Article V of the Constitution.”

It will be remembered that the opinion of the court of appeals, in disposing of plaintiff’s appeal, affirmed the judgment in favor of all the defendants except Goggins.. Certainly, by failing to file a motion for rehearing or to transfer within fifteen days, plaintiff abandoned any effort to obtain a rehearing or any further review of the points raised by him on the appeal. With-' out any motion being filed the court of appeals could have transferred the case to this court, on its own motion, within fifteen days, but it did not do so. While, this was one case in the court of appeals, it involved two appeals. We have concluded that when plaintiff failed to file a motion for rehearing or'to transfer within fifteen days, and the court did not, of its own motion, transfer the case' within that period of time, the determination off the issues raised on plaintiff’s appeal became final. We think it would be urirear sonable to construe Civil Rule 84.05(g) as providing that a motion for rehearing, or to transfer filed by one appellant would . extend the period during which the court could, of its own motion, transfer the whole case to this court. The result of such a’ construction would be to hold that a -motion by one appellant would postpone the finality of a judgment in favor of other parties as to whom no motion had been filed.

We are aware of the well-settled general rule to the effect that separate appeals must be disposed of by one appellate court, since they constitute but one case on appeal. See cases cited in Feste v. Newman, Mo.Sup., 368 S.W.2d 713, at page 719. However, we think the one-case rule was satisfied when the court of appeals filed its opinion which disposed of both appeals. Thereafter, as heretofore stated, the judgment relating to plaintiff’s appeal became final and the court of appeals properly transferred the case to this court for a review of the issues disposed of on the appeal of defendant Goggins. That the one-case rule has its exceptions is demonstrated by the case of Feste v. Newman, supra. In that case plaintiff sought to recover damages in the sum of $50,000 from two defendants. At the trial plaintiff ob-. tained a judgment for $10,000 against.defendant Denton but the verdict was in favor of defendant Newman. Plaintiff appealed from the Newman judgment and Denton appealed from the judgment against her. The supreme court held that plaintiff abandoned any contention of error upon her appeal by failing to present any assignment in her brief, and her appeal was dismissed. Since the appeal of Denton involved only $10,000, it was held that we had lost appellate jurisdiction, and the case, which then involved only her appeal, was transferred to the St. Louis Court of Appeals.

For the reasons heretofore stated, we have concluded that no issue relating to plaintiff’s appeal is before us for review and therefore the motion under consideration should be and is sustained.

We will first consider the point upon which the court of appeals reversed plaintiff’s judgment and remanded the cause. That contention of defendant Goggins is that plaintiff’s petition did not state a claim upon which relief could be granted because it failed to allege that decedent received injuries which did not result in her death. There can be no question but that the petition failed to contain that specific allegation and it further appears that such is an essential element of plaintiff’s claim in an action of this nature. Plaintiff’s claim is founded upon Section 537.020 (statutory references herein are to RSMo 1959, V.A.M.S.) which provides, in part, as follows: “1. Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, * * * [but] shall survive to the personal representative of such injured party * * The Plaza Express case, supra, which involved facts generally similar to those in the case before us, in construing the foregoing statute, stated that an “essential element of the administrator’s claim, one which he must allege and prove, is that the injuries sustained by deceased did not result in deceased’s death.” 280 S.W.2d 1. c. 22) .

Plaintiff has briefed the point, however, that his failure to allege that deceased did not die as a result of the injuries will not require a reversal because that issue was tried with the implied consent of the parties. Civil Rule 55.54, V.A. M.R., provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

There can be no question but that the issue under consideration was actually tried in this case. The two physicians who testified in the case each expressed the opinion (without objection on the ground that it was beyond the scope of the pleadings) that decedent did not die from the injuries received in the collision but died as a result of the cancer. Plaintiff’s verdict-directing instruction relating to defendant Goggins required the following finding: “further find that as a result of said collision, Alma Harris, sustained injuries, and that such injuries neither caused nor contributed to cause her death * * Also, at the request of the defendants the court gave Instruction No. 13 which was a converse of the portion of the instruction just quoted.

In construing Civil Rule 55.54, and similar provisions in Section 509.500, the cases have consistently held that failure to object to testimony on an issue not pleaded will warrant an inference that the issue is being tried with the implied consent of the parties and the issue is thereafter treated as if it had been raised in the pleadings. Evett v. Corbin, Mo.Sup., 305 S.W.2d 469; Dickerson v. Terminal R. Ass’n of St. Louis, Mo.Sup., 284 S.W.2d 568; Gooch v. Avsco, Incorporated, Mo.Sup., 340 S.W.2d 665.

In the situation presented, we are of the opinion that plaintiff’s petition should be considered as having been amended to conform to the proof in regard to the issue concerning the cause of decedent’s death. In reaching that conclusion we are not unmindful that defendant Goggins, in a-.pretrial motion to dismiss, included (among many others) a general assignment “that the plaintiff has not set forth facts in his petition which would entitle him to the relief prayed for therein.” In that connection it should be noted that said defendant did not at any time prior to the motion for new trial make any specific objection to the effect that the petition was deficient in failing to allege that decedent did not die as a result of the injuries complained of. As stated, that issue was actually tried. In the situation presented, the fact that the pretrial motion was filed and overruled would not preclude the application of the rule heretofore stated concerning failure to object to testimony on an issue not pleaded. If defendant had desired to restrict the trial to the issues pleaded he should have made an appropriate objection to evidence which was beyond the scope of plaintiff’s petition.

We will next consider the point which caused the court of appeals to transfer the case here. That is the contention that plaintiff is barred from recovery in this case because his father, as surviving spouse, settled the previous death action. We fully agree with the decision of the court of appeals to the effect that the aforementioned settlement did not bar the plaintiff from a recovery herein.

The wrongful death statute provides that ■“[wjhenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered (1) By the husband or wife of the deceased; * * Section 537.080. The applicable portions of the statute relating to causes of action not resulting in death have been heretofore quoted. See Section 537.020, supra.

The Plaza Express case involved a situation very similar to the one before us except that decedent therein had filed a suit to recover damages for his injuries prior to his death. It was revived in the name of his administrator, Randel E. Galloway. The decedent’s widow also brought a suit to recover for his alleged wrongful death. The defendants in those suits (in an effort to avoid double liability) brought an action to require the widow and administrator to interplead in order to determine which was entitled to recover. In construing the aforementioned statutes, we said:

“It follows that, at the instant of Bert Galloway’s death, a claim for damages for the personal injuries he received in the June 1951 collision between his automobile and defendants’ truck survived to his administrator if, but only if, the injuries received ás a result of the collision did not result in Bert Galloway’s death. It also follows that a claim or cause of action for Bert Galloway’s wrongful death accrued to his widow if, but only if, those same injuries received at the same time did result in Bert Galloway’s death. There was at this death only one claim in existence. It was either the same claim for damages which Bert Galloway had in his lifetime or it was a new claim which accrued to his widow upon his death. Both claims could not and did not exist. Which of the two did exist depends upon a determination of the fact issue of whether the injuries Bert Galloway received did or did not cause his death. * * * Both the administrator and the widow are (unless plaintiffs may obtain relief in their present action) entitled to proceed with their respective separate claims and, not only may each separately proceed but, unless a judgment for plaintiff in either of those actions would be res judicata of the other action, each may recover and be entitled to have satisfied his or her separate judgment. * * *

“We therefore treat instant facts as presenting a situation wherein the widow and the administrator are different persons and the beneficiary of the two actions is not the same person. Under these facts, we are aware of no principle, and none has been pointed out, in the doctrine of res judicata by which a judgment in either of the pending damage actions would bar the other, or by which either party-plaintiff would be estopped by a verdict or judgment in the other case as to any fact issue litigated in such other case. Specifically, if the widow recovered a judgment in her action, or if the administrator recovered a judgment in his action, even though the fact issue in each action as to whether deceased’s injuries did or did not result in his death would have been litigated and determined, the judgment in neither action would bar the maintenance of the other, nor would the widow or the administrator be bound in her or his respective action by the determination of such fact issue in the other action. This, because the widow and administrator are different persons and are not in privity with each other. Their interests are necessarily adverse.” 280 S.W.2d 1. c. 22, 23.

It is our view that the opinion in the Plaza Express case is decisive of the issue presented here. We have carefully re-examined that case and remain of the opinion that the reasoning in the foregoing quotation therefrom is sound.

Defendant (the use of the word “defendant” hereinafter refers to defendant Goggins) has filed a supplemental brief in which he contends that Clifford Harris is actually the only person who will benefit from the judgment in the instant case, and for that reason plaintiff administrator should not be permitted to recover herein. That contention is based upon speculation. Under Section 474.010, decedent’s son will receive one half of her estate. The fact that the widower may receive certain personal property under Section 474.250, and an allowance of a reasonable amount for a year’s maintenance under Section 474.260, in addition to one half of the estate, does not establish that he will be the sole beneficiary of any amount that may be recovered in this action. That contention is without merit.

Defendant also contends that in enacting Sections 537.020 and 537.080, the legislature did not intend that the surviving spouse and the administrator could both recover and therefore we should hold that when one has appropriated and settled his claim the other is barred from recovery. We agree that the legislature intended only one recovery. The difficulty,, however, is that it did not prescribe any procedure whereby it could be determined which should be the one to recover. Defendant apparently overlooks the fact that in many cases there may be an honest bona fide dispute between the surviving spouse and the administrator as to whether deceased died as a result of the injuries. In that situation an alleged tort-feasor should take timely action to protect himself. If he desires to make a settlement he should obtain a release from both. If he cannot obtain the releases, or if he does not want to settle the case, he can resort to the procedure followed in Plaza Express. There may also be other ways he may obtain protection. In any event, the instant contention does not change our previously expressed conclusion and it is overruled.

We will next consider certain contentions of defendant concerning alleged trial errors. He first asserts that the court erred in permitting plaintiff to ask Dr. Huckstep concerning pain suffered by decedent “by reason of injuries or the aggravation of any condition she was suffering with” because plaintiff had not pleaded aggravation of a pre-existing condition. Defendant evidently misconstrued the question. Dr. Huckstep was asked about “the aggravation of any condition she was suffering' from as a result of that accident.” While that is a rather unusual question it was certainly not error to describe the subsequent condition of decedent in regard to injuries received in the collision.

The next contention relates to the following question and answer in Dr. Huck-step’s deposition: “Q. Did her inability to void immediately following this accident cause you to form any opinion of the possible injury she may have suffered at the time of the accident? A. I felt that the injury produced further nervous damage which resulted in the use of the urinary catheter.” Defendant objected to the form of the question and also that the answer was not responsive. He has now briefed the point that the court erred in permitting that testimony to be read to the jury because the question and answer indicate that it is not based upon a reasonable medical certainty but on a mere possibility. The point briefed is not before us because that ground was not included in the objection presented to the trial court.

Defendant has also raised the point that the court erred in admitting the following recital in the admission note of the Bonne Terre Hospital record: “At the time of her accident on the way home, she was in the ambulance and although she was apparently not thrown from the stretcher, she was bounced around inside the ambulance and developed back pain.” The objection was that the recital constituted hearsay. We have decided that we need not determine the admissibility of that record because, in any event, it would not have been prejudicial. This for the reason that those facts were fully established by the testimony of decedent’s husband and daughter-in-law. See Hunter v. St. Louis-Southwestern Railway Co., Mo.Sup., 315 S.W.2d 689[5], Note the testimony of Mrs. Clyde Harris who was riding in the ambulance: “Q. And could you tell us what occurred at the time of that collision, insofar as Mrs. Harris was concerned? A. Well, she had scooted down on the cot to where her head was just about where the buttocks were and her legs from her hips on down were leaning over the side of the cot, just angling off at the side. Q. And that occurred right at the time of impact? A. Yes. Q. And how long — did Mrs. Harris say anything? A. She started to say, ‘Oh my back hurts.’ And she continued saying that and she finally was in tears.”

Defendant’s next point relates to the testimony of Dr. Robert L. Lam who testified as an expert for plaintiff. He stated that he had never seen decedent, but had examined the records of the Bonne Terre Hospital and of Barnes Hospital which related to her. These records were admitted in evidence in their entirety. When Dr. Lam was asked to state various opinions based upon those records, defendant made the general objection that such was improper because based on hearsay. Other hypothetical questions based upon these records (some of which were supplemented by hypothesized facts based upon testimony) were objected to on the ground they were not based upon facts in evidence. We rule this point against defendant. These hospital records were all admitted in evidence. That being true, we think they may be properly considered by the witness as a basis for opinion testimony. Wojciechowski v. Coryell, Mo.App., 217 S.W. 638. Since the records had been admitted in evidence we do not consider that it is an effective objection to say that they are hearsay. All of the facts considered by this witness were in evidence. We assume that defendant’s suggestion to the contrary was based upon the fact that most of the hospital records, although admitted, were not read to the jury. They were, nevertheless, in evidence, and could be used to form the basis for expert testimony.

Another point briefed by defendant is that the court erred “in admitting evidence before the jury over the objection of the defendants to the effect that the deceased Mrs. Harris hoped to go home and see her grandchildren and that the children were not allowed to visit Mrs. Harris when she was in the hospital for the reason that evidence with regard to the composition of the family of the deceased was inadmissible and was given for the purpose of soliciting the sympathy of the jury.” Defendant has cited the case of Heibel v. Robison, Mo.App., 316 S.W.2d 238, wherein it was held to be error to permit a plaintiff to testify that he had eight children. In the case before us there was no objection to the testimony that decedent had hoped to go home and see her grandchildren. Her son Clyde was permitted to testify, over objection, that (although they were under visitation age) the hospital would “now and then” permit his children to see her. We do not think the rule defendant relies upon is applicable in the situation here involved. This situation related to grandchildren where no question of support was involved. While the question as to whether the hospital would or would not permit the grandchildren to visit decedent was not strictly relevant, we are convinced that no prejudicial error resulted from the admission of that testimony.

Clifford Harris, decedent’s widower, testified briefly concerning the collision and his wife’s condition and progress while in the two hospitals. Upon his cross-examination defendant sought to show that the witness had filed suit against defendants in the wrongful death action and had received $7,000 in settlement thereof. We think the court properly sustained an obj ection to that evidence. It would not have tended to impeach the witness. That case was concluded and there was nothing inconsistent between his testimony in this case and the position he took in the previous case. The court properly permitted defendant to show that the witness was an heir to his wife’s estate and thus had a financial interest in the case. We rule this contention against defendant.

Defendant contends that the court erred in giving Instruction No. 1 because it required the jury to find that “Alma Harris sustained injuries, and that such injuries neither caused nor contributed to cause her death,” because such was beyond the scope of the pleadings. This contention is controlled by our decision heretofore in regard to the sufficiency of the petition. It is accordingly overruled.

The final point briefed by defendant is that the court erred in giving, at plaintiff’s request, Instruction No. 7 which reads as follows: “The court instructs the jury that if you find the issues in favor of plaintiff Clyde Harris, Administrator of the Estate of Alma Harris, then you should assess his damage at such sum as you may find and believe from the evidence would have fairly and reasonably compensated Alma Harris for her injuries, if any, she sustained as a direct and proximate result of the negligence of the defendant or defendants against whom you find, if any, at the time and place mentioned in the evidence, and in this connection you are instructed that you may consider such pain and suffering of body and mind, if any, that Alma Harris suffered by reason and on account of her injuries, if any, suffered in the collision in question.” He says the instruction is erroneous in not limiting the damages to the space of time between the date of injury and date of death. Under the circumstances of this case, we are confident the instruction would not have been misunderstood by the jury. The main element of damages in this case was pain and suffering and such could occur only between the date of injury and date of death. The cases cited by defendant, Showen v. Metropolitan St. Ry. Co., 191 Mo.App. 292, 177 S.W. 791, and Adelsberger v. Sheehy, 336 Mo. 497, 79 S.W.2d 109, are not applicable here. Those cases involved issues such as permanent injuries and loss of wages, which, it was thought, the jury might allow damages for during the period of the life expectancy of deceased. We rule this contention against defendant.

The judgment in favor of plaintiff and against defendant Goggins is affirmed.

All concur.