The foregoing opinion of MOZLEY C., is hereby adopted as the opinion of the court. All of the judges concur.
PER CURIAM OPINION ON MOTION FOR REHEARING AND TO TRANSFER TO BANC. Respondent has filed herein a motion for rehearing, and also an alternative motion to transfer this cause to Court in Banc. It is earnestly insisted by respondent, that the error pointed out by the court in its original opinion, relating to the testimony of Dr. Fry, resulted in no harm to appellant, as the same facts are alleged to have been proven by other witnesses.
We find, upon examination of the record, that plaintiff testified as follows:
"Q. Have you had any passage of blood? A. Yes, I had — I pass blood from my bowels and I have had hemorrhages of the bladder too." *Page 499
She was not testifying as an expert, but as to her actual condition at some time not mentioned. Hence, her evidence was competent if it related to the injuries sustained at the time of fire. It was not the same class of evidence sought to be shown by the testimony of Dr. Fry. In other words, the above testimony of plaintiff should be classed as direct evidence, while that of Dr. Fry is considered expert evidence. It does not appear fromrespondent's testimony, that the fire had anything to do with this passage of blood. There is nothing to indicate that it was not the ordinary blood which flows from menstruation. It does not appear that it was the kind of blood that Dr. Fry was basing his opinion on as an expert. No other witness except plaintiff had been asked about this passage of blood before Dr. Fry was examined, and an objection made to his testimony.
Here, then, was Dr. Fry, a leading specialist on nervous diseases, called upon to testify in behalf of plaintiff, and was confessedly permitted to give his opinion as to her future condition based in part on her incompetent narration of her past condition as detailed to him, outside the presence of either court or jury. The evidence thus offered was clearly incompetent. [Aronovitz v. Arky, 219 S.W. l.c. 623-4; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 94; Freeman v. L.P. Ins. Co., 195 S.W. l.c. 548; Gibler v. Railroad, 129 Mo. App. l.c. 103.]
If plaintiff's counsel, with the view of augmenting the damages in this class of cases, will persist in getting before the jury improper testimony, to which timely and appropriate objections are made, they have no one to blame but themselves if the case is reversed and remanded for a new trial on account of the admission of such illegal evidence. Especially is this true, in the case before us, as plaintiff's counsel were not content to have Dr. Fry give an opinion based on plaintiff's testimony given at thetrial, but insisted on the opinion of Dr. Fry based on thehearsay testimony aforesaid. It was the *Page 500 province of the jury to pass upon the facts. They might not have believed that the passage of blood described by plaintiff, if itactually occurred, had anything to do with the fire orinjuries sustained herein. It is evident that counsel for respondent considered the evidence objected to as veryimportant, or they would not have been so insistent on having it admitted in the face of a timely and proper objection. Our ruling, in respect to this matter, has been clearly and easily understood. If counsel saw fit to speculate thereon they must suffer the consequences. It is not the province of this court to determine the extent of the injuries inflicted by the admission of said evidence.
It is fair to assume, that when counsel introduce a noted specialist, or one standing high in his profession, that the jury are expected to give his testimony full credit in passing upon plaintiff's compensation. If it is based upon matters prohibited by law, and timely objections have been made to its introduction, it becomes the plain duty of this court to reverse and remand the cause for a new trial. As heretofore stated, an objection was made to the incompetent testimony at the earliest opportunity. Said objection was not available as to the evidence of respondent for the reason heretofore shown.
Counsel for plaintiff, in their motion to transfer, seem to be of the impression that Commissioner MOZLEY, who wrote the opinion in this cause, is no longer a member of the court. His resignation does not become effective until July 1, 1921, and he now occupies the same position that he did when the original opinion was written.
We deem it unnecessary to extend this opinion further. The authorities heretofore cited plainly stamp the testimony complained of by appellant as improper, and we see no reason for making an exception in this case to the well settled rule of law heretofore stated.
Respondent's motions for a rehearing and to transfer to the Court in Banc are respectively overruled. *Page 501