
    L. J. Jackson, Respondent, v. Guy A. Thompson, Trustee Missouri Pacific Railroad Company, a Corporation, Appellant.
    No. 41144.
    218 S. W. (2d) 97.
    Division Two,
    March 14, 1949.
    
      
      Williams, O’Bryen & Schlajly, Fred L. . Williams,, Boland F. O’Bryen, Robert F. Schlajly, and Charles S. Baumgarten for appellant. . , ■ . .
    ,. Cox é Cox, Abraham Altman and William B. Kirby for respondent. ■ '-I ' ' : ■
   [97]

WESTHUES, C.

This is an action to recover damages for personal injuries alleged to'have been' sustained ‘by 'plaintiff ih/a'cpL lision.of two of defendant’s trains. There was a verdict and judgment in plaintiff’s favor in the sum of $20,000. Defendant railroad appealed.

A bi’ief statement of the case will suffice. Plaintiff, a pullman porter, was assigned on August 10, 1947, for duty on the rear car of a • train on a run from Ft. Worth, Texas to St. Louis, Missouri. Near Jacksonville, Arkansas, while the train was at a .standstill, another of -defendant’s trains traveling in the same direction collided with the • rear of the train on which plaintiff was employed. . Plaintiff sustained injuries and .this suit ensued.

The principal issue tried ivas the extent of plaintiff’s injuries. Plaintiff claimed that his head, knee, and back had been injured. Defendant contended that plaintiff’s back injuries were of long standing and were not so serious as he alleged. Plaintiff introduced substantial medical evidence that he had suffered serious, permanent injury to his spine,-so as to be unable to do any manual labor. The defendant introduced evidence attempting to prove that plaintiff’s back condition was mainly due to arthritis which had existed for ‘ a number, of years. The defendant also introduced records of the Santa Fe ‘ Hospital of Temple, Texas, disclosing that plaintiff had been treated 'for various ailments in the years 1937 and 1938; It "was brought out in the evidence that plaintiff underwent an operation in -192.1 and another in 1927, and that he suffered with a rupture which was the result of an accident in 1945. The records of the hospital for the years 1937 and 1938 indicaté that plaintiff suffered with pains in his back during that period. Defendant also showed that shortly after the [98] collision plaintiff had signed a statement ■ asserting that his injuries consisted of “Bumped right side of head and skinned right knee”. No mention of a back injury appeared on the statement. Plaintiff testified that previous to the injury received in the wreck, he had had no trouble with his back. He testified further that he had signed the abovementioned statement but that hé was suffering so much pain at the time and did not remember . all he hád said but thought he had stated that his back hurt.

.Defendant has briefed four points seeking a reversal of the judgment. They are: that plaintiff committed perjury in his testimony concerning his previous condition of health; that the trial court erred in excluding evidence as to permanent total disability benefits paid to plaintiff before the alleged accident; that there was newly discovered evidence; and.lastly, that the verdict was excessive.

. We need discuss only the question of the admissibility of evidence as to payments made to plaintiff in 1938 by the Southwestern Life Insurance Company for permanent total disability. The defendant on cross examination of plaintiff disclosed that plaintiff’s insurance paid the hospital and medical expenses incurred by reason of his injuries received in ' the collision. The defendant then questioned pla^ iff whether he had'been íiaid compensation; also, whether the Pu mi i Company had made' any payments to him since-the acci-df b; t ’ain, whether he had filed a claim with the Railroad Retiré-is ,nt B ard. Objections to all !of these questions ivere sustained. ■' hbseq-u, nt questioning disclosed ■ the following':

“Mr. iPBryen: Q. ‘Jackson, you were on furlough from March 6, 1947, ti June 8; 1947, weren’t you?’ A. •‘Yes,-sir'.’ ' • ' :
Q. ‘Have you received any-furlough notice in recent months from the Pullman Company-? Have 'you 'been furloughed? Weren't you furloughed in March?’ A. ‘Yes, sir.-’ '■ ■ -
Mr.-Kirby: ‘That is 1948.’
Mr. O’Bryen:' ‘1948.’
' A.. ‘And'1947'T was furloughed.’:
Q. ‘Were you furloughed on March-30th;-1948', also-?’ A: ‘Yes, sir, This time, I suppose.-’ - ' • '■ '■ - ■ ■
•';Q. {We were- talking about that insürance company paying you money. You have been paid by insurance companies for permanent ■total disability, haven’t you-?? ■
■ Mr. Kirby: -‘I want to object to that line of questioning,• Your Honor. That is'the sáme thing that has been going on ■. ’ . 1 i" ’
The Court: ‘Objection sustained, and the-jury-in its deliberations is instructed to disregard it-’ • ' • '
-Mr. O’Bryen: ‘Offer to prove by this "witness, if allowed to, testify, ■that-September 19th,' 1938, o'r soon thereafter that Southwestern! Life Insurance Company paid him -permanent total benefits connected 'with' group certificate insurance issued on the life of Luminary J. Jackson.’ :
The Court: ‘Object to the/offer of proof?’
- Mr. Kirby: ‘Yes.’
• The Court: ‘Objection sustained;’ ' '
“Mr. O’Bryen:- ‘That is all.’ ”

Plaintiff éóntends the objection.to tlie question was properly ■sustained for the reason that the defendant’was not attempting. to show by the question that .plaintiff had had a ba,ck’ injury’ but, that plaintiff had received payments from an insurance ’ company. The .record discloses, as we have indicated',.¿Hat the'precéding interrogation, of plaintiff did'concern payments made to plaintiff after and because of the injuries resulting from', the, collision. The objections were properly sustained because the defendant, was” not entitled to have the benefit of such evidence. See Reiling v. Russell, 345 Mo. 517, 134 S. W. (2d) 33, 1. c. 36 (6). Wells v. Thomas W. Garland, Inc., 39 S. W. (2d) 409, 1. c. 411, 412 (7, 8).

The-rule, however, is no.t applicable to.the evidence offered in an attempt to prove plaintiff, had applied for and received total disability benefit payments prior to-the injuries . sustained . in :the collision. '-Such evidence ivas not acbnissible -oil the theory that plant-tiff had received money but was admissible to show that plaintiff had considered himself totally disabled. [99] This, evidence was also admissible as having a bearing on plaintiff’s credibility as a witness, and tended to support the déféndaiit'Vtheory that plaintiff’s back injury was of long standing. Again, such evidence was admissible as an admission against,interest. See Wiener v. Mutual Life Insurance Company of New York, 352 Mo. 673, 179 S. W. (2d) 39, 1. c. 43 (14); Chavaries v. National Life and Accident Insurance Company of Tennessee, 110 S. W. (2d) 790, 1. c. 793 (4, 5). Plaintiff-says the question was immaterial and, therefore, even if th¿- evidence was admissible, it was'-harmless error. We cannot-agree. We deem the question material ‘because:plaintiff ■ claimed that the major injury sustained in Collision was that to his-back. The records of the hospital f'Or the years-1937 and 1938 indicate that' plaintiff then complained of his back. This also supports the evidence offered by defendant that the injury, to the back may have’to some extent been.due to previous trouble. Therefore, if the permanent disability benefits, if any, were paid in 1938; because of'injury'to plaintiff’s back, then certainly, the defendant should have the right to have the jury consider such ¿vid'eny.e'on'.the question of whether, the plaintiff’s injuries wei’e entirely, or only partially, due to the collision.'.-Plaintiff, of. course, would hate- the. right to explain'the circumstances' or show that.he had 'fully recovered. ’ In view .of. this .ruling it. is. unnecessary . to consider’the:question:of the trial court’s ruling'in refusing a new trial"'sought oh thé' basis of newly discovered-evidence. ;

Plaintiff filed a motion to dismiss the appeal alleging that defendant’ 'violated ,Rúle’"T.08í'’ta) and'Rule T.0'8 :'(b') of (this, court in that the statement of'facts made b,y appellant,is.argumentative, repetitious, unfair, and not eoincise. This court has been extremely liberal, in the..enforcement>,.of.-its rules In this regard, y Perhaps we have been too liberal. The reason is that we loathe to dismiss a case for', failure to comply with the rules. We prefer to decide the cases on their merits. However, lawyers should not conclude in view -of this liberalism that the rules are to be disregarded. Rule. 1.08 (b) states clearly that “The.fair and concise statement of the.facts shall be-in the form of a statement of the facts,relevant to the questions presented for determination”. Stating the evidence of each witness separately and quoting verbatim from the evidence of.each witness is not. a compliance with this ,'ru]e. Plaintiff alsp asserted, in the motion, that Rule' T.08 (ai3');,’ pertaining to points and authorities, was violated by appellant, "in 'this regard we find the brief sufficient. The points reiied on. were concisely stated and eases were cited, ip support, of. the.points made. ..Due. 'to ’.our ’rehictaney.to dismiss cases for violation, of the riiles, we demy ilie motion fo dismiss. Judgment, is reversed and t-lie cause remanded for retrial.

Boliling and BárreU, GO., concur.

PER CURIAM:

Tlie foregoing opinion by Westtiues, C.,. is adopted as the opinion of the court.

All the judges concur.  