Dean v. Wabash Railroad Company
| Decision Date | 22 June 1910 |
| Citation | 129 S.W. 953,229 Mo. 425 |
| Parties | GEORGE M. DEAN v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Jas. D. Barnett, Judge.
Affirmed conditionally.
J. L Minnis and Robertson & Robertson for appellant.
(1) The verdict is excessive. 1 Joyce on Damages, secs. 39, 100, 101 214 and note 72 where will be found a large collection of cases on excessive and reasonable verdicts. Sawyer v Railroad, 37 Mo. 240; Adams v. Railroad, 100 Mo. 555; Brady v. Railroad, 206 Mo. 509; Rodney v. Railroad, 127 Mo. 676; Stolze v. Trust Co., 188 Mo. 581; Devoy v. Railroad, 192 Mo. 197. (2) The verdict is contrary to the evidence, and is the result of false testimony on the part of the plaintiff, and defendant is therefore entitled to a new trial. R. S. 1899, sec. 800; 14 Ency. Pl. and Prac., 739; Bank v. Railroad, 61 Ia. 700; Cleslie v. Frerichs, 95 Ia. 83; Rickroad v. Martin, 43 Mo.App. 604; Jaccard v. Davis, 43 Mo. 535; Sly v. Railroad, 134 Mo. 690; State v. Prendible, 165 Mo. 353; Thompson v. Emerson, 118 Mo.App. 234; Mfg. Co. v. Cunningham, 73 Mo.App. 382. (3) The court allowed improper hypothetical questions to be asked over the objections of the defendant. Root v. Railroad, 195 Mo. 377; Russ v. Railroad, 112 Mo. 45; DeMaet v. Storage Co., 121 Mo.App. 105; Smart v. Kansas City, 91 Mo.App. 586; Rogers on Ex. Test., sec. 5; Benjamin v. Railroad, 50 Mo.App. 610; Granger v. Still, 187 Mo. 210; Combs v. Construction Co., 205 Mo. 267; King v. Gibson, 206 Mo. 264; Gibler v. Railroad, 129 Mo.App. 103; Holloway v. Kansas City, 184 Mo. 19. (4) The court erred in permitting the plaintiff to give in evidence the board bill at the Globe Hotel for himself and relatives. That expenditure was not an element of damages, neither was it pleaded. Personal Injuries on Railroads, White, secs. 143, 174, 175; 1 Joyce on Damages, secs. 251, 252; 4 Elliott on Railroads, sec. 1811; Grober v. Derwin, 43 Colo. 495; Vedder v. Delaney, 122 Ia. 583; Sedgwick on Damages (8 Ed.), sec. 48. The allowance of loss of time and cost of living is a double damage. Elliott, supra. (5) Plaintiff's instruction on the measure of damages is error. (a). Except as to the concluding portion, it is a copy of that approved in Curtis v. McNair, 173 Mo. 291. Loss of time is not recoverable for future damages, but that is covered in impaired earning capacity, if any. The paragraph, "his loss of time and such damages, if any, as you may, from the evidence, find it reasonably certain he will suffer in the future therefrom," covers loss of time in the past, and on account of the use of the word "therefrom" covers loss of time in the future. The adverb "therefrom" means "from this or from that." (Webster.) Then in the foregoing clause the syllable "there" refers to some definite subject. Substituting for "there" the subject "his loss of time" we have "such loss of time and such damages, if any, as you may, from the evidence, find it reasonably certain he will suffer in the future from his loss of time." Substituting "damages," it reads "such loss of time and such damages, if any, as you may, from the evidence, find it reasonably certain he will suffer in the future from such damages." Ordinary grammatical construction forbids any other than the first construction. The word "therefrom" does not relate to the word damages, for the word damages covers all loss. If the word "therefrom" qualifies damages then the instruction is a roving commission as to future damages. Badgely v. St. Louis, 149 Mo. 134; Howes v. Stock Yards Co., 103 Mo. 60. (b) The instruction directing the jury that it might allow for amounts expended for nursing was not based on any testimony in the case, and it was error. Duke v. Railroad, 99 Mo. 347; Gibler v. Railroad, 203 Mo. 208; Gibney v. Railroad, 204 Mo. 704; Smith v. Railroad, 108 Mo. 243. Neither can plaintiff recover, as an element of his damages, for service rendered him gratuitously by members of his family, relatives or personal friends. The exact point is ruled on in Morris v. Railroad, 144 Mo. 500, and Gibney v. Railroad, 204 Mo. 722. (6) The court erred in permitting plaintiff to introduce in evidence the X-ray pictures. The jury could know nothing about these, and the only purpose for which they could be used in evidence would be to aid the witness in his testimony. Pictures of this character depend entirely upon the qualification of the person taking them, and upon the trustworthiness of the instrument used and the process made use of in taking them. Wigmore on Ev., sec. 795. (7) The court erred in overruling defendant's motion to strike out a portion of plaintiff's petition. Clearly these allegations had no proper place in the petition. It was pleading evidence, besides laying the foundation for the introduction of evidence as to loss of business, and was outside the rule for the measure of damages for loss of time and loss of earning capacity. The action of the court on this ruling was properly saved by a special bill of exceptions. Tobacco Co. v. Walker, 123 Mo. 663; Lynn Co. v. Bank, 175 Mo. 539; McHugh v. Railroad, 190 Mo. 92; Tarkio v. Clark, 186 Mo. 285.
Barclay, Fauntleroy & Cullen for respondent.
(1) The only bill of exceptions that can be considered in this case is the one filed February 25, 1907. Two bills of exceptions at the same term of court are unknown to the law, and the court has no jurisdiction to sign a second bill of exceptions at the same term of court, or to permit a second bill to be filed. R. S. 1899, sec. 728; Atchison v. Railroad, 94 Mo.App. 572; State ex rel. v. Robinson, 129 Mo.App. 147. (2) The bill of exceptions filed February 25 1907, does not contain a motion for a new trial, or motion in arrest; and there is nothing before this court for review except the record proper. State ex rel. v. Pulliam, 104 Mo.App. 94; Parson v. Clark, 98 Mo.App. 28. (3) The giving of plaintiff's instructions, and the overruling of defendant's motion to strike out certain parts of the petition, are not assigned as errors in the motion for a new trial, and hence such matters are not reviewable in this court. State v. Crites, 215 Mo. 91; Almond v. Modern Woodmen, 133 Mo.App. 382; State v. Kennedy, 207 Mo. 528; State v. McKee, 212 N.W. 138; Lynch v. Railroad, 208 Mo. 1. (4) By answering over, the defendant is precluded from complaining of the action of the court in overruling defendant's motion to strike out parts of plaintiff's petition. McMillen v. Columbia, 122 Mo.App. 36; Jordan v. Railroad, 202 Mo. 418; White v. Railroad, 202 Mo. 539; O'Brien v. Railroad, 212 Mo. 71; Ewing v. Vernon Co., 216 Mo. 681. (5) The objections made by defendant to the questions propounded to the expert witnesses by plaintiff on cross-examination were indefinite, and defendant's counsel did not state to the court specifically the matters referred to in the objections, and therefore the objections were properly overruled. Kinlen v. Railroad, 216 Mo. 173; State v. Bell, 212 Mo. 125; O'Neil v. Kansas City, 178 Mo. 100. (6) The cross-examiner should be allowed a liberal range, and it is proper to interrogate an expert witness touching all matters involved in the case, and to ask him all questions which are reasonably necessary and proper to test his temper, bias, motives, intelligence, accuracy, credibility or means of knowledge. McFadden v. Railroad, 87 Cal. 464; State v. Porter, 34 Ia. 131; Harvester Co. v. Miller, 72 Mich. 265; Root v. Railroad, 67 N. E. (Mass.) 364. (7) The cross-examiner may base his questions to an expert upon such portion of the evidence as he may see fit to select; and it is well settled that counsel has the right to assume any state of facts in reason which he believes is supported by the evidence, and to ask the opinion of the witness upon the facts so assumed. Railroad v. Valvey, 104 Ind. 409; State v. Privitt, 175 Mo. 225. (8) The court did not err in admitting evidence that plaintiff paid the board bill of himself and those who waited on him at the hotel. He was compelled to remain at the hotel, and required attendants, and the board of himself and his attendants is obviously an element of his damage. The sum expended was only $ 165, and the jury were instructed to consider only such reasonable amounts as the evidence showed he had expended. Sherwood v. Railroad, 82 Mich. 374; Flayerty v. Railroad, 207 Mo. 338; Railroad v. Zeiger, 182 Ill. 9; Calwell v. Railroad, 57 Hun (N. Y.) 249; Turner v. Boston, 158 Mass. 261; Watson, Pers. Inj., sec. 528, p. 650. (9) Photographs taken by the X-ray process are admissible upon the same principles, under similar circumstances, and with like effect, as ordinary photographs. State v. Matheson, 103 N. W. (Ia.) 137; De Forge v. Railroad, 178 Mass. 59; Carlson v. Benton, 66 Neb. 486; Miller v. Minturn, 83 S.W. 918; Railroad v. Spence, 213 Ill. 220; Jameson v. Weld, 93 Me. 345; Geneva v. Burnett, 65 Neb. 464; Mauch v. Hartford, 112 Wis. 40; Miller v. Dumon, 24 Wash. 648. (10) The verdict is not excessive. There is nothing in the record to indicate that it was not the calm, impartial judgment of the twelve men who composed the jury. Gordon v. Railroad, 222 Mo. 516; Markey v. Railroad, 185 Mo. 348; Scullin v. Railroad, 184 Mo. 695; Stotler v. Railroad, 200 Mo. 107; Copeland v. Railroad, 175 Mo. 650; Swearingen v. Consolidated Co., 212 Mo. 524; Sotebier v. Railroad, 203 Mo. 702. (a) Under the facts in proof the verdict in this case is lower than some verdicts in personal injury cases approved by the highest courts elsewhere. Phillips v. Railroad, 5 C. P. Div. 280; Dike v. Railroad, 45 N.Y. 113; Gulf Co. v. Shelton, 69 S.W. 653, 70 S.W. 359; Huggard v. Refining Co., 109 N. W. (Ia.) 475; Harrold v. Railroad, 24 Hun 184; Reeve v. Elec. Co., 92 P. 89; Railroad v....
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