15 S.W. 751 (Mo. 1891), Hawes v. Kansas City Stock-Yards Co.

Citation:15 S.W. 751, 103 Mo. 60
Opinion Judge:Barclay, J.
Party Name:Hawes v. Kansas City Stock-Yards Company, Appellant
Attorney:Pratt, Ferry & Hagerman for appellant. Wm. Rush, Jr., and L. G. Rowell for respondent.
Judge Panel:Barclay, J. Sherwood, P. J., concurring and dissenting. Sherwood Sherwood
Case Date:February 02, 1891
Court:Supreme Court of Missouri

Page 751

15 S.W. 751 (Mo. 1891)

103 Mo. 60



Kansas City Stock-Yards Company, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

The instruction referred to in the opinion reads as follows:

"1. Although the jury should believe from the testimony that the plaintiff had knowledge of the dangerous and vicious character of the horse in question, yet if the defendant's managers also knew of it and after plaintiff had mounted the horse said managers or any one of them, whipped or caused the horse to be whipped and thereby rendered it more dangerous and unmanageable, and if, by reason thereof, the plaintiff, without fault on his part and while in the exercise of ordinary care, was thrown from the horse and injured, then they should find for the plaintiff in such sum as they believe will compensate him for his injuries so received, not exceeding the sum of $ 20,000, and by ordinary care is meant such care as a person of ordinary prudence would exercise under the same or similar circumstances."

As defendant's counsel, neither in brief nor argument in this court, have made the point that the evidence at the trial did not justify the submission of the case to the jury, it is not thought necessary to make any fuller statement of the facts than appears in the opinion of the court.

Reversed and remanded.

Pratt, Ferry & Hagerman for appellant.

(1) The true rule for the appellate court to invoke is this: Where error has intervened in the trial of a case, a presumption of prejudice arises, and unless respondent can show from the record that no prejudice resulted, there must be a reversal. Clark v. Fairley, 30 Mo.App. 335; Deery v. Cray, 5 Wall. 807; Smiths v. Shoemaker, 17 Wall. 630; Railroad v. O'Brien, 119 U.S. 99; Gilmer v. Higley, 110 U.S. 47; Potter v. Railroad, 46 Iowa 399; Stafford v. Oskaloosa, 57 Iowa 748; Reynolds v. Keokuk, 34 N.W. 167; Gillett v. Corum, 5 Kan. 608; Hall v. Jenness, 6 Kan. 356; Thompson on Charging the Jury, sec. 130, and cases cited. (2) If an erroneous instruction as to damages has been given there must be a reversal, because the court cannot tell whether the jury has been affected thereby or not. Duke v. Railroad, 99 Mo. 347, and cases cited; Gill v. Railroad, 37 Hun, 107; Reed v. Railroad, 57 Iowa 23; Hirshberg v. Strauss, 64 Cal. 272; Amer v. Longstreet, 10 Pa. St. 145. See also cases cited in next subdivision of this brief. (3) The first and second instructions given for plaintiff, as to the measure of damages, are erroneous. First. They gave the jury no idea as to what elements were to be considered, which was a question of law. The authorities are abundant that just such instructions are erroneous. 2 Shearman & Redfield on Neg. [4 Ed.] 740; 3 Suth. Dam. 731; Sedg. Meas. Dam. [6 Ed.] 768; Wells on Questions of Law and Fact, 430, sec. 507; Patterson's Railway Accident Law, 468; Ross v. Machine Co., 24 Mo.App. 353; Flynt v. Railroad, 38 Mo.App. 94; Haysler v. Owen, 61 Mo. 270; Stewart v. Clinton, 79 Mo. 603; Stephens v. Railroad, 96 Mo. 207, 215. Second. No claim was made in the petition for a wilful or malicious act, and there could be no recovery on that theory when the petition was founded on defendant's negligence. Gregory v. Railroad, 14 N.E. 228; Railroad v. Bryan, 107 Ind. 51; S. C., 7 N.E. 807; Railroad v. Overton, 20 N.E. 147; Hays v. Railroad, 8 S.W. 491. Third. And there can be no recovery of exemplary damages unless the act was done wilfully and maliciously. Negligence, however gross, is not sufficient. Welsh v. Stewart, 31 Mo.App. 376; Railroad v. Arms, 91 U.S. 489. Fourth. In any event exemplary damages are never awarded unless the petition states a cause of action therefor. Welsh v. Stewart, 31 Mo.App. 376; Zeliff v. Jennings, 61 Tex. 458. Fifth. It being established that exemplary damages were not recoverable, the instructions as to damages are vulnerable in authorizing an assessment therefor. Such is the view taken of like instructions elsewhere. Wheeling v. Wilson, 19 W.Va. 323; Delphi v. Lowery, 74 Ind. 527; Wilson v. Granby, 47 Conn. 69; Keighlinger v. Egan, 65 Ill. 235; Railroad v. Vandever, 36 Penn. St. 298. Sixth. There was no proof of the value of the doctor's bill or expenses incurred. The law is, such expenses are not recoverable without such proof. Duke v. Railroad, 99 Mo. 347, and cases cited. The instructions given in this case on the subject of damages authorized the jury to make a guess on that subject. Stephens v. Railroad, 96 Mo. 207, 215. Seventh. The law is...

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