Moon v. St. Louis Transit Co.

• Decision Date: 20 December 1912
• Citation: 247 Mo. 227,152 S.W. 303
• Parties: MOON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

152 S.W. 303

247 Mo. 227

MOON v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

December 20, 1912.

Rehearing Denied December 31, 1912.

1. DAMAGES (§ 163) — LOSS OF TIME — EVIDENCE.

While, in a personal injury action, a gift from plaintiff's employer will not warrant a reduction of damages, yet, where plaintiff testified that during the period in which he claimed to have suffered a loss of time he had collected his salary as such, and visited the offices of the company of which he was president and attended directors' meetings, it will be presumed that he discharged the duties pertaining to his employment, and did not receive his salary as a gratuity, and hence this evidence furnished no basis for an instruction on loss of time.

2. NEGLIGENCE (§ 140) — ACTIONS — INSTRUCTIONS.

In a personal injury action, where the evidence showed no cause of injury save negligence of plaintiff and that of defendant, an instruction that, if an act or omission of plaintiff directly caused or was one of the contributing causes of plaintiff's injury, then verdict should be for plaintiff if he was exercising due care, is improper, for the outside cause must be one other than the negligence of plaintiff.

3. STREET RAILROADS (§ 118) — ACTIONS — INSTRUCTIONS.

In a personal injury action against a street railway company arising out of a collision between defendant's car and plaintiff's carriage, the fact that a building where the accident occurred obstructed the view of the motorman and the driver is a mere circumstance to

be considered in determining the question of ordinary care on the part of either of them, and is not a contributing cause which will warrant an instruction that defendant is liable if its negligent act or omission directly caused, or was one of the contributing causes of, the injury.

4. NEGLIGENCE (§ 140) — TRIAL — INSTRUCTIONS.

In a personal injury action, that several acts of negligence were separately submitted will not authorize an instruction that if one act of negligence directly caused, or was one of the contributing causes of, the injury, plaintiff should recover.

5. TRIAL (§ 296) — INSTRUCTIONS — CURE OF INSTRUCTIONS.

In a personal injury action, where the evidence tended to show that the injury was the result only of the negligence of defendant or that of plaintiff, an instruction denying recovery in case of contributory negligence will not cure the error of an instruction authorizing recovery in case acts of defendant directly caused, or were one of the contributing causes of, the injury.

6. NEGLIGENCE (§ 140) — INJURIES — PROXIMATE CAUSE.

Damages for negligent acts cannot be recovered unless they are the proximate cause of the injury; consequently instructions that, if defendant's negligence directly caused, or was one of the contributing causes of, plaintiff's injury, recovery might be had, are erroneous.

7. TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTION OF FACT.

In giving instructions, controverted facts should not be assumed.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by Joseph W. Moon against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest and T. E. Francis, all of St. Louis, and E. T. Whitelaw, for appellant. John A. Gilliam, of St. Louis, for respondent.

BLAIR, C.

This is an appeal from a judgment of the circuit court of the city of St. Louis in an action for damages inflicted when a carriage in which respondent and his wife were riding was struck by one of appellant's cars. The facts are stated in the opinion in Moon v. Transit Company, 237 Mo. 425, 141 S. W. 870. The nature of appellant's assignments of error renders unnecessary a detailed statement in this case. Additional facts necessary to an understanding of the rulings complained of are stated in the course of the opinion. The errors assigned relate to rulings on instructions and the admission of evidence. It is also asserted the verdict is excessive.

1. Respondent testified he was, when injured, president of the J. W. Moon Buggy Company and his salary was $250 per month or $3,000 per year. The amount was fixed by the board of directors, and had been the same for several years. Respondent was elected annually, but the salaries of the officers were paid under a resolution or agreement of long previous date. Respondent said he "was unfit for business" for a year and a half as a result of his injuries, but during that time would go to the company's office for a short time once or twice a week, and a few directors' meetings were held at his home; that the time thus employed during the year and a half amounted to about 60 days. He testified he received during the entire time his full salary from the Joseph W. Moon Buggy Company, and it was charged up in the salary account, but during one year and four months rendered no service. The year and four months mentioned was arrived at by deducting from the period of one and a half years the time actually employed in the company's service at intervals during that period. Respondent as the president of the Buggy Company drew his salary regularly, and it was charged in the salary account. He performed certain duties at intervals throughout the year and a half he testifies he was disabled. It does not appear he had any duties as president other than those he performed. His acceptance of salary unless entitled to it by virtue of services rendered would, in view of the relation he bore the company, constitute a legal wrong which there can be no presumption he committed. The question whether he would be heard to say he, as president, took from the company's till, under the guise of salary, money to which he was not entitled, is not necessarily in this case. What he did say was that he performed certain duties at periods distributed over the year and a half he suffered from his injuries and drew the regular salary he had drawn for years before and seems to have been drawing since; that he drew the salary, and the company charged him with it as salary. His agreement with the company as to services to be rendered is not in evidence. Whether he was to devote his whole time to the company's business does not appear. If he did all that his arrangement with the company required of him, he earned his salary, and was entitled to it. The fact he took for the performance of certain duties an amount equal to his salary is not evidence he owed the company other duties which he did not perform, nor is it evidence he was not entitled as of right to all he received. Courts cannot take judicial notice of the duties respondent was to perform or of the hours, if any, he agreed to devote to the Buggy Company's business.

It is quite true appellant can have no greater right to a reduction of damages on account of a gratuity or gift to respondent from the J. W. Moon Buggy Company than from a stranger and no more right to such reduction on account of a gift after injury than one before injury. It may also be conceded that in case one is employed for wages or in a subordinate capacity on a salary, and his right to the agreed compensation depends upon his rendition of specific services, and his failure to render such services ends his right to compensation, then, in case of his injury and consequent inability and failure to work, he has no legal claim to compensation,...