41 S.W. 909 (Mo. 1897), Hill v. Meyer Brothers' Drug Co.

Citation:41 S.W. 909, 140 Mo. 433
Opinion Judge:Robinson, J.
Party Name:Hill v. Meyer Brothers' Drug Company, Appellant
Attorney:Karnes, Holmes & Krauthoff for appellant. Thompson & Wilcox for respondent.
Judge Panel:Robinson, J. Barclay, P. J., Macfarlane and Brace, JJ., concur.
Case Date:July 06, 1897
Court:Supreme Court of Missouri

Page 909

41 S.W. 909 (Mo. 1897)

140 Mo. 433



Meyer Brothers' Drug Company, Appellant

Supreme Court of Missouri, First Division

July 6, 1897

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Karnes, Holmes & Krauthoff for appellant.

(1) An instruction which assumes the existence of facts which are put in issue by the pleadings is always erroneous. Dulaney v. Refining Co., 42 Mo.App. 659; Dowling v. Allen, 88 Mo. 293; Peck v. Ritchey, 66 Mo. 114; Merritt v. Given, 34 Mo. 98; Matthews v. Railroad, 26 Mo.App. 75; Siegrist v. Arnot, 10 Mo.App. 197; Bank v. Crandall, 87 Mo. 208; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; Meriwether v. Railroad, 45 Mo.App. 528; Wilkerson v. Eilers, 114 Mo. 245. (2) The second instruction assumes that plaintiff had in the past physical suffering, mental anguish, loss of sight, and deformity. And for these he asks compensation, and then it assumes that in the future he will undergo mental suffering, disfigurement, impaired vision and incapacity. And again he is to be compensated. (3) The elements of damage in this case should have been limited to the pain suffered, time lost, and permanent injury sustained. Stephens v. Railroad, 96 Mo. 207; Schroeder v. Railroad, 108 Mo. 322; Jacquin v. Railroad, 57 Mo.App. 320; Ross v. Kansas City, 48 Mo.App. 440; Rosenkranz v. Railroad, 108 Mo. 9; Bigelow v. Railroad, 48 Mo.App. 367. (4) The fourth instruction required proof of actual knowledge by plaintiff that this material was explosive, when proof of knowledge of facts which would naturally suggest it was sufficient. Maupin v. Emmons, 47 Mo. 304; Boland v. Kansas City, 32 Mo.App. 8; Vaughn v. Tracy, 22 Mo. 415; Life Ins. Co. v. Smith, 117 Mo. 261; Roan v. Winn, 93 Mo. 503; Kitchen v. Railroad, 69 Mo. 224. Notice is the means of knowledge. Lee v. Turner, 15 Mo.App. 205; Jaggard on Torts, 873, 874; Bradwell v. Pittsburg, etc., Co., 153 Pa. St. 105; Berg v. City of Milwaukee, 83 Wis. 599.

Thompson & Wilcox for respondent.

(1) It is not error for an instruction to assume facts conceded or established at the trial by both parties. State ex rel. v. Koontz, 83 Mo. 332; Davis v. Railroad, 13 Mo.App. 460; Mauerman v. Siemerts, 71 Mo. 101; Auchincloss v. Frank, 17 Mo.App. 43; Carroll v. Railroad, 88 Mo. 248; Fields v. Railroad, 80 Mo. 206; Fullerton v. Fordyce, 121 Mo. 13; Bank v. Hatch, 98 Mo. 378; Pope v. Railroad, 99 Mo. 406; Walker v. City of Kansas, 99 Mo. 653; Sackett's Instructions to Juries [2 Ed. Rev.], p. 19, sec. 17. (2) The second instruction does not assume that plaintiff had endured either physical suffering, mental anguish, loss of sight, or deformity in the past nor that he would endure mental suffering, disfigurement, impaired vision, or incapacity in the future, but only that the jury should compensate him for such of these things as they believed from the evidence he had endured or would endure, thus obliging plaintiff to convince jury of the existence of these things as a pre-requisite for compensation. Bigelow v. Railroad, 48 Mo.App. 373; Haniford v. City of Kansas, 103 Mo. 174; Railroad v. Spanier, 85 Ind. 171; 2 Thompson on Trials, p. 1482; Du Laurens v. Railroad, 15 Minn. 49, 58; Brown v. Railroad, 99 Mo. 377. (3) The amount of the verdict shows no harm was done appellant by instructions on measures...

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