Wilbur v. Southwest Missouri Electric Railway Co.
| Decision Date | 27 February 1905 |
| Parties | B. E. WILBUR, Respondent, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
McReynolds & Halliburton for appellant.
(1) The petition of plaintiff in its allegation, is not sufficient to authorize the introduction of any evidence as to the kind character and extent of his injuries, if any. R. S. 1899 sec. 592. (2) A plaintiff must state the facts constituting his cause of action. He cannot state one and prove another nor if he states none, can he supply the defect by evidence at the trial. Field v. Railway, 76 Mo. 617; Sidway v. Stock Co., 163 Mo. 172; 13 Ency. of Law and Procedure, 183; Lanitz v. King, 93 Mo. 519; Pier v. Heinrichoffen, 52 Mo. 336; State to use v. Bacon, 24 Mo.App. 406; Story v. Ins. Co., 61 Mo.App. 538; Waldhier v. Railroad, 71 Mo. 518; Gamage v. Bushnell, 1 Mo.App. 418; Kerr v. Simmons, 82 Mo. 275; Scott et al. v. Robards, 67 Mo. 289; Rush v. Brown, 101 Mo. 590; McIntosh v. Railway, 103 Mo. 131; Muth v. Railway, 87 Mo.App. 433. (3) Plaintiff's evidence of injury to his stomach and liver, should have been rejected because not pleaded. McIntosh v. Railway, 101 Mo. 134; Muth v. Railway, 87 Mo.App. 433; Magrane v. Railway, 183 Mo. 119, 81 S.W. 1158; Pinney v. Berry, 61 Mo. 366; Mellor v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669; Slaughter v. Railroad, 116 Mo. 269-275; Kruger v. Railway, 94 Mo.App. 458. (4) The instruction given for plaintiff was erroneous in that it authorized a recovery for things not alleged in petition, to-wit, loss of time and earnings and for medical expenses of which there was no evidence. Slaughter v. Railroad, 116 Mo. 275; Paquin v. Railroad, 90 Mo.App. 118; Boyd v. Transit Co., 108 Mo.App. 303, 83 S.W. 287; Summers v. Ins. Co., 90 Mo.App. 701; Brown v. Railroad, 80 Mo. 459. And further by authorizing a recovery for permanent injuries of which there was no evidence. (5) Under the petition in this case plaintiff was not entitled to the value of his time or what he earned or could have earned or his loss of earnings. Mellor v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669. (6) The allegation in plaintiff's petition that he was injured in body and mind, is not a statement of an issuable fact, but rather a legal conclusion. Rush v. Brown, 101 Mo. 590; Sidway v. Stock Co., 163 Mo. 372; Brewer v. Swartz, 94 Mo.App. 396; Leet v. Bank, 141 Mo. 582; Young v. Schofield, 132 Mo. 650. (7) The submission of the case on the single instruction for plaintiff was error, as no definite issue was submitted to the jury. Allen v. Transit Co., 183 Mo. 411, 81 S.W. 1146; Boyd v. Transit Co., 108 Mo.App. 303, 83 S.W. 287. (8) Plaintiff's instruction authorizing recovery for permanent injuries should have been refused for the reason that there is no evidence in the record that plaintiff was permanently injured. Schwend v. Transit Co., 105 Mo.App. 534, 80 S.W. 40; Caplin v. Transit Co., ___ Mo.App. ___.
Howard Gray and D. M. Roper for respondent.
(1) The petition in this case is very much like one in the case of Brown v. Railway, 99 Mo. 310; Ins Co. v. Tribble & Pratt, 86 Mo.App. 546; Price v. Protection Co., 77 Mo.App. 236; Grace v. Nesbitt, 109 Mo. 9; Garth v. Caldwell, 72 Mo. 622; Hughes v. Carson, 90 Mo. 399; Schubach v. McDonald, 179 Mo. 163. (2) The court committed no error in permitting the plaintiff to give evidence of injury to his stomach. The evidence showed that immediately after the injury there was a mark and bruise clear across his body in the region of his stomach and that a hard cake formed at this place. Mabrey v. Road Co., 92 Mo.App. 596. (3) The court did not commit error in permitting the plaintiff to prove loss of time. Brake v. K. C., 100 Mo.App. 611; Mabrey v. Road Co., 92 Mo.App. 596; Smith v. Railroad, 119 Mo. 246; Schmitz v. Railroad, 119 Mo. 256; Gurley v. Railroad, 122 Mo. 141.
This is a suit for damages resulting from personal injuries. The verdict and judgment were for plaintiff. Defendant appealed. On August 12, 1903, plaintiff was a passenger upon a car propelled by electricity which defendant was running for the carriage of passengers upon its line of railroad in Jasper county. The car collided with another. Plaintiff testified that as a result thereof he was thrown violently from the car against an adjacent fence from which he rebounded to the ground.
Over the objections of defendant the plaintiff was permitted to introduce evidence of various bodily injuries, chiefly internal, sustained from his violent projection and fall. The ground of the objections was the absence from the petition of allegations of the existence of the particular injuries which the evidence admitted at the trial tended to prove. The averment is that plaintiff "was greatly injured in body and mind and suffered great permanent injury." It is true, as urged by defendant, that all of the facts constitutive of the cause of action must be pleaded in the petition. [Sidway v. Mo. Land, etc., Co., 163 Mo. 342, 63 S.W. 705; Lanitz v. King, 93 Mo. 513, 6 S.W. 263; Pier v. Heinrichoffen, 52 Mo. 333; Leete v. Bank, 141 Mo. 574, 42 S.W. 1074.] But defendant in making application of this rule assumes an incorrect premise. It is the fact of injury that is elemental, not the nature nor character of the particular wounds and hurts which necessarily and naturally result from the negligent act. They serve to create the substantive fact and are included within its bounds. Evidence of particular bodily injuries received by plaintiff in the wreck resulting from defendant's negligence was admissible under a general averment of injury to the body. [Brown v. Railroad, 99 Mo. 310, 12 S.W. 655; Seckinger v. Mfg. Co., 129 Mo. 590, 31 S.W. 957; Coontz v. Railroad, 115 Mo. 669, 22 S.W. 572; State ex rel. v. Bacon, 24 Mo.App. 403; Pinney v. Berry, 61 Mo. 359; Barrett v. Telegraph Co., 42 Mo.App. 542.]
It is not to be inferred defendant would not have been entitled to a more definite statement had he by proper motion sought to be informed of the nature of the injuries claimed. Without filing such motion defendant answered putting in issue the fact of any injury. In this condition of the record the objections, made for the first at the trial, came too late. [Seckinger v. Mfg. Co., supra; Grove v. Kansas City, 75 Mo. 672; Spurlock v. Railroad, 93 Mo. 530, 6 S.W. 349; Bowie v. Kansas City, 51 Mo. 454.]
But one instruction was asked and given on plaintiff's behalf. Its scope was confined to two issues--the injury and measure of damage. Defendant insists the duty devolved upon plaintiff to cover with appropriate instructions all of the issues involved. This criticism is without merit. The answer admitted the existence of the relation of common carrier and passenger and the fact of the collision of the car upon which plaintiff was riding with another of defendant's cars. It omitted in any manner to put in issue the averment of negligence. In thus admitting the collision, negligence was conceded. In cases of this kind--injury resulting from collision--the burden primarily rests upon plaintiff to plead and prove negligence. The burden of proof shifts to the defendant when the fact of the collision is shown. [3 Thompson on Neg., sec. 2754; Allen v. Transit Co., 183 Mo. 411, 81 S.W. 1142.] Under the admissions the issues were narrowed to the injury and damage and these were fully covered by the instruction.
In this instruction the jury was directed to consider "the extent if any to which he has been prevented and disabled by reason of said injuries from working." The petition charged that plaintiff "during all said time has been absolutely unable to perform any labor and is disqualified from performing his ordinary avocations of life." Plaintiff introduced evidence of his occupation--farm labor--and over defendant's objections was also permitted to introduce evidence of loss of time and earnings. It is the rule that damages of this kind not being such as necessarily and naturally result from injury to the person, must be specially pleaded in the petition. [Mellor v. Railroad, 105 Mo. 455, 16 S.W. 849; Slaughter v. Railroad Co., 116 Mo. 269, 23 S.W. 760.] The averment, though indefinite, was sufficient to warrant the admission of evidence of loss of time and the value thereof. [Mabrey v. Gravel Road Co., 92 Mo.App. 596, 69 S.W. 394; Gerdes v. Iron & Foundry Co., 124 Mo. 347, 27 S.W. 615; Mellor v. Railroad, supra; Brake v. Kansas City, 100 Mo.App. 611, 75 S.W. 191; Smith v. Railroad, 119 Mo. 246, 23 S.W. 784; Gurley v. Railroad, 122 Mo. 141, 26 S.W. 953.] We consider Gurley v. Railroad, supra, decisive. In that case the allegation was, "that by reason of said injuries plaintiff had suffered great bodily and mental anguish, has been unable to follow his business or perform any kind of labor." The right to prove loss of earnings was sustained in the case under consideration. And in Britton v. St Louis, 120 Mo. 437, 25 S.W. 366, under the allegation that plaintiff was incapacitated from labor "besides loss of time" without the direct charge of diminished earnings, it was held proper for plaintiff to prove such loss. These cases are apparently in conflict with Slaughter v. Railroad, and Coontz v. Railroad, supra, and ignore the rule, which until then had been observed, of admitting, under a plea of disability to labor, evidence of that fact as tending to show the extent of the physical injury, but not evidence to establish facts required to be specially pleaded. Following the decision in Gurley v. Railroad, supra, we are constrained to hold the evidence admissible.
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