Burns v. Wilson

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 179
• Parties: KATE BURNS, by THOMAS BURNS, her Guardian, Respondent, v. HENRY WILSON, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 179

KATE BURNS, by THOMAS BURNS, her Guardian, Respondent,

v.HENRY WILSON, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. Where the aggregate of damages claimed in a petition was $1,200, and part of the claim, stated at $300, was excluded by an instruction, a verdict for $1,200 cannot be sustained.

2. It is erroneous to give an additional instruction to the jury after argument and submission of the cause, unless it appear that the party complaining could not have been prejudiced thereby, or that it was necessary in order to rectify some omission or oversight.

3. The relation of father is not essential to the position of next friend of an infant plaintiff.

4. It is too late to object, in this court, that the jury were sent out of the court-room to hear the arguments of counsel, when it does not appear that any unfairness resulted, or that any objection was offered at the time.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Thomas S. Espy, for appellant, cited: Sec. 9, ch. 110, Practice in Civil Cases, Wag. Stat. 1001; State, to use, v. Matson, 38 Mo. 489; Winston v. Taylor, 28 Mo. 86; Owens v. Hannibal & St. Jo. R. R. Co., 58 Mo. 386;Norton v. Ittner, 56 Mo. 351; Art. 9, sec. 47, Practice in Civil Cases, Wag. Stat. 1046; McCloskey v. City of St. Louis, 50 Mo. 89; Brown v. Hannibal & St. Jo. R. R. Co., 37 Mo. 299; Vaughan v. Scade, 30 Mo. 600; Scott et al. v. Russell, 39 Mo. 407; Art. 8, sec. 3, Practice in Civil Cases, Wag. Stat. 1034; Dunn v. Raley, 58 Mo. 136; Gibson v. Chouteau, Min., 45 Mo. 178; Turner, Exr. of Benoist, v. Christy, 50 Mo. 148; Fitzgerald v. The State, 14 Mo. 413; Gutzwieler v. Lockman, 39 Mo. 100; Bateson v. Clark, 37 Mo. 31-34; Mortland v. Hatton, 44 Mo. 58; Richardson v. George, 34 Mo. 104; Parker v. Moore, 29 Mo. 218; Brown v. Hannibal & St. Jo. R. R. Co., 37 Mo. 298; Scott et al. v. Russell, 39 Mo. 410, ut supra; Gibson v. Chouteau's Heirs, 45 Mo. 173.

Pope & McGinnis and William Hensley, for respondent, cited: Dowzelot v. Rawlings, 58 Mo. 75; DeGraw v. Prior, 53 Mo. 313; Jones v. Steele, 36 Mo. 324; Montgomery v. Tipton, 1 Mo. 446.

LEWIS, J., delivered the opinion of the court.

Plaintiff, an infant under fourteen years of age, sues for damages by reason of the falling of a marble slab on her foot, at the defendant's marble yard. The petition states that in consequence of the injury “she was forced to incur great trouble and expense to herself, losing the value of her services for a long space of time, and her physician's bills and medical expenses amounting to more than $300,” etc. She concludes thus: “Plaintiff alleges that, altogether, she has sustained damages to the amount of at least $1,200, for which she prays judgment.”

The court, by an instruction, very properly withdrew from consideration by the jury all claim of compensation for loss of services and for medical or other expenses; yet the verdict was for $1,200. This was $300 more than the plaintiff claimed for the injuries which the jury were authorized to consider. The sum of $300 is distinctly specified in the petition for loss of service, medical expenses, etc., as a part of the aggregate of $1,200 for all the damages sustained. When this item was withdrawn there was left the sum of $900, beyond which the jury could not go in estimating the damages for other injuries. There is in this error sufficient ground for reversal.

It appears that, after the argument and submission of the cause, the court, upon request from the jury, gave them an additional instruction, defendant objecting and excepting to that action. By Wagner's Statutes, 1046, section 47, “when the evidence is concluded, and before the case is argued or submitted to the jury, or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing, and shall be given or refused; the court may, of its own motion, give like instructions.” The manifest intent of this provision is that counsel may have the benefit of the instructions in their arguments before the jury, and thus avoid resting their cause upon any proposition of law which the court may not sustain. If this be disregarded, the court may, when the argument is concluded, put an entire new face upon the application of the law to the facts. Counsel will then have had no opportunity to illustrate this application in their clients' behalf, as the law evidently intends they should. In Cluskey v. The City of St. Louis, 50 Mo. 89, the court, after the argument closed, at the instance of defendant, withdrew from the jury, by instruction, a written contract which had been introduced for the defense. Plaintiff having appealed, the Supreme Court refused to reverse on that ground, saying that the withdrawal “could have done the plaintiff no harm. If it had any effect at all, it was in his favor.” In Dowzelot v. Rawlings, ...