Burns v. Wilson

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: LEWIS
• Citation: 1 Mo.App. 179
• Parties: KATE BURNS, by THOMAS BURNS, her Guardian, Respondent, v. HENRY WILSON, Appellant.
• Decision Date: 14 February 1876

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;

[1 Mo.App. 180]

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...