Campbell v. City of Chillicothe

• Decision Date: 05 January 1914
• Citation: 162 S.W. 309,175 Mo. App. 436
• Parties: CAMPBELL v. CITY OF CHILLICOTHE.
• Court: Missouri Court of Appeals

162 S.W. 309

175 Mo. App. 436

CAMPBELL v. CITY OF CHILLICOTHE.

Kansas City Court of Appeals. Missouri.

January 5, 1914.

1. DAMAGES (§ 37)—EVIDENCE—SPECULATIVE DAMAGES.

In an action against a city for personal injuries which resulted in the loss of earnings, evidence that plaintiff, a traveling man, had a drawing account of $100 per month to which he was entitled, regardless of the amount of his sales, will support a recovery for loss; the salary not being speculative as would be prospective commissions.

2. DAMAGES (§ 144) — LOSS OF EARNINGS — PLEADING—NECESSITY.

Loss of earnings is a special damage, which must be pleaded.

3. APPEAL AND ERROR (§ 907) — REVIEW — PRESUMPTION.

Nothing to the contrary appearing, the appellate court must assume that the jury would not bring in a verdict contrary to the evidence.

4. DAMAGES (§ 210)—INSTRUCTIONS.

In a personal injury action, where the petition alleged $1,500 as a loss of earnings, and the evidence showed a loss of only a little over $400, it was not necessary for an instruction upon the measure of damages to limit the recovery for loss of earnings to the amount alleged in the petition, even though no greater recovery could be had, for the appellate court must assume that the jury would not award damages in excess of those shown by the evidence.

5. DAMAGES (§ 160)—PROOF—VARIANCE.

In a personal injury action, where the petition alleged that plaintiff was put to large expense for medicine and physician's services, proof that plaintiff had purchased medicine and had secured medical services on credit is sufficient to support a recovery, not constituting a variance.

6. DAMAGES (§ 130) — PERSONAL INJURY MEASURE OF DAMAGES.

An award of $2,000 in a personal injury action against a city for injuries consisting of a broken leg is not excessive, where, in addition to that injury, plaintiff suffered a pecuniary loss of $600.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Thomas C. Campbell against the City of Chillicothe. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Taylor, F. W. Ashby, and Frank Sheetz, all of Chillicothe, for appellant. Scott J. Miller, of Chillicothe, and Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued defendant city in the circuit court of Livingston county to recover damages for personal injuries he alleges were caused by negligence of defendant. The action was sent to Linn county on change of venue where it was tried, resulting in a judgment for defendant. On appeal allowed to the Supreme Court the judgment was reversed and the cause remanded. 239 Mo. 455, 144 S. W. 408, 39 L. R. A. (N. S.) 451. Afterward the cause was sent to Randolph county on a second change of venue. A trial in the circuit court of that county resulted in a verdict and judgment for plaintiff in the sum of $2,000, and defendant appealed.

The evidence introduced at the second trial is substantially the same as that considered by the Supreme Court on the former appeal, and we refer to that decision for a statement of the facts of the case. The only questions raised by defendant for our determination relate to the second and third clauses of plaintiff's instruction on the measure of damages, which was as follows: "If the jury find for the plaintiff, they should assess his damages, if any, at such sum as they believe from the evidence will be a fair compensation to him not, however, to exceed the total sum sued for, $10,000: First, for any physical pain and mental anguish suffered and endured by him on account of said injuries, if any; second, for loss of time and salary, if any, which the jury may believe from the evidence he has sustained as a direct consequence by reason of the injuries, if any; third, for the reasonable value of any expenses necessarily incurred, if any, for medicine and physician's services, which the jury may believe from the evidence the plaintiff has directly sustained on account of the injuries, if any, not to exceed $150, the sum sued for."

The allegations of the petition referring to special damages are that plaintiff "was put to large expense for physician's services and medicine in the sum of $150," and that plaintiff "was traveling salesman for a large boot and shoe company, and received from said company a large compensation for his services, as a traveling salesman; that as a direct consequence he was unable to represent said company as its traveling salesman for a period of nearly six months, and by reason thereof said salary and compensation was not paid to him by said boot and shoe company, to his damage in the sum of $1,500."

Plaintiff testified, and the testimony is uncontradicted and was the only evidence introduced on the issue of special damages, that his reasonable expense for physician's services was $100, and for medicine about $30. As to loss of earnings, he stated that at the time of his injury he was employed as a traveling salesman by a wholesale boot and shoe merchant, and that under the terms of his contract of employment he had a drawing account of $100 per month, and in addition was to be allowed a commission of 3 per cent. on his sales in excess of $40,000, per year. He lost his salary for the time his injuries prevented him from working, which the evidence shows was...