Colby v. Thompson
| Decision Date | 02 December 1918 |
| Docket Number | No. 13043.,13043. |
| Citation | 207 S.W. 73 |
| Parties | COLBY v. THOMPSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge.
"Not to be officially published."
Action by Harry M. Colby against Joseph A. Thompson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
W. G. & G. T. Pendleton and Roy D. Williams, both of Boonville, for appellant.
George D. Brownfield, W. F. Johnson, and John Cosgrove, all of Boonville, for respondent.
Plaintiff sued defendant to recover damages for an assault committed upon him. There was a verdict for $350 actual and $650 punitive damages, and defendant has appealed.
While the petition alleges facts from which it might be implied that plaintiff would suffer in the future from the injuries complained of, yet there was no such allegation, nor was there anything alleging or implying that the injuries were permanent. Nevertheless, plaintiff's instruction not only authorized the jury to consider damages which might reasonably result "in the future," but they might consider also whether the injuries were "permanent." This was error. McDonald v. St. Louis, etc., It. Co., 185 Mo. App. 75, 111, 146 S. W. 83, and cases cited. There was no evidence that the injury would be, or was, permanent, and the instruction should not have included permanency for that reason. Steinman v. St. Louis Transit Co., 116 Mo. App. 673, 94 S. W. 796. There is a vital difference between suffering or damages in the future, that is, after the trial, and damages from permanent injury. The former will persist after the trial, but may not continue to exist; while the latter will last throughout life. Wood v. Chicago, etc., H. Co., 119 Mo. App. 78, 95 S. W. 946. We cannot say that the inclusion of these elements in the instruction on the measure of damages did not "materially affect the merits."
The evidence was that plaintiff was a drinking man, and that after the assault he was unable to sleep for several weeks. A physician was put on the stand as an expert to prove that his inability to sleep should be attributed to the injury and not to his alcoholic habits. While we think that this was a question in which expert testimony was permissible, yet the questions should not be propounded to the expert in such way as to substitute his judgment for that of the jury's as to which was the cause. He should have been asked whether the sleeplessness could result from such an injury, and thus...
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