Crews v. Schmucke Hauling & Storage Co.

• Decision Date: 03 July 1928
• Docket Number: No. 27105.,27105.
• Citation: 8 S.W.2d 624
• Court: Missouri Supreme Court
• Parties: CREWS v. SCHMUCKE HAULING & STORAGE CO.

8 S.W.2d 624

CREWS v. SCHMUCKE HAULING & STORAGE CO.

No. 27105.

Supreme Court of Missouri, Division No. 1.

July 3, 1928.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Suit by Moody Crews against the Schmucke Hauling & Storage Company. Judgment for plaintiff, and defendant appeals. Affirmed on plaintiff's filing remittitur; otherwise reversed and remanded.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

John F. Clancy, Mark D. Eagleton, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

LINDSAY, C.

This is a suit for personal injuries. The plaintiff asked for damages in the sum of $10,000, and had a verdict and judgment in that amount. The only assignment of error made upon appeal is that the verdict and judgment is excessive.

The defendant company was employed to move a safe, which was on the balcony of a building. The work was being done by the plaintiff and two coemployees. Plaintiff was acting as foreman, but under the supervision of the manager of the defendant company. The safe was somewhat more than five feet in height, and weighed between 1,500 and 2,000 pounds. A rigging was arranged for the moving of it out of the balcony, but it was found that the rigging was not high enough to move the safe in its upright position, and the manager of defendant company ordered the plaintiff and his coemployees to lay the safe over, so the rigging could be hooked to it. The safe was too heavy to be thus handled by only three men. In turning the safe over, by reason of its weight, plaintiff and his companions lost control of it and it fell over, scraping plaintiff's left leg from the thigh down to the knee, and also causing a fracture of the cuneiform bone of the instep of his left foot. The injury to the plaintiff's thigh gave him some pain, but it was superficial, and healed up in about a week and a half. By the fracture of the cuneiform bone of his left foot he was disabled from work for two months and four days. In his work for defendant he acted "off and on" as foreman, or "pusher," and when so doing received $13 per day, and when not so acting his wages were $12 per day. After he was able to resume the same kind of work, for another company, his wages were $12 per day, and he had been continuously employed from the time of his resumption of work until the time of the trial. As the result of the fracture and healing of the cuneiform bone, there was a lump on the instep of his left foot, described by one medical witness as being of the size of a pigeon's egg, and by another as being of the size of a quail's egg. Plaintiff's medical witness, speaking of this lump, said:

"There is a sort of calcification there on this cuneiform hone, which interferes with the proper action of the foot when he steps on it, and this in turn has a tendency to fatigue the foot at the end of the day and cause a swelling."

The plaintiff himself testified that his foot would swell after being on it all day, and that he bathed it in hot water and rubbed it with Sloan's liniment. He testified at the time of the trial he had been working steadily for one employer for the past eight months, and the whole testimony is to the effect that the only time he had lost from work as the result of his injury was the two months and four days immediately following his injury.

Counsel for respondent concede in their brief that this court and other appellate courts of this state are committed to the proposition that, where there is no error in the record, except that the judgment is for too large an amount, the court need not reverse the judgment and remand the cause for a new trial, but may allow or conditionally require the excess to be remitted, and let the judgment stand for the correct amount. Among the more important cases dealing with the foregoing question, mention may be made of Burdict v. Mo. Pac. Ry. Co., 123 Mo. 221, 27 S. W. 453, 26 L. R. A. 384, 45 Am. St. Rep. 528, a case en banc, where the question was discussed at length; also Cook v. Globe Printing Co., 227 Mo. 471, 127 S. W. 332, another case en banc. In the last-named case (pages...