Esque v. United Rys. Co. of St. Louis

• Decision Date: 06 May 1913
• Parties: ESQUE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

157 S.W. 1061

ESQUE v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

Rehearing Denied June 17, 1913.

1. APPEAL AND ERROR (§ 926)—QUESTIONS REVIEWABLE—RULINGS ON EVIDENCE.

Where the ground of objection to a leading question put to a witness on direct examination does not appear in the record, the court on appeal will presume that the objection was to the form of the question as leading and was properly sustained.

2. TRIAL (§ 105)—EVIDENCE—ADMISSIBILITY.

A party who allows without objection the admission of improper testimony may not thereby insist on introducing improper testimony in rebuttal over the objection of the adverse party.

3. TRIAL (§ 252)—INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

Where a husband, suing for a personal injury to his wife, merely showed that he worked about the house and was up at night in consequence of the injuries, and that he would have spent a specified sum had he employed a servant to do what he did, but did not show the value of his time while caring for his wife, an instruction authorizing a recovery of damages which had resulted, and which would be reasonably certain to result in the future, to him from the impairment of his wife's ability to perform domestic services for the family, covered the elements of damages, and a further instruction, authorizing compensation for time spent in caring for the wife, was erroneous, as not sustained by evidence.

4. DAMAGES (§ 37) — PERSONAL INJURIES TO WIFE—ACTION BY HUSBAND.

A husband, suing for a personal injury to his wife, may recover for loss of wages, earnings, or profits in his business, sustained in consequence of caring for the wife; but he must show by evidence the value of his time, the amount of his wages, or the amount of profits lost.

5. TRIAL (§ 252)—INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

Where, in an action by a husband for a personal injury to his wife, the evidence showed that he personally cared for her, and that a specified sum would have been expended if a servant had been employed, but the value of his time was not shown, an instruction on the measure of damages, setting forth correct elements of damages, and erroneously authorizing compensation for time spent in caring for the wife, was erroneous, and a verdict could not be sustained on the theory that the jury merely awarded nominal damages for lost time.

6. APPEAL AND ERROR (§ 930) — PRESUMPTIONS —VERDICT.

The court, on appeal from a judgment in an action for personal injuries, must presume that the jury followed an instruction on measure of damages containing improper elements of damages, in view of the evidence, and that they included in their verdict improper elements.

7. APPEAL AND ERROR (§ 301)—OBJECTIONS —INSTRUCTIONS—NEW TRIAL.

An error in an instruction on the measure of damages, arising from the fact that it included improper elements of damages, need not be attacked in the motion for new trial on the ground of the excessiveness of the verdict, to be reviewable on appeal.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by John E. Esque against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest and Paul U. Farley, all of St. Louis, for appellant. Allen Dale and A. A. Paxson, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, the husband of Mrs. Elizabeth Esque, brought his action against the defendant street railway company, the petition as amended charging that the defendant, unmindful of its duty to safely carry the wife of plaintiff as a passenger, and in violation of its contract so to do, so carelessly and negligently conducted itself in the premises that "by an unusual, sudden and extraordinary jerk in starting and thereupon instantly stopping" the car upon which plaintiff's wife was a passenger, the wife, by this negligence and carelessness and want of skill of defendant's agents in charge of the car, was mangled, bruised and greatly injured, thrown to the floor and against the sides of the car, another passenger in the car being jerked and thrown violently against the wife, whereby her back, hips and spine were sprained and confused, causing her much pain, giving her a severe nervous shock and seriously and permanently impairing her health. By reason of the injuries to his wife plaintiff avers that he has lost her services and will lose them in the future; "that he had suffered the loss of the society and companionship of his wife and has had to devote his personal care and attention to her, and has been put to great expense for doctor's bills, in the sum of $100, medicines, in the sum of $50, nursing and attention, in the sum of $200, directly resulting from her said injuries," damages being claimed in the amount of $5,000.

The answer, after a general denial, pleads contributory negligence on the part of the wife, to which there was a reply.

The trial before the court and a jury resulted in a verdict in favor of plaintiff in the sum of $1,200. Interposing a motion for a new trial and excepting to that being overruled, defendant has duly perfected its appeal to this court.

There are only two errors assigned as grounds for reversal: First, as to an instruction given at the instance of plaintiff on the measure of damages; and, second, as to the exclusion of competent, material and relevant testimony, as it is charged.

Disposing of this last contention first, while the motorman who had been in charge of the car in which plaintiff's wife was injured, was under examination as a witness for the defendant, he was asked: "Was there anything unusual or extraordinary in the starting or stopping of the car?" This question was objected to by counsel for plaintiff, the objection sustained, and it was to this action of the court that the second error above referred to is assigned. Counsel for appellant argue that this was not mere opinion evidence which was sought, but the statement of a fact and was competent evidence. However that may be, and we do not pass upon that proposition, the question was leading, and while the ground of the objection to the question does not appear in the record, the presumption always is in favor of right action on the part of the court, and we may assume that the objection was to the form of the question as leading. That was a good objection.

The learned counsel for appellant contend that plaintiff had himself recognized the necessity of proving the allegation that there was an unusual stop. That may be, but that does not dispense with the necessity of eliciting proof by proper questions. The same counsel further claim that a witness for plaintiff, when under examination by counsel for plaintiff, was asked what kind of a stop he would say that was, and that this opened the matter to defendant. An examination of the abstract shows that the answer of the witness was: "I would say it was very sudden and violent; just a jerk. A sudden, violent stop; unusual. If stopped gradually, it wouldn't have thrown a person off their feet." Counsel for defendant moved that the last sentence of the answer be stricken out, to which counsel for plaintiff assented. Thus it appears that beyond the last sentence of this answer, counsel made no objection whatever to it. It can hardly be contended that because counsel, without objection, had allowed improper testimony to be elicited, he could take advantage of it to the extent of putting in improper testimony himself, that testimony objected to.

The instruction of which complaint is made, and on which the first assigned error is based, in enumerating the elements of damage which the jury were to take into consideration, if they found in favor of plaintiff, told the jury that they might consider: "First, damages (if any) which have resulted, and which will be reasonably certain to result in the future to plaintiff, from the impairment of his wife's ability to perform domestic services for the family; second, damages (if any) resulting to plaintiff from the loss of his wife's society and companionship in the past, as well as in the future; third, the reasonable amount which plaintiff paid, or became liable to pay for doctor's bills not exceeding $100, medicine, not exceeding $50; and, fourth, compensation for time (if any) plaintiff himself was compelled to spend in attending and caring for his said wife, by reason of such injuries, and altogether not to exceed the sum of $5,000."

The error complained of in this instruction is the part of the fourth paragraph which we have underlined.

A very careful examination of the testimony in the case fails to show a scintilla of evidence as to the value of plaintiff's time while caring for his wife. His testimony is that he did work about the house and was up at night and that to have employed a servant he would have been obliged to spend a certain amount of money named. This part of it is fairly covered by the instruction as to the first element of damage, namely, damages suffered by him from the impairment of his wife's ability to perform domestic services for the family. It cannot be held as covering compensation for his own time spent in attending and caring for his wife.

Counsel for respondent, not claiming that there is any evidence as to the value of the husband's time, claims that this instruction was correct under the decisions of our Supreme Court in Smith v. City of St. Joseph, 55 Mo. 456, 17 Am. Rep. 660; Blair v. Chicago & A. Ry. Co., 89 Mo. 383 (referring to a local citation in this at page 389), 1 S. W. 350; and under Kirkpatrick v. Metropolitan St. R. Co., 129 Mo. App. 524, 107 S. W. 1025, a decision by the Kansas City Court of Appeals.

We find nothing in Smith v. City of St. Joseph, supra, sustaining this contention. It is stated in the opinion that the husband in attendance upon his wife had to neglect all of his business and that if he had not cared for her in person he would have...