Goyette v. St. Louis-San Francisco Ry. Co.

• Decision Date: 31 March 1931
• Docket Number: 29241
• Citation: Goyette v. St. Louis-San Francisco Ry. Co., 37 S.W.2d 552 (Mo. 1931)
• Parties: GOYETTE v. ST. LOUIS-SAN FRANCISCO RY. CO
• Court: Missouri Supreme Court

37 S.W.2d 552

GOYETTE v. ST. LOUIS-SAN FRANCISCO RY. CO

No. 29241

Supreme Court of Missouri, First Division

March 31, 1931

E. T Miller, A. P. Stewart, and C. H. Skinker, Jr., all of St Louis, for appellant.

Charles P. Noell, Charles L. Moore, and Hensley Allen & Marsalek, all of St. Louis, for respondent.

OPINION

STURGIS, C.

One Alfred Goyette lost his life by being crushed between two freight cars while he was in the employ of defendant as a switchman in its yards at St. Louis. It stands conceded that the defendant was engaged in interstate commerce, and this action is for damages for his death brought by his widow as administratrix of his estate, under the Federal Employers' Liability Act (45 USCA §§ 51-59) and Safety Appliance Act (45 USCA § 1 et seq.). The plaintiff recovered judgment and on this appeal by defendant its liability is not questioned. It stands conceded that the jury was justified in finding that Alfred Goyette came to his death by reason of defendant's violation of the Federal Safety Appliance Act in not having the freight cars in question, and which were being used in interstate commerce, equipped with couplers which coupled automatically by impact, as required by said act. The deceased was thereby required to go between said cars to make a coupling and was crushed in doing so, resulting in his death a few hours later. The jury returned a verdict for plaintiff for $ 23,473. The court required a remittitur of $ 7,000 and then entered judgment for plaintiff for $ 16,473.

The defendant's assignments of error in this court are the following:

'1. The court erred in permitting counsel for plaintiff to make an improper and prejudicial argument to the jury, in overruling defendant's objections thereto, in commenting upon the evidence, and in giving to the jury an oral instruction in connection with overruling defendant's objections to said argument of plaintiff's counsel.

'2. The court erred in admitting irrelevant, incompetent, immaterial and prejudicial evidence on behalf of plaintiff.

'3. The verdict is grossly excessive.'

These errors are found to relate to the measure and amount of damages, and not to defendant's liability.

The plaintiff testified that the husband, at the time of his death, was fifty-six years old, and that she was thirty-nine; that he was earning an average of $ 200 per month; that he was strong, robust, was never sick, and lost no time from his work; that he spent little money on himself, not over $ 50 per month, and the balance he turned over to her to spend as she saw fit; that she had no other income; and that she paid the rent, household expenses, etc. She further testified that she had been married previously and had a daughter about nineteen years old, who lived with herself and husband and was a semi-invalid; that half or more of what she received from her husband she spent on her daughter, but that this was with his approval.

It was shown by defendant that money could be safely invested in St. Louis on real estate security or in good bonds and securities so as to yield 6 per cent. per annum, but that the tax rate was 21/2 per cent. or better; that money at 6 per cent. compound interest would double itself in about twelve years; that deceased's life expectancy was about seventeen years; and that in that length of time the increase by way of interest would make the amount more than two and one-half times the original sum.

To understand better the specific errors assigned here, a part of plaintiff's evidence on the question of how she spent the money received from her husband's earnings will be stated more fully. She testified on direct examination that out of the $ 200 per month earnings, her husband could not have used more than $ 50 per month for himself; that that was her estimate of what he used for himself; that the balance, $ 150 per month, was used for the necessaries of the household and for the care of her daughter. When asked what he did with his money after he got it, she said he usually brought the check home to her but sometimes cashed the check and brought the money home, and that she spent it as she saw fit.

On cross-examination she testified:

'Q. Mr. Goyette knew that you were using a substantial portion of this money for the support of your daughter, did he not? A. Yes, sir, and he was agreeable to that plan. He wanted her taken care of out of this money.

'Q. A certain portion of the money he turned over to you each month was being used for her care and support? A. Yes, sir, and that was with his knowledge and consent right along, all the time.

'Q. I believe you stated that the part of the money turned over to yourself, the best you could estimate it, was around $ 50.00 a month, just for yourself? A. Yes, that would be right. He did without many things, and I also did the same, that she (the daughter) might enjoy them. We thought probably that would help her along. He often said he had railroaded too long, he didn't feel like giving up his seniority to go away for her health, so we did without things that she might enjoy it. If we may have the money left, we could send her where we saw fit for her welfare, and we did send her away on a couple of trips. She improved some.'

On cross-examination of defendant's financial expert on the earning power of money, plaintiff's attorney said:

'I would like to show what would be required with a sum of money to bring it to the income we claim was lost.

'By the Court: All right. They have got the basic figures for that and if they went to school at all, they can figure that for you. That is their business to do.

'Q. What were your figures, Mr. Fox, on that? A. Do you mean at six per cent?

'Q. Yes, on $ 50.00 a month, what do you say for $ 50.00? ($ 600.00 per year for seventeen years equals $ 10,200.00). A. The final sum would be $ 4,000.00 and that would yield at compound interest two and one-half times the approximate figure. Two and one-half times $ 4,000.00 would result in $ 10,200.00 in seventeen years, or just a little more than that. This is figured at the clean cut six per cent, without any deduction for taxes.

'Q. You figure that at say three and one-half per cent -- but let that go because it will just take unnecessary time. As a matter of fact, if you get the full six per cent interest, it would take $ 30,000.00 invested at six per cent, wouldn't it -- six times $ 30,000.00 is $ 1,800.00 a year? A. Yes, surely.

'By plaintiff's attorney: That is all. By defendant's attorney: I object to that last question, your Honor, as not the proper basis for the measure of damages.

'By the Court: I don't know; overruled.

'By defendant's attorney: Not competent because it is not the basis of the rule of law.'

Error is assigned on the admission of this evidence, especially the latter part, as tending to show that it would take $ 30,000 at 6 per cent. interest to yield an income of $ 150 per month or $ 1,800 a year, the amount plaintiff was claiming she received from her husband. We are precluded from ruling on this assignment of error for the reason that it appears that appellant did not make its objection until the question had been answered and the witness excused. There was no motion to strike out the evidence given, but merely an objection to the question. Besides this, appellant saved no exception to the court's ruling.

We will further say that while this is not a proper measure of damages in cases like this, we are not to be understood as ruling that it would be reversible error to allow this matter to be presented to the jury as evidence to be considered along with the other evidence in arriving at a correct verdict under the instructions of the court. On the measure of damages, the court, at plaintiff's instance, gave this instruction:

'The court instructs the jury that if you find for the plaintiff under the other instructions given you, you will assess her damages in such sum as you may find and believe from the evidence is the present cash value of the future pecuniary benefit, if any, of which you may find and believe from the evidence the widow is deprived by the death of Alfred Goyette, according to the circumstances in evidence, making adequate allowance for the earning power of money.'

And, at defendant's instance, the court gave this instruction:

'The court instructs the jury that if you find in favor of plaintiff, then in determining the pecuniary loss to the surviving widow caused by the death of the deceased, you will take into consideration the earning power of money and determine such sum of money as, if paid in cash at this time, would be sufficient to fairly compensate said surviving widow for her pecuniary loss, and you are instructed that in determining the present value of such contributions as she would probably have received from the continued life of the deceased, you will make your calculations on the basis of the amount of your award bearing interest at the highest net rate of interest that the testimony shows can be had on money safely invested and secured, as shown by the testimony in this case.'

Plaintiff's instruction is not criticized, and it is apparent that the two instructions are alike in principle and announce the same rule of law for the guidance of the jury in measuring damages in a case like this. No complaint is or can be made that the jury was not fully and correctly instructed as to the method of arriving at a correct amount of damages. Gulf Colorado & S. F. Ry. v. Mosler, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200; Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117, L. R. A. 1917F, 367; C. & O. Ry. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124; K. C. Southern Ry. Co. v. Leslie, 238 U.S. 599, 35 S.Ct....