Hance v. United Rys. Co.

• Decision Date: 08 June 1920
• Docket Number: No. 16106.,16106.
• Citation: 223 S.W. 123
• Parties: NANCE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

223 S.W. 123

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

No. 16106.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Rehearing Denied June 25, 1920.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer Judge.

"Not to be officially published."

Action by John H. Hance against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur, otherwise reversed and remanded.

Charles W. Bates, T. E. Francis, and Chauncey Clarke, all of St. Louis, for appellant.

Duggan & Collins, of St. Louis, for respondent.

BIGGS, C.

Plaintiff was injured by the alleged negligent sudden starting of one of defendant's street cars as he was in the act of boarding the car at a regular stopping place. He recovered a judgment against the defendant for $1,000, from which an appeal has been duly prosecuted to this court.

Stating the evidence would serve no useful purpose except in so far as it may be necessary to pass upon the specifications of error made by the defendant.

The complaints lodged against the judgment are: First, error in giving plaintiff's instruction on the measure of damages; second, permitting a physician to testify as to injuries received by plaintiff that were not pleaded in the petition; and, third, excessive verdict.

I. Plaintiff's petition alleged loss of earnings in the sum of $93. The evidence in his behalf tended to prove that he was kept from his work on account of the injury for a period of 24 days; that his wages from day to day varied according to the amount of work he did. From plaintiff's testimony the jury might find that the plaintiff would have made for the 24 days as much as $8 per day, or the sum of $192. There is no question of lost future earnings involved in the case. When it came to instructing the jury, the court placed no limit upon the amount of lost earnings; consequently it may be said that under the instructions of the court the jury could place a value of $192 for the item of lost earnings, when the petition only asked a recovery on account thereof of $93.

For the petition to limit the amount of special damages suffered and the instruction to fail to place any limit thereon is error. Whether harmful, or reversible error, depends upon the facts of each case. In the instant case, if there was a question of lost future earnings involved, it would be impossible to know what part of the verdict was covered by such lost earnings. Under the facts the jury, at most, could have found that plaintiff lost $192 in earnings. The limit of such recovery should have been placed by the instruction at $93, as alleged in the petition. It is therefore plain that the error can be cured by a remittitur of the difference between the two figures, namely, $99.

In view of the fact that under the evidence hereinafter stated the verdict cannot be said to be excessive, and considering the fact that the greatest loss that the defendant could have suffered under the evidence by reason of their being no limit to the recovery of special damages in the instruction was the sum of $99, we hold that the error in failing to limit the amount of recovery on account of lost earnings could not be said to be harmful or prejudicial to the defendant, provided the plaintiff will remit the sum of $99. Whatever loss defendant could have suffered by reason of the alleged error will be absolutely cured by the remittitur. Shinn v. Railroad, 248 Mo. 173, 154 S. W. 103; Sang v. City of St. Louis, 262 Mo. 454, 171 S. W. 347; State en rel. v. Reynolds, 257 Mo. 19, 165 S. W. 720.

The cases of Finley v. United Railways Co., 238 Mo. 6, 141 S. W. 866, and Radtke v. St. Louis Basket & Box Co., 229 Mo. 1, 129 S. W. 508, are distinguishable from this case, in that in those cases the question was involved of not only past earnings, but also the question of what earnings would be lost to the plaintiff in the future by reason of the injury. In those cases the amount of lost earnings was limited in the petition but not in the...