Hawes v. Kansas City Stock-Yards Co.

• Decision Date: 02 February 1891
• Citation: 15 S.W. 751,103 Mo. 60
• Parties: Hawes v. Kansas City Stock-Yards Company, Appellant
• Court: Missouri Supreme Court

15 S.W. 751

103 Mo. 60

Hawes v. Kansas City Stock-Yards Company, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

The instruction referred to in the opinion reads as follows:

"1. Although the jury should believe from the testimony that the plaintiff had knowledge of the dangerous and vicious character of the horse in question, yet if the defendant's managers also knew of it and after plaintiff had mounted the horse said managers or any one of them whipped or caused the horse to be whipped and thereby rendered it more dangerous and unmanageable, and if, by reason thereof, the plaintiff, without fault on his part and while in the exercise of ordinary care, was thrown from the horse and injured, then they should find for the plaintiff in such sum as they believe will compensate him for his injuries so received, not exceeding the sum of $ 20,000, and by ordinary care is meant such care as a person of ordinary prudence would exercise under the same or similar circumstances."

As defendant's counsel, neither in brief nor argument in this court, have made the point that the evidence at the trial did not justify the submission of the case to the jury it is not thought necessary to make any fuller statement of the facts than appears in the opinion of the court.

Reversed and remanded.

Pratt Ferry & Hagerman for appellant.

(1) The true rule for the appellate court to invoke is this: Where error has intervened in the trial of a case, a presumption of prejudice arises, and unless respondent can show from the record that no prejudice resulted, there must be a reversal. Clark v. Fairley, 30 Mo.App. 335; Deery v. Cray, 5 Wall. 807; Smiths v. Shoemaker, 17 Wall. 630; Railroad v. O'Brien, 119 U.S. 99; Gilmer v. Higley, 110 U.S. 47; Potter v. Railroad, 46 Iowa 399; Stafford v. Oskaloosa, 57 Iowa 748; Reynolds v. Keokuk, 34 N.W. 167; Gillett v. Corum, 5 Kan. 608; Hall v. Jenness, 6 Kan. 356; Thompson on Charging the Jury, sec. 130, and cases cited. (2) If an erroneous instruction as to damages has been given there must be a reversal, because the court cannot tell whether the jury has been affected thereby or not. Duke v. Railroad, 99 Mo. 347, and cases cited; Gill v. Railroad, 37 Hun, 107; Reed v. Railroad, 57 Iowa 23; Hirshberg v. Strauss, 64 Cal. 272; Amer v. Longstreet, 10 Pa. St. 145. See also cases cited in next subdivision of this brief. (3) The first and second instructions given for plaintiff, as to the measure of damages, are erroneous. First. They gave the jury no idea as to what elements were to be considered, which was a question of law. The authorities are abundant that just such instructions are erroneous. 2 Shearman & Redfield on Neg. [4 Ed.] 740; 3 Suth. Dam. 731; Sedg. Meas. Dam. [6 Ed.] 768; Wells on Questions of Law and Fact, 430, sec. 507; Patterson's Railway Accident Law, 468; Ross v. Machine Co., 24 Mo.App. 353; Flynt v. Railroad, 38 Mo.App. 94; Haysler v. Owen, 61 Mo. 270; Stewart v. Clinton, 79 Mo. 603; Stephens v. Railroad, 96 Mo. 207, 215. Second. No claim was made in the petition for a wilful or malicious act, and there could be no recovery on that theory when the petition was founded on defendant's negligence. Gregory v. Railroad, 14 N.E. 228; Railroad v. Bryan, 107 Ind. 51; S. C., 7 N.E. 807; Railroad v. Overton, 20 N.E. 147; Hays v. Railroad, 8 S.W. 491. Third. And there can be no recovery of exemplary damages unless the act was done wilfully and maliciously. Negligence, however gross, is not sufficient. Welsh v. Stewart, 31 Mo.App. 376; Railroad v. Arms, 91 U.S. 489. Fourth. In any event exemplary damages are never awarded unless the petition states a cause of action therefor. Welsh v. Stewart, 31 Mo.App. 376; Zeliff v. Jennings, 61 Tex. 458. Fifth. It being established that exemplary damages were not recoverable, the instructions as to damages are vulnerable in authorizing an assessment therefor. Such is the view taken of like instructions elsewhere. Wheeling v. Wilson, 19 W.Va. 323; Delphi v. Lowery, 74 Ind. 527; Wilson v. Granby, 47 Conn. 69; Keighlinger v. Egan, 65 Ill. 235; Railroad v. Vandever, 36 Penn. St. 298. Sixth. There was no proof of the value of the doctor's bill or expenses incurred. The law is, such expenses are not recoverable without such proof. Duke v. Railroad, 99 Mo. 347, and cases cited. The instructions given in this case on the subject of damages authorized the jury to make a guess on that subject. Stephens v. Railroad, 96 Mo. 207, 215. Seventh. The law is that loss of time, past and prospective, is recoverable. 3 Suth. Dam. 207, 215. But there can be no recovery therefor without proof upon which to base a value. Staal v. Railroad, 107 N.Y. 625; S. C., 13 N.E. 624; Winter v. Railroad, 74 Iowa 448; S. C., 38 N.W. 154. Eighth. In this case there was proof as to what was earned before the injury, so that, as far as loss in this respect in the past was concerned, there can be no complaint, but the length of time in the future for which such assessment is to be made depends upon an introduction of the mortality tables. Sellars v. Foster, 42 N.W. 907; Chase v. Railroad, 39 N.W. 196; Worden v. Railroad, 41 N.W. 26; Powell v. Railroad, 3 S.E. (Georgia) 757; Whelan v. Railroad, 38 F. 15, cases cited in 2 Lacy's Railroad Digest, 404. Ninth. The mortality tables were not offered. The instructions as to damages authorize a consideration of such future loss of time regardless of the probability of life. In this there was error, and under the authority of Stephens v. Railroad, 96 Mo. 207, it had its effect. Tenth. The instructions complained of left to the jury, so far as damages were concerned, the right to assess according to its belief, regardless of evidence, thus distinguishing this element of the cause from the right of recovery, which was to be based upon a belief from the evidence. Ewing v. Runkle, 20 Ill. 449; Ins. Co. v. Mann, 4 Brad. (Ill.) 485; Solomon v. Webster, 4 Col. 353; Ingalls v. Plimpton, 10 Col. 535; Matney v. Grain Co., 19 Mo.App. 107. In view of all the circumstances this error might have had its effect. Stephens v. Railroad, 96 Mo. 207, 215. (4) The plaintiff's first instruction assumes that the horse from which plaintiff was thrown was vicious, dangerous and unmanageable. It is error to assume facts if the evidence thereof is of a dubious character or if there is the least conflict in the evidence. Barr v. Armstrong, 56 Mo. 577, 588; Thompson on Charging the Jury, sec. 47. (5) The first instruction given for plaintiff ignored the question of negligence. First. The charge in the petition was negligence. On such a charge there can be no recovery for a wilful act, and in this case there is no evidence to authorize a submission of a wilful act. Second. To ignore such issue and to say in effect that the act of whipping the horse was negligence per se is erroneous under all the authorities. Shearman & Redfield on Neg. [4 Ed.] secs. 53-54; Meyer v. Railroad, 40 Mo. 151; Staples v. Canton, 69 Mo. 592; Colvin v. Southerland, 32 Mo.App. 77; Huhn v. Railroad, 92 Mo. 450; Barry v. Railroad, 98 Mo. 71; Wagner v. Railroad, 97 Mo. 523. Third. In particular cases much like this the courts have held that the question as to whether the particular act was negligent was for the jury. Phillips v. Wisconsin, etc., Society, 60 Wis. 401; Railroad v. Randall, 50 Tex. 254; Beauchamp v. Mining Co., 50 Mich. 163. (6) Under the evidence the defendant's managers must be held to have been F. E. Short and W. S. Tough. There is no pretense that Short struck the horse. Both Tough and Davidson (if some evidence is to be believed) did strike the animal. Davidson was a mere foreman and no evidence as to his duties was offered. The presumption is, therefore, that he was a coemploye of plaintiff. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410, 413; Murphy v. Smith, 19 C. B. (N. S.) 361. The damages are excessive. All the testimony as to the extent of the injury will be found in the evidence of Hawes, Dr. Meyers and Dr. Seibert.

Wm. Rush, Jr., and L. G. Rowell for respondent.

(1) The objections made to the instructions given for respondent are not well taken. First. They do not assume that the horse had a dangerous and vicious character. Second. Nor was the question of negligence taken away from the jury upon a disputed state of facts. Third. The true rule of damages was laid down for the jury. Waldhier v. Railroad, 87 Mo. 37; Tetherow v. Railroad, 98 Mo. 86. Besides, a party cannot be heard to complain of his adversary's instructions where his own announce the same doctrine. Crutchfield v. Railroad, 64 Mo. 257; Davis v. Brown, 67 Mo. 314; Loomis v. Railroad, 17 Mo.App. 353; Holmes v. Braidwood, 82 Mo. 615; Noble v. Blount, 77 Mo. 24; McGonigal v. Dougherty, 71 Mo. 265; Reily v. Railroad, 94 Mo. 610; Railroad v. Armstrong, 92 Mo. 279. (2) The appellant complains that the jury were not required to "find from the evidence" some of the facts -- that is, that at each step it was not reiterated. We will presume that no juror of average intelligence would fail to understand that the court directed him to be guided by the evidence, although it failed to use that exact expression at each turn. 2 Thompson on Trials, par. 2442 and note 2; Railroad v. Valvey, 104 Ind. 409; Railroad v. Scott, 72 Ind. 196; Railroad v. Sykes, 96 Ill. 162; Railroad v. Morrison, 18 Am. and Eng. Ry. Cases, 47; Ins. Co. v. Buchanan, 100 Ind. 63; McD. v. State, 90 Ind. 320. (3) The damages were not excessive.

Barclay J. Sherwood, P. J., concurring and dissenting.

OPINION

Barclay, J.

This action is to recover damages for personal injuries sustained by plaintiff in consequence of alleged negligence of defendant as proprietor of large stock-yards in ...