Leingang v. Geller, Ward & Hasner Hardware Co.

• Decision Date: 19 June 1934
• Docket Number: 29615
• Citation: 73 S.W.2d 256,335 Mo. 549
• Parties: George Leingang v. Geller, Ward & Hasner Hardware Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 256

335 Mo. 549

George Leingang v. Geller, Ward & Hasner Hardware Company, a Corporation, Appellant

No. 29615

Supreme Court of Missouri

June 19, 1934

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed (upon condition).

S P. McChesney and Will B. Dearing for appellant.

(1) The court erred in giving and reading to the jury plaintiff's Instruction 7, defining the measure of damages, for the reason that subdivision 3 of said instruction permitted a recovery for past loss of earnings by plaintiff without confining the recovery on this item to the amount demanded therefor in the petition. Radtke v. St. Louis Basket & Box Co., 229 Mo. 1; Finley v. United Rys. Co., 238 Mo. 6; Laycock v. United Rys. Co., 290 Mo. 344. (2) The court erred in permitting plaintiff, over the objection of defendant, to prove by Dr. F. G. Pernoud that "the continued hemorrhages" were the result of a tubercular infection and that "trauma weakens the lung and its surroundings so that tuberculosis can be set up." Conditions caused by or resulting from an aggravation of a preexisting or dormant condition are special damages not naturally arising from injuries complained of and must be specially pleaded before they can be proven. Hall v. Coal & Coke Co., 220 Mo. 351; Shafer v Harvey, 192 Mo.App. 502; Hibbler v. K. C. Rys. Co., 292 Mo. 14; Fink v. United Rys. Co., 219 S.W. 679; Thompson v. United Rys. Co., 249 S.W. 105. (3) The court erred in giving and reading to the jury plaintiff's Instruction 5. This instruction directed the jury to allow the plaintiff damages for all injuries which they found from the evidence plaintiff suffered. The instruction thereby directed the jury to compensate plaintiff for injuries not pleaded in the petition. Iron Mountain Co. v. Murdock & Armstrong, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Degonia v. Railroad Co., 224 Mo. 564; McKenzie v. Randolph, 257 S.W. 126; Beave v. Transit Co., 212 Mo. 331. (4) Statements in the closing argument of counsel for plaintiff were grossly improper and prejudicial. The court, in overruling defendant's (appellant's) objections to the remarks of plaintiff's counsel, thereby placed the stamp of approval on them. Haynes v. Town of Trenton, 108 Mo. 123; Evans v. Town of Trenton, 112 Mo. 390; Beck v. Railroad Co., 129 Mo. 7; Jackman v. Ry. Co., 206 S.W. 244. (5) The verdict of ten thousand dollars ($ 10,000) (induced by improper and prejudicial argument and by the reception of incompetent and prejudicial testimony) was grossly excessive.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court did not err in overruling defendant's objections to questions propounded to Dr. Pernoud. (a) The objections made by defendant's counsel were entirely too vague and general to present a question for review on appeal. Coughlin v. Haeussler, 50 Mo. 126; Stone v. Hunt, 114 Mo. 73; Miller v. K. C. So. Ry. Co., 180 Mo.App. 507; Cecil v. Wells, 214 Mo.App. 205; Herrin v. Stroh Bros., 263 S.W. 875. (b) Under the petition and the evidence plaintiff was entitled to recover for tuberculosis of his lungs, brought about by the blow from the wheelbarrow. He was entitled to show that such a blow would have a tendency to weaken the lung and its surroundings, so that tuberculosis could be set up. The questions and answers objected to did not refer to the aggravation of a preexisting case of tuberculosis, as is stated in defendant's brief. Seckinger v. Mfg. Co., 129 Mo. 590; Schultz v. Ry. Co., 319 Mo. 21. (2) The court did not err in giving plaintiff's Instruction 5. (a) The instruction did not permit the jury to consider unpleaded injuries, as defendant contends. The testimony that plaintiff suffered continued hemorrhages as a result of tuberculosis, and that one may have tuberculosis in a latent state without knowing it, was within the allegations of the petition that plaintiff suffered an internal hemorrhage and developed tuberculosis. Secs. 764, 783, 788, 801, R. S. 1929; Gilchrist v. K. C. Rys. Co., 254 S.W. 161; Lyons v. St. Ry. Co., 253 Mo. 160; Costello v. Kansas City, 280 Mo. 590; Gaty v. United Rys. Co., 286 Mo. 520; Johannes v. Laundry Co., 274 S.W. 379. (b) It was not improper to instruct the jury to award plaintiff damages for all injuries, if any, the jury found from the evidence the plaintiff suffered as a direct result of the blow on his chest. Mahany v. K. C. Rys. Co., 254 S.W. 16; Partello v. Mo. Pac. Ry. Co., 141 Mo.App. 162; Pollenger v. Messerschmidt, 260 S.W. 804. (3) The court did not err in overruling defendant's objections to statements made by plaintiff's counsel in his argument to the jury. (a) The objections made during the argument below, and urged here, were too vague and indefinite to present any question for review. Ternetz v. Lime Co., 252 S.W. 65; Burns v. United Rys. Co., 176 Mo.App. 330. (b) Plaintiff's counsel was within the pleadings, evidence and instructions in commenting on the situation disclosed by the X-rays of Dr. Coryell and Dr. Stucke, and in contending that plaintiff could recover for any disease of his lungs suffered by plaintiff as a result of his injury, regardless of the name of the disease. Authorities, point 1 (b), supra. (c) Plaintiff was not required to base his argument on Instruction 6, given for defendant, which was entirely too favorable to defendant in excluding tuberculosis as an element of damages. Appellant should not be heard to complain of any alleged inconsistency between plaintiff's argument and defendant's erroneous instruction, which should never have been given. Harbaugh v. Ford Prod. Co., 281 S.W. 690; Myers v. Railroad Co., 296 Mo. 273; Phister v. Gove, 48 Mo.App. 460; Packard v. Burns, 187 S.W. 617; Heeter v. Book Co., 237 S.W. 906. (4) The petition did not limit plaintiff's loss of past earnings to $ 18 per week, and consequently it was not error for the instruction to omit such a limitation. Bible v. Railroad Co., 169 Mo.App. 519; Smith v. United Rys. Co., 177 Mo.App. 593; Secs. 1257, 1276, 1513, 1550, R. S. 1919. (5) The judgment is reasonable in amount and should not be disturbed. (a) The evidence on this subject should be taken in its light most favorable to plaintiff. Manley v. Wells, 292 S.W. 67; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 335. (b) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co., 227 S.W. 79; Maloney v. United Rys. Co., 237 S.W. 516; Sacre v. Ry. Co., 260 S.W. 88.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This case, reassigned to the writer at the present term, is an action for damages for personal injuries, in which plaintiff recovered judgment for $ 10,000, and defendant appealed. The sufficiency of the evidence to make a case for the jury is not challenged. The appeal presents questions concerning the nature and extent of plaintiff's injuries, the admission of certain evidence, the instructions and remarks of plaintiff's counsel in argument.

Plaintiff was an employee of defendant, a corporation operating a wholesale hardware establishment. His evidence tends to show that at the time of his injury on February 9, 1926, he was assisting in unloading wheelbarrows from a truck, his duty being to receive the wheelbarrows as they were lowered from the truck by the driver thereof. The wheelbarrows were piled high on the truck. The driver started to lower a wheelbarrow, weighing about seventy pounds, to plaintiff standing by the truck to receive it, when the driver, in obedience to a negligent order of defendant's foreman, dropped it. Plaintiff was not in position to receive it and had no time or opportunity to step back. It fell several feet and the end of a handle struck plaintiff in the upper left part of his chest, inflicting the injuries of which he complains. Plaintiff pleads his injuries thus:

"He suffered an internal hemorrhage and was caused to spit blood; a separation was caused between one of his ribs and the cartilage thereof; his ability to breathe was impaired; his lungs and pleura were affected; plaintiff developed chills and fever; and plaintiff has developed tuberculosis; that plaintiff's nervous system was severely injured; that plaintiff has suffered, is suffering and will in the future continue to suffer great bodily pain and mental anguish; that all of said injuries are serious and permanent; that all of the aforesaid parts and organs have been greatly and permanently weakened, impaired and rendered painful."

He testified that when struck he was knocked down and rendered unconscious for a little time; that he went home and by the time he reached the house was so weak and sick and the pain in his left chest and lung was so great that he could hardly "make it up the steps;" he was spitting blood there was a bruise on his chest which later became black and blue. He returned to work next day and worked at light work for about five days, when he visited a Dr. Coryell, employed by defendant and to whom he was sent by the latter. Dr. Coryell sent him to a hospital to have an X-ray of his chest taken after which he again called on the doctor, who told him he "was kind of sprained and injured a little bit but not to amount to much;" gave him some kind of electrical treatment and bound his chest with tape; "that afternoon I took very sick, my fever went up and . . . I started to spit blood." Dr. Coryell treated him several days longer during which time he coughed and "spit up some blood." He complained to Dr. Coryell that he was badly hurt and tried to learn from him the nature and extent of his injury but the doctor declined to tell him, referring him to the defendant. Mr. Fleischner, defendant's...