Linstroth v. Peper
| Decision Date | 03 February 1920 |
| Citation | 218 S.W. 431,203 Mo.App. 278 |
| Parties | WILLIAM H. LINSTROTH, SR., et al., Respondent, v. MADELINE PEPER, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted January 9, 1920.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, judge.
AFFIRMED.
Judgment affirmed.
Bryan Williams & Cave, for appellant.
(1) Where no claim is made for punitive damages, in an action for wrongful death it is error to refer to the pencuniary condition or relative position of defendant in the community. Cyc. 211-212; 13 Cyc. 360; 17 C. J. 1365; Clark v Fairley, 30 Mo.App. 335, 339-40; Berryman v Cox, 73 Mo.App. 67, 70-72; Morgan v. Durfee, 67 Mo. 469. And the court erred in refussing to sustain appellant's motion to discharge the jury when her financial condition was referred to on voir dire. (2) It was error to permit witness Ball to state his conclusions from an experiment because all the conditions necessary to reach a proper conclusion were not shown to exist, and these conditions were not shown to have been the same as at the original event, nor should any experts have been permitted to give his opinions on matters of common knowledge. 17 Cyc, 225; Witte Iron Works v. Holmes, 62 Mo.App. 372, 375; McAnany v. Henrici, 238 Mo. 103, 112-114; 17 Cyc, 284; Riggs v. Railroad, 216 Mo. 304, 327-35; State v. Bass, 251 Mo. 107, 120-25; Helzemer v. Railroad, 261 Mo. 379, 411. (3) (a) In an action by parents for the death of their minor child, the measure of damages is the actual expense of the accident plus the difference between the probable money value of the child's services and the probable expense of his education, support and maintenance, from the time of the accident until he becomes of age. Rains v. Railroad, 71 Mo. 164, 169; Parsons v. Railroad, 94 Mo. 286, 294-301; Schaub v. Railroad, 106 Mo. 74, 93; McGowan v. Steel Co., 109 Mo. 518, 530-38; Leahy v. Davis, 121 Mo. 227, 232-35; Sharp v. National Biscuit Co., 179 Mo. 553, 558-60; Goss v. Railroad, 50 Mo.App. 614, 622-29; Coleman v. Lumber Co., 105 Mo.App. 254, 272-73; Brunke v. Telephone Co., 112 Mo.App. 623, 627-28; Marshall v. Mining Co., 119 Mo.App. 270, 272-75; Calcaterra v. Iovaldi, 123 Mo.App. 347, 353-56; Howard v. Scarritt Estate, 161 Mo.App. 552, 562-63. (b) In such an action evidence is admissible to show the probable earnings of the child from the time of his death until he would have reached his majority, and the exclusion of the evidence of witness Fairbanks on this point was error. Rajnowski v. Railroad, 74 Mich. 20, 26-27; Love v. Railroad, 170 Mich. 1, 8; Sceba v. Railroad, 189 Mich. 308, 319, 321-22; L. &. N. R. R. v. Fleming, 194 Ala. 51, 57-58; Pierce v. Connors, 20 Colo. 178, 181; Atrops v. Costello, 8 Wash. 149, 153-55; K. C. M. & O. R. Co. v. Starr (Tex. Civ. App.), 194 S.W. 637, 640-41; Gulf, etc., R. Co., v. Hicks (Tex. Civ. App.), 202 S.W. 778, 779, 780; Boyd v. Railroad, 249 Mo. 110, 126; Chambers v. Hotel Co., 154 Mo.App. 249, 260; Hawkins v. Railroad, 182 Mo.App. 323, 328.
August H. Bolte and Martin T. Farrow, for respondent.
(1) There was no error in the statement or question of plaintiffs' counsel respecting the family into which defendant had married, or in argument as to value of services. (a) Plaintiff had the right to inquire into the relations, if any, of the jurors with such family, as a basis for exercising challenges. Mahany v. R. Co., 108 Mo. 191, 18 S.W. 895; Saller v. Shoe Co., 130 Mo.App. 712, 109 S.W. 794; Nat. Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21; Boten v. Ice Co., 180 Mo.App. 160, 166 S.W. 883. (b) There was no statement by plaintiffs' counsel that defendant, or said family, was wealthy, such being the mere conclusion (or statement) of appellant's counsel. (c) There is no showing of prejudicial effect upon the jury, and none will be presumed: Tuck v. Springfield Traction Co., 140 Mo.App. 335, 124 S.W. 1097; Allen v. Quercus Lumber Co., (Mo. App.) 190 S.W. 86. (2) (a) Witness Ball's testimony respecting the location of the pole with reference to the alley and its effect on visibility was competent. McPherson v. R. Co., 97 Mo. 253, 10 S.W. 846; Ayers v. R. Co., 190 Mo. 228, 88 S.W. 608; McWhirt v. C. & A. R. R. Co., (Mo.), 187 S.W. 830; judgment affirmed in C. & A. R. R. Co. v. McWhirt, 243 U.S. 422, 61 L.Ed. 826; Standley v. R. Co., 121 Mo.App. 537, 99 S.W. 244; Miniea v. St. Louis Cooperage Co., 175 Mo.App. 91, 157 S.W. 1006. (b) Even if such testimony were incompetent, defendant cannot complain, as her Exhibit "A," between pages 32-33, abstract, shows the same state of facts. McWhirt v. R. Co., ___ Mo. ___, 187 S.W. 830; judgment affirmed in R. Co. v. McWhirt, 243 U.S. 422, 61 L.Ed. 826; Philips v. Geiser Mfg. Co., 129 Mo.App. 396, 107 S.W. 471; Proctor v. Sutherland, 162 Mo.App. 641, 148 S.W. 127; Miniea v. St. L. Cooperage Co., 175 Mo.App. 91, 157 S.W. 1096. (3) The probable value of the child's services was a matter to be determined solely by the jury from their own experience and knowledge, guided by the facts and circumstances of the case. Nagel v. R. Co., 75 Mo. 653; Grogan v. Broadway Fdy. Co., 87 Mo. 321; Parsons v. R. Co., 94 Mo. 286, 299, 6 S.W. 464, 467; Rozenkranz v. Lindell R. Co., 108 Mo. 9, 18 S.W. 890; Schmitz v. R. Co., 119 Mo. 256, 278, 24 S.W. 472, 478; Stotler v. R. R. Co., 200 Mo. 107, 142-143, 98 S.W. 509; Spivack v. Hahn Bakery Co., (Mo.), 6-2-1919, 214 S.W. 166, 168; Blackwell v. v. Hill, 76 Mo.App. 46; Brunke v. M. & K. Tel. Co., 112 Mo.App. 623, 87 S.W. 84, 85; Baldwin v. Harvey, 191 Mo.App. 233, 177 S.W. 1087, 1089. (b) Therefore, so-called expert testimony was incompetent and inadmissible. Gavisk v. Pac. R. Co., 49 Mo. 274; St. L. K. & N.W. R. Co. v. St. L. Union Stockyards Co., 120 Mo. 541, 25 S.W. 399; Benjamin v. Metr. St. R. Co., 133 Mo. 274, 34 S.W. 590; Lee v. Publishers, etc., 155 Mo. 610, 56 S.W. 458; Graney v. R. Co., 157 Mo. 666, 57 S.W. 276; Koenig v. Union Depot R. Co., 173 Mo. 698, 720, 73 S.W. 637; Stotler v. R. Co., 200 Mo. 107, 142-143, 98 S.W. 509; Gage v. St. Louis Transit Co., 211 Mo. 139, 109 S.W. 13; McAnany v. Henrici, 238 Mo. 103, 113, 141 S.W. 633; Kent v. Miltenberger, 15 Mo.App. 480; Smith v. Kansas City, 125 Mo.App. 150, 101 S.W. 1118; Sparks v. Harvey et al., (Mo. App.), 214 S.W. 249, 252. (4) Even had the so-called expert testimony been admissible, there was no foundation laid for its introduction because: (a) The question was improper, as--First. It called for opinions based upon opinions. McAnany v. Henrici, 238 Mo. 103, 112, 141 S.W. 633. Second. It was not based upon the evidence. Root v. Kan. City So. R. Co., 195 Mo. 348, 92 S.W. 621; Hahn v. Hammerstein, (Mo), 198 S.W. 833, 837; Sparks v. Harvey, (Mo. App.) 214 S.W. 249, 252. Third. It did not inquire as to the probable pecuniary value of the child's services to its parents from the time of its death until it would have reached majority (the proper measure of damages), but asked what the earnings of boys would be between the ages of fourteen and twenty-one. Cases cited under head (3) supra, respecting measure of damages. (b) The witness did not qualify himself as an expert in the particular matter. Brands v. St. Louis Car Co., 213 Mo. 698, 112 S.W. 511. (c) There was no sufficient offer of proof. City of Kirkwood v. Cronin, 259 Mo. 207, 168 S.W. 674; Williams v. Williams, 259 Mo. 242, 168 S.W. 616.
Becker, J., not sitting.
Plaintiffs, husband and wife, parents of a son who was killed when of the age of about seven years, bring this action for $ 10,000 damages.
The petition is in the usual form, averring the relationship of plaintiffs to the boy; that defendant was the owner of a motor car propelled by gasoline, and that the boy, son of the plaintiffs, on or about April 20, 1913, while crossing Newstead Avenue at a point between Labadie and Elmbank Avenues, was struck, knocked down and run over and killed by the automobile, and at the time of the accident so carelessly and negligently operated by defendant through her servant as chauffeur, and at such a high and dangerous rate of speed as to cause the accident. Averring that by reason of the injuries to and death of their child, plaintiffs have lost and will lose the value of his services until he would have arrived at the age of 21 years, and were compelled to and did pay out and become indebted in the sum $ 75.75 for the treatment of the injuries to the boy, medical and surgical services, and medicines, and the further sum of $ 210.50 for funeral and burial expenses, judgment is prayed for $ 10,000.
The answer, after a general denial, admitting that plaintiffs are the father and mother of the boy, avers that at the time of the accident the mother was in charge of the boy and was proceeding along Newstead Avenue; that at the time mentioned the boy was too young to be permitted to run in the streets alone and without proper guardianship and control; that while he was in the company and under the immediate charge and control of his mother, she negligently permitted and directed him to cross and run back and forth in the roadway on Newstead Avenue alone and without proper guardianship and control at a place not intended for nor provided for the use of pedestrians; that the injury complained of occurred while this boy was at or near the middle of Newstead Avenue, and occurred by reason of the child negligently coming into the middle of the roadway of Newstead Avenue where he had no right to be and where neither defendant's servant nor any one else had any reason to believe the child would be; that the driver of defendant's automobile could not, by the exercise of due care, have seen the boy in time to have enabled him, by the exercise of due care, to...
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