Mann v. City of Rich Hill

• Decision Date: 09 January 1888
• Citation: 28 Mo.App. 497
• Parties: GEORGE W. MANN, Respondent, v. CITY OF RICH HILL, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 497

GEORGE W. MANN, Respondent, v. CITY OF RICH HILL, Appellant.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

APPEAL from Bates Circuit Court, HON. CHARLES W. SLOAN, Judge.

Affirmed.

The case is stated in the opinion.

SILAS W. DOOLEY, for the appellant.

I. The record in the wife's suit against the defendant was admissible to show what had been adjudicated therein. Tutt v. Price, 7 Mo.App. 194; Railroad v Traube, 59 Mo. 355; Stewart v. Nelson, 79 Mo 522.

II. The testimony of Dr. Black, as to his bill for services in attending on Mrs. Mann, and that of the plaintiff, as to his wife's suffering, was inadmissible, having been adjudicated in her case. The depositions of Drs. Wooley and Terrill were incompetent; the injury therein mentioned not having been alleged in plaintiff's petition, they were apt to mislead the jury; nor was there any offer to consult them. Sutherland on Dam., 731; Eddy v. Baldwin, 32 Mo. 374; Golsen v. Ebert, 52 Mo. 272; Hipsley v Railroad, 88 Mo. 354; Bank v. Murdock, 62 Mo. 74; Perry v. Ford, 17 Mo.App. 212; Pier v. Heinrichoffen, 52 Mo. 33.

III. Plaintiff's evidence and recovery should have been founded on the injuries alleged in his petition to have occurred on the second day of December, 1885. Weil v. Posten, 77 Mo. 284; Buffington v. Railroad, 64 Mo. 246; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Current v. Railroad, 86 Mo. 62; Murdock v. Brown, 16 Mo.App. 548.

IV. Plaintiff's seventh instruction is in conflict with defendant's instruction number five. State to use v. Nauert, 2 Mo.App. 295; Wood v. Steamboat, 19 Mo. 529. Plaintiff's instruction number seven was too broad; it was apt to mislead the jury without some qualification or explanation with reference to future losses to be sustained on account of the fracture. Belt v. Goode, 31 Mo. 128; Wyatt v. Railroad, 62 Mo. 408; Ely v. Railroad, 77 Mo. 36; Ellet v. Railroad, 76 Mo. 534; Brown v. Railroad, 23 Mo.App. 209; Fitzgerald v. Hayward, 20 Mo.App. 516; Cobb v. Sand Co., 12 Mo. 130; Hoffman v. Perry, 23 Mo.App. 30; Craycroft v. Walker, 26 Mo.App. 469; Gesley v. Railroad, 26 Mo.App. 156; McMurry v. Martin, 26 Mo.App. 437. Plaintiff's instruction number eight is inconsistent with defendant's instruction number five, both in terms and extent. State to use v. Nauert, supra; Singer Co. v. Hudson, 4 Mo.App. 145; Sullivan v. Railroad, 88 Mo. 169; State v. Sims, 68 Mo. 308.

V. Defendant's seventh instruction should have been given; it being in harmony with plaintiff's theory and covered an injury for which plaintiff was not entitled to recover under Dr. Black's testimony. Corister v. Railroad, 25 Mo.App. 619; Sawyer v. Railroad, 37 Mo. 262; Dunn v. Railroad, 21 Mo.App. 198. Value of wife's services and his time are to be proved. Hahn's Adm'r v. Swearzea, 29 Mo. 199; Howard's Adm'r v. Ins. Co., 6 Mo.App. 577; Slayback v. Gerkhardt, 1 Mo.App. 333; Bank v. Westlake, 21 Mo.App. 565; Smith v. Young, 26 Mo.App. 578; Suth. on Dam. 731. Defendant's ninth instruction should have been given; the evidence of fractured ilium having been allowed to go to the jury. Hahn's Adm'r v. Swearzea, supra; Cravens v. Gillilan, 63 Mo. 28; Davis v. Railroad, 13 Mo.App. 449.

VI. The damages are excessive, and are the result of either passion, prejudice, or mistake on the part of the jury. Sawyer v. Railroad, 37 Mo. 241; Goetz v. Ambs, 22 Mo. 170; Pratt v. Blakely, 5 Mo. 205; Trigg v. Railroad, 74 Mo. 152.

W. O. ATKINSON, with RAILEY & BURNEY, for the respondent.

I. All of plaintiff's instructions except one, three, and seven, were given without objection. All of defendant's instructions except seven, eight, and nine, were given without objection. The following facts are admitted: " It is admitted on the part of the defendant that defendant is a city of the fourth class, and was organized under the laws of the state of Missouri, December 22, 1880." With the above admission, instructions numbered one and three, given on the part of plaintiff, correctly stated the law. Russell v. Columbia, 74 Mo. 490; Bonine v. Richmond, 75 Mo. 440; Loewer v. Sedalia, 77 Mo. 431. It is not claimed that any of the instructions given were inconsistent. And if error had been committed, and properly assigned here, defendant participated in it, and cannot complain. Holmes v. Braidwood, 82 Mo. 610; Dunn v. Henley, 24 Mo.App. 579; Noble v. Blount, 77 Mo. 235.

II. Defendant's instructions complained of were properly refused, as ignoring parts of the petition, and other instructions properly covered all substantial issues. All that defendant was properly entitled to was fairly submitted to the jury under the instructions given. And there is no inconsistency between the instructions, and if there is it was not objected to below, and it is now too late to complain. State v. Reed, 89 Mo. 168.

III. The record in the case of Sarah and George Mann against defendant, for injuries to the wife, was incompetent evidence in this case. The husband was simply a nominal party. Blair v. Railroad, 89 Mo. 334; Smith v. City of St. Joseph, 55 Mo. 456. The instruction as to measure of damages in Sarah Mann's case clearly shows that none of the damages sued for in this action were recovered in that. Even if Mrs. Mann did recover for something which the law did not authorize, it is not the fault of this plaintiff. Defendant should have appealed if it was not satisfied. This plaintiff had no control over that case. Blair v. Railroad, 89 Mo. 390 and 391. Dr. Black's medical bill was not included in Mrs. Mann's case. This is uncontradicted. The testimony of Drs. Wooley and Terrell was competent. It did not comprehend matters not sued for in the petition. The evidence and recovery were upon the injuries alleged in the petition.

IV. The court will not reverse the cause merely on account of excessive damages, unless they are such as, under the circumstances, shock the understanding, and induce the conviction that the verdict was the result of passion, prejudice, partiality, or corruption. The damages assessed were not excessive. Sedg. on Measure of Damages [4 Ed.] 713 and authorities; Railroad v. State, 12 Am. and Eng. Ry. Cases, 149; Railroad v. Pedigo, 5 West. Rep. (Ind.) 876; Farish v. Reigle, 11 Grat. 697; Thompson on Car. of Passengers, 576-585; Whalen v. Railroad, 60 Mo. 323; Porter v. Railroad, 71 Mo. 66; Pry v. Railroad, 73 Mo. 124; Gregory v. Chambers, 78 Mo. 294; Railroad v. Rosenzweig, 26 Am. and Eng. Ry. Cases (Pa.) 489; Waldhier v. Railroad, 87 Mo. 37; Smith v. City of St. Joseph, 55 Mo. 456; Pritchard v. Hewett, 91 Mo. 550; 1 Graham & Waterman on New Trials [2 Ed.] 451.

ELLISON J.

This is an action by plaintiff to recover damages for loss of service and companionship, as well as for the expenses incurred, resulting from an injury to his wife on one of defendant's sidewalks. The principal portion of the petition is as follows: " That, between Seventh and Eighth streets aforesaid, between lots 7 and 8, in block 54, of said city, upon the north side of Park avenue aforesaid, the defendant, on the second day of December, 1885, and for a long time prior thereto, unmindful of its duty to the public aforesaid, wrongfully, carelessly, and negligently permitted said sidewalk to become and remain out of repair, in such a manner as to become unsafe and dangerous to foot-travelers using said street; that, at the place and at the time last aforesaid, a plank or board on said sidewalk was loose, broken, and too short, by reason of which said sidewalk was dangerous and unsafe for foot-travelers thereon; that, on or about December 2, 1885, the said Sarah Mann, wife of plaintiff, while traveling along said sidewalk at the place where said plank or board was loose, broken, etc., as aforesaid, without any knowledge upon her part of its loose, broken, unsafe, and dangerous condition aforesaid, and without fault upon her part, while walking along and upon said sidewalk, stepped upon said loose board or plank herself, or the same was stepped upon by one of her companions, by reason of which it became misplaced, threw down and injured the said Sarah Mann, the wife of plaintiff, bruised, wounded, and injured her in her left knee, upon the left side of the abdomen, as well as other portions of her body; that the said Sarah Mann has since the injury aforesaid, and by reason thereof, been under the necessary care and treatment of a physician, unable to attend to her ordinary household and domestic duties, and has been, since the date of said injury as aforesaid, and is now, a constant care to plaintiff. The plaintiff complains that, by reason of the premises, he has been deprived of the help and labor of his said wife, Sarah Mann; has lost her companionship to a great degree; has been put to large expense in consequence thereof; has expended and become responsible for doctor's bills, medicines, hired help and care, for his said wife, Sarah Mann, and also has spent a large portion of his time since said date in waiting upon and taking care of his said wife on account of said injuries, by reason of all of which he has been damaged in the sum of five thousand dollars, for which judgment is asked, together with the costs of this suit."

The evidence for plaintiff tended to support the allegations of the petition, and, if believed by the jury, tended to make out an injury of an aggravated and permanent character. There was a verdict for plaintiff for fifteen hundred dollars, and defendant appeals. Several...