Merrill v. City of St. Louis

• Decision Date: 27 June 1882
• Citation: 12 Mo.App. 466
• Parties: HANNAH M. MERRILL, Respondent, v. CITY OF ST. LOUIS ET AL., Appellants.
• Court: Missouri Court of Appeals

12 Mo.App. 466

HANNAH M. MERRILL, Respondent,

v.CITY OF ST. LOUIS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 27, 1882.

1. Damages for physical suffering are not punitive but compensatory.

2. In an action for damages for personal injuries the verdict will not be set aside as being excessive unless it is so clearly excessive as to indicate that the jury were actuated by passion or prejudice.

3. In such an action begun by a married woman it is within the trial court's discretion to allow the husband to be joined as a plaintiff during the trial.

4. The husband may be so joined without amending the petition, if the defendant does not suggest such an amendment at the trial.

5. The joinder of the husband at the trial in such a case does not render a continuance necessary, if the defendant does not claim a surprise.

6. The failure to reswear the jury after a third person has been made a party plaintiff at the trial is not a sufficient reason for reversing the judgment, on appeal.

7. A general judgment against a married woman is not necessarily void.

8. A judgment may be rendered against a husband and wife jointly for a tort of the wife for which she and her husband are jointly liable.

9. The negligence of a married woman in the management of realty the legal title to which is in a trustee for her sole and separate use, by reason of which another receives a personal injury, is her negligence and not that of her trustee.

10. A judgment will not be reversed because of the trial court's failure to give an instruction which was not asked.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

LEVERETT BELL and E. B. WOLFF, for the appellant.

CHARLES T. NOLAND, for the respondent.

THOMPSON, J., delivered the opinion of the court.

Eight distinct points are urged for reversing this judgment.

1. The first is, that the damages awarded by the jury are excessive. In order to consider this point it will be necessary to state briefly the nature of the action, and the evidence. It is a suit against the city of St. Louis and against the defendants for damages sustained by the female plaintiff in falling into a coal-hole in the sidewalk, opposite property the legal title to which was vested in James H. Duffer, as trustee to the sole and separate use and benefit of his wife, the defendant Lucinda M. Duffer. There was evidence tending to show that the hole in question had existed with a cover so small or defectively fastened that it had been a nuisance dangerous to the travelling public for a considerable period of time prior to the accident; that other persons travelling along the sidewalk had fallen into it; that the police department of the city had been notified of it, but that it had not been repaired. The female plaintiff, while going to market, stepped on it; it turned up, and both her legs went into it. Another lady who happened to be walking behind her helped her out, took her to a grocery store near by and bathed her foot, and she then limped home. The injury which she received consisted of a sprain of her right ankle. She called in a physician, who prescribed for it once; she then treated it herself for about six weeks, after which time she commenced visiting a hospital, where it was treated gratuitiously for a considerable length of time,--just how long does not distinctly appear. She paid out no money for medical treatment, nor, so far as appears, for medicines. She testifies that the injury was such that she was confined to her room for several weeks, and for about four months was prevented from attending to her business, which was that of keeping a boarding-house. But there is no direct testimony tending to show what the profits of her business were, or that it was profitable at all, or that she sustained any pecuniary loss whatever; though we suppose, from all the circumstances, a jury might fairly infer that she sustained some loss.

We need not again state the grounds upon which alone courts interfere with the verdicts of juries on the question of damages. The disparity between the award of damages and the evidence must be so great as to indicate clearly that the jury acted in disregard of the evidence, and from passion or prejudice. It is difficult to find evidence in this record which will sustain the award of $2,000, which the jury made. We must suppose that their judgments were influenced by a consideration of the age and sex of the plaintiff, of the aggravated negligence of the city and of the owners of this property in leaving a man-trap to exist in the sidewalk, into which several persons had fallen. This verdict could not be sustained on the principle of punitive damages; and it is not sought to support it on that ground. No instruction was asked for or given to that effect; and until the question is sharply presented to us for decision, we are not prepared to sanction the doctrine that exemplary damages can be given in any case against a municipal corporation. But damages for physical suffering are compensatory, and not punitive; and we may suppose that the jury awarded this large sum principally as a compensation for the very great and long-continued pain which the plaintiff must have suffered. We have no scales with which to estimate the value of this suffering, and consequently we cannot say that the jury, in awarding the sum named, have awarded an excessive sum, much less that they have acted from passion or prejudice.

2. The suit was brought by Hannah M. Merrill alone, as though she were a feme sole. At the trial, after two or three witnesses had been examined for the plaintiff, she testified in her own behalf; and on cross-examination, she admitted that she was a married woman, though she had not lived with her husband for about five years. The plaintiff then moved to amend the petition so as to make her husband a party plaintiff. This was objected to by counsel for the defendant, who asked that the cause be continued. The following colloquy then took place: “ The Court: Upon what ground do you ask for a continuance? Counsel for defendants: Because John Merrill is made a party plaintiff to this action. The Court: If you are surprised in any way, or if it will change your defence, or if you are injured in any way in making any defence you may have in this case, I will continue the case; otherwise the trial will proceed. Counsel for defendants: We can't say that. The Court: Mr. Clerk, enter the fact upon the record that John Merrill, by order of court, is made a party plaintiff to this suit as the husband of Hannah Merrill. Let the case proceed.” Counsel for the defendants excepted to the ruling of the court. Another witness was then called, and the cause proceeded as though nothing had taken place. It was duly entered of record that the court had given the plaintiff, Hannah M. Merrill, leave to amend her petition by making her husband, John Merrill, a party plaintiff to the action; but no amended petition was filed, nor was the petition amended by interlineation, or otherwise.

It is now claimed that it was error to allow this amendment to be made. From the answers made by Mrs. Merrill when she was interrogated with reference to this matter, we incline to agree with the learned counsel for the defendants, that she was consciously concealing the fact of her coverture, and thereby perpetrating a fraud upon the administration of justice. We also agree that, had the learned judge who presided at the trial been of this opinion, he might well, in the exercise of a sound discretion, have refused to allow the amendment to be made. But that is not the question with which we have to deal. We have to consider whether it was error prejudicial to the defendants that the amendment was made. No solid reason has been suggested to us why we should so hold. The statute (1 Rev. Stats., sect. 3568) seems sufficiently broad to cover cases of this kind. It provides: “When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in by an amendment of the petition, or by a supplemental petition and a new summons.” But if the statute is not broad enough to cover such an amendment,--if this was an error,--the fact remains that it was not prejudicial to the defendants; nothing has been suggested to indicate that they were in any way hurt by it; and the next section of the statute commands us not to reverse the judgment for such a reason. It is as follows: “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

3. Then it is claimed that the defendants at least are entitled to an amendment of the petition. There are two answers to this. 1. They did not ask that the amendment should be made in this way, or suggest to the court that they would be prejudiced if it were not made in this way. 2. They do not now suggest, nor can we see, that they were at all prejudiced by it. As the irregularity, if it were one, did not, therefore, affect their substantial rights, we cannot, without disregarding the statute just quoted, reverse the judgment for this reason.

4. It is also objected that, upon the amendment being ordered, the defendants were entitled to a continuance, although they were not able to say that they were surprised or injured. In considering this objection it must be remembered that the court distinctly said to the counsel: “If you are surprised in any way, or if it will change your defence, or if you are injured in any way in making any defence you may have in this case, I will continue the case; otherwise the trial will proceed.” And the counsel for the defendants answered: “We cannot say that.” If they could not say it then, they cannot be permitted to say it now. It is not true, as the learned counsel suggest, that the...