Merritt v. Mantony

• Decision Date: 08 January 1962
• Docket Number: No. 2,No. 48585,48585,2
• Citation: 353 S.W.2d 768
• Parties: Melvin MERRITT, Appellant, v. J. J. MANTONY, doing business as A. A. A. Asphalt Company, Respondent
• Court: Missouri Supreme Court

Page 768

353 S.W.2d 768

Melvin MERRITT, Appellant, v. J. J. MANTONY, doing business as A. A. A. Asphalt Company, Respondent.

No. 48585.

Supreme Court of Missouri, Division No. 2.

Jan. 8, 1962.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 12, 1962.

Alfred B. Couch, Terrance W. Imes, Kansas City, for plaintiff-appellant.

John R. Baty, Fred J. Freel, Kansas City, Pew, Taylor, Sheridan & Baty, Kansas City, of counsel, for defendant-respondent.

STOCKARD, Commissioner.

In this rear end collision case, wherein plaintiff sought damages in the amount of $35,000 the jury returned a verdict for defendant and plaintiff has appealed from the ensuing judgment.

Plaintiff was a passenger in a Cadillac automobile which was being driven north on Troost Avenue in Kansas City, Missouri. A short distance north of 59th Street the operator of the Cadillac stopped because of traffic conditions, and while stopped his automobile was struck in the rear by a Ford station wagon being operated by the defendant. It may be assumed that the collision resulted from defendant's negligence. Defendant practically admits this in his testimony. Certainly the jury could so find. At the trial defendant contended that plaintiff was not injured as the result of the collision. Although the burden was on plaintiff to prove he was injured, and not on the defendant to establish that he was not, it may be said that defendant presented evidence which, if believed, would authorize a finding by the jury that plaintiff was not injured, and this issue was directly submitted to the jury by defendant's converse instruction about which there is no complaint on this appeal. On the other hand, plaintiff's evidence, if believed, would authorize a finding of substantial injuries, and this issue was submitted in plaintiff's verdict directing instruction.

Plaintiff was a member of the Kansas City police force but was not on duty at the time of the collision. Immediately after the collision he reported for his regular tour of duty, but later entered the hospital for a short time and was absent from work for seven months. At the time of the collision plaintiff had accumulated 338 days of sick leave at the rate of two and one half days per month. The trial court permitted the defendant to show that during that time which plaintiff did not work following the collision he was paid by the Kansas City police department an amount equal to his regular salary which was charged against his accumulated sick leave. However, at the close of the evidence, and at the request of the plaintiff, the trial court gave instruction 6 in which the jury was told 'that all evidence as to any sums of money received by the plaintiff from the Police Department as sick benefits or pay * * * are withdrawn from your deliberations, and if your verdict is for the plaintiff, said sums paid are not to be considered in any way in diminution of the amount of damages to which plaintiff is entitled, if any, as may be determined by you under instruction No. 5,' the measure of damages instruction.

On this appeal from the judgment entered on the unanimous jury verdict for defendant, plaintiff contends that prejudicial error resulted when the trial court permitted the defendant to present in evidence 'the amount of sick benefits received by plaintiff from the Kansas City Police Department,' and in permitting the defendant to argue that plaintiff had not lost a cent because his medical expense had been paid and he had been paid his wages as sick leave. For the purposes of this opinion we shall assume that the admission into evidence that plaintiff was paid sick leave benefits equal to his wages was...