Moore v. St. Louis Transit Co.

• Decision Date: 30 March 1910
• Citation: 126 S.W. 1013,226 Mo. 689
• Parties: MOORE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

126 S.W. 1013

226 Mo. 689

MOORE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

March 30, 1910.

1. APPEAL AND ERROR (§ 272) — EXCEPTIONS — TIME.

If an order made at the December term, continuing the case to February 5th, and directing the jurors impaneled to attend on that day, was without the consent of the parties, objections and exceptions thereto should have been taken by bill of exceptions at the December term in order to have it reviewed.

2. APPEAL AND ERROR (§ 686) — RECORD — QUESTIONS PRESENTED FOR REVIEW — JURY PANEL.

Where there was no showing in the record on appeal that appellant asked for a special jury at the February term after the court had continued the case from the December term, except a statement in the motion to quash the December panel that appellant prayed for a special jury on February 21st, any error in continuing the case and ordering it tried in February on the same panel cannot be reviewed; that the record showed that the December panel was ordered by consent of the parties to return on a day in the February term being immaterial in view of the failure of the record to show the facts stated.

3. DAMAGES (§ 143) — PLEADING — ALLEGATIONS — PROOF — SPECIAL DAMAGES.

Under general allegations of damage in a personal injury action, general damages may be shown as well as such results as would naturally and usually follow from the specific injuries alleged, but all other elements of damage must be specifically pleaded.

4. DAMAGES (§ 158) — PLEADING — PROOF.

Under allegations of the petition in a personal injury action that plaintiff's back, legs, kidneys, and nervous system were seriously injured, evidence of injury to the spinal cord was admissible.

5. DAMAGES (§ 185) — EVIDENCE — SUFFICIENCY.

In order to recover damages for loss of sexual desire resulting from personal injuries, plaintiff must show the exact character of his injuries, and then show his impotency following such injuries, and show by witnesses competent to testify on the subject that it was the natural result of the injuries.

6. DAMAGES (§ 185) — EVIDENCE — SUFFICIENCY.

In an action against a street railroad company for damages for personal injuries in which plaintiff claimed damages for loss of sexual desire resulting from the injuries, evidence held not to show that impotency resulted from his injuries, or that it was the natural result thereof.

7. APPEAL AND ERROR (§ 1140) — DISPOSITION — AFFIRMANCE NOTWITHSTANDING ERRORS — REMISSION OF PART OF VERDICT.

In an action for personal injuries, the only error at trial was in not striking evidence of plaintiff as to his loss of sexual desire resulting from the injuries, but the instructions did not mention that as a fact for consideration in awarding damages. Plaintiff was 53 years old at the date of trial, a day laborer earning from $2 to $2.50 a day, and the injuries were in the lumbar regions of the back, and affected his kidneys, urinary organs, and the lower part of his body, and physicians testified that they were progressive and permanent. The verdict was for $10,000, and plaintiff was at all events entitled to recover some damages. Held that, since the error went only to the amount of damages, the Supreme Court would not reverse and remand therefor, but would affirm if plaintiff remitted the excess over $5,000.

Graves, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by George M. Moore against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of reduction of recovery; if not, reversed and remanded.

This cause is now pending in this court upon appeal on the part of the defendant from a judgment in favor of the plaintiff and against the defendant for personal injuries in the circuit court of the city of St. Louis. This action is one for damages on account of personal injuries claimed to have been received by respondent on the 17th day of May, 1902, in a collision of two street cars being operated by appellant in the city of St. Louis. The petition of the plaintiff alleges in due form the details of the manner in which the accident occurred, which is followed by appropriate allegations alleging the specific acts of negligence which were the proximate cause of the injury to the plaintiff. It is apparent from the disclosures of the record that the main controversy in this cause is as to the sufficiency of the allegations in the petition; that is, whether or not the nature and character of the injuries alleged which were received by plaintiff are broad enough to warrant the introduction of proof as to the loss of sexual desire on the part of the plaintiff. Hence it is essential that we reproduce as applicable to that proposition the allegations of the petition wherein the nature and character of the injuries received are set forth. Following the allegations of negligence, the petition continues: "Whereby plaintiff was thrown down, causing serious injuries to his back, legs, kidneys, and nervous system, and causing many bruises and contusions upon his body and head, from which injuries plaintiff has suffered great bodily pain and mental anguish, and still suffers such bodily pain and mental anguish, and will continue to suffer such bodily pain and mental anguish for the rest of his life." The answer of the defendant in this cause was simply a general denial. The propositions urged by learned counsel before this court do not require an examination of all the testimony developed upon the trial. Hence it can serve no good purpose at this time to make a detailed statement of such testimony, but such of the evidence as may be essential to make reference to in the proper solution of the questions presented to us will be given attention during the course of the opinion. At the close of the evidence the court instructed the jury, and the cause was submitted to them. The jury returned a verdict assessing respondent's damages at $10,000. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. Judgment in accordance with the verdict having been entered of record, the defendant in due time and proper form prosecuted its appeal to this court, and the record is now before us for consideration.

Boyle & Priest and G. B. Arnold, for appellant. S. N. & S. C. Taylor and Bert F. Fenn, for respondent.

FOX, J. (after stating the facts as above).

Upon the record before us learned counsel for appellant assign and urge three grounds as a basis for the reversal of this judgment. They may be briefly stated as follows: First. The court erred in overruling appellant's motion filed before the commencement of the trial to quash the array of jurors. Second. The court erred in permitting respondent upon the trial to testify to the loss of sexual passion, and in refusing to strike such testimony from the record on motion of appellant. Third. The verdict of the jury is excessive. We will give the complaints of the appellant, in the order named, such attention as in our opinion the importance of the questions presented demand and merit.

1. This case was pending for trial at the December term, 1902, of the circuit court of the city of St. Louis. A jury of 18 was qualified, and then the record discloses that the cause was continued to February 5, 1903, being a day during the February term. The bill of exceptions shows that the continuance was at the request of appellant's counsel on account of sickness, and that, by consent of all parties, the panel of 18 jurors was directed by the court to appear in court on February 5th, the day to which this cause was continued. The record proper is silent as to any action of the court or of counsel relative to the jury. No exceptions to the action of the court were preserved by either party at the December term, 1902. On the 5th day of February, 1903, the day on which the taking of testimony was begun, appellant filed a motion to quash the panel of 18 jurors, for the reasons, as alleged in the motion, that after the trial of said cause had commenced at the December term, and the 18 jurors had been examined and impaneled, the court ordered that the cause be continued to February 5, 1903, and ordered and directed said jurors to attend on that day, which said order, it is averred, was illegal, void, and of no force and effect, for the reason that the terms of said jurors expired by operation of law upon the adjournment of the December term. The prayer embraced in the motion was as follows: "Wherefore defendant says that it is entitled to a venire for a special jury as by the statute of the state provided, and as prayed for on the 21st day of February, 1903, and during the first day of said February term." It is earnestly insisted on the part of the appellant that the statement in the bill of exceptions that both parties to the cause consented for the panel of 18 jurors, after they had been examined, qualified, and impaneled, to return on February 5th, has no place in the record, for the reason that there was no record of such fact made either on the record proper or by a term bill of exceptions. If this is true and such order was made without the consent of parties, then it is sufficient to say that it was manifestly incumbent upon the party desiring to preserve exceptions to the action of the court to have done so at the time, and to have taken such steps as would result in preserving such exceptions and making them a part of the record. In our opinion it follows from the disclosures of the record that appellant's motion to quash the panel came too late. It should have interposed its objections and preserved its exception to the action of the court at the December term by filing a term bill of exceptions. The motion of appellant is based on what is termed a void and illegal order of the court made at the December term. The record is silent as to whether or not any evidence was offered at the February term by appella...