Moore v. St. Louis Transit Company
| Decision Date | 30 March 1910 |
| Citation | 126 S.W. 1013,226 Mo. 689 |
| Parties | GEORGE M. MOORE v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed conditionally.
G. B Arnold for appellant; Boyle & Priest and G. W. Easley of counsel.
(1) The court erred in overruling appellant's motion to quash the array of jurors filed before the commencement of the trial. Lyons v. Hamilton, 69 Ia. 47; Ashbough v Edgecomb, 13 Ind. 466; People v. Cage, 48 Cal 323; 17 A. R. 457; Norvell v. Duval, 50 Mo. 272. (2) The court erred in permitting respondent at the trial to testify to the loss of his sexual passion, and in refusing to strike such testimony from the record, on motion of appellant. Campbell v. Cook, 86 Tex. 630; Fuller v. Mayor, 92 Mich. 197; Railroad v. Beasley, 9 Tex. Civ. App. 569; Railroad v. Cook, 8 Tex. Civ. App. 376; 1 Joyce on Damages, secs. 13-204. This testimony was clearly inadmissible under the pleadings. There is no specific allegation in the petition that he had suffered such an injury, nor is there any general allegation there rendering such evidence admissible. Such an injury was a special damage, and not being pleaded, evidence is inadmissible to prove it, and no recovery can be had therefor. (3) The verdict of the jury is excessive. Respondent was not totally disabled. He was not even required to use crutches in order to walk, and there are many vocations in which he could earn a livelihood in his present condition, and doubtless is now so doing. Cobb v. Railroad, 149 Mo. 609. That the jury in estimating respondent's damages took into consideration his testimony as to the loss of his sexual powers is conclusively indicated by the amount of this verdict. That testimony must have impressed the jury, as it was admitted over appellant's objection and was again dwelt upon by respondent's counsel.
S. N. & S. C. Taylor and Bert F. Fenn for respondent.
(1) Attorneys of record may stipulate that eighteen special jurors, summoned and examined upon their voir dire and found acceptable to both parties, may be excused by the court and ordered to return nine days thereafter so that twelve of their number may be selected by the respective parties to try the case, notwithstanding such postponement carries the case over to a succeeding term. Such a stipulation, solemnly entered into in open court by the parties through their attorneys of record, where the court approves, and the jury is excused accordingly, and ordered by the court to return nine days thereafter, is not contrary to any law or custom of procedure that obtains in this State; and where the court holds such stipulation binding upon the party or his attorney who seeks without cause to evade it, in violation of such solemn agreement, such holding is no abuse of discretion. Especially is this so when a motion to quash the array of jurors, as in the case at bar, states no reason therefor, except "that said order was illegal, void and of no force and effect, for the reasons that the terms of said jurors expired by operation of law with the expiration of the December term of said court." Special juries are not summoned as are ordinary juries for a term of court. They are summoned for the sole purpose of trying a designated case. State v. Jackson, 167 Mo. 291; State v. Albright, 144 Mo. 638; State v. Clark, 121 Mo. 512; State v. Thornton, 108 Mo. 640; State v. Matthews, 98 Mo. 119; Goldsmith v. Candy Co., 85 Mo.App. 595; Fulton Co. v. Amorous, 89 Ga. 614; Bennett v. Iron Co., 34 P. 61; Flynn v. State, 72 N.W. 373; Hannurn v. State, 90 Tenn. 647; Miller v. Wilson, 24 P. 114; Ellis v. State, 25 Fla. 702; Rosch v. Blackey, 17 S.E. 229; State v. Coffman, 69 Ia. 578; Corbett v. City of Frey, 53 Hun 228; State v. Sackett, 38 N.W. 773; Tubbs v. Embree, 89 Hun 475; Collins v. Young, 23 S.E. 1005; Comm v. Smith, 4 D. R. 136. (2) Disease following an injury of a character adequate to produce it, which cannot be shown to have resulted from another independent cause, must be imputed to the author of the injury. Railroad v. Harris, 122 U.S. 597; Railroad v. Kellogg, 94 U.S. 496; Elevator Co. v. Lippert, 63 F. 942; Ehrgott v. New York, 96 N.Y. 264; Harley v. Brewing Co., 13 A.D. 167; Railroad v. Rosewack, 119 Pa. St. 519; Coever v. Kent, 61 Wis. 74; Jucker v. Railroad, 52 Wis. 150; Deli v. Railroad, 51 Wis. 400; Railroad v. Parks, 96 Ind. 346; 2 Shearman & Redfield on Neg. (5 Ed.), sec. 242. (3) The direct consequence of a wrongful act, either expected or unexpected, which follows as a natural result of such wrongful act, has always been the subject of compensation and need not be specially pleaded. Gidionsen v. Railroad, 129 Mo. 392; O'Leary v. Rowan, 31 Mo. 119; Lesser v. Railroad, 85 Mo.App. 330; Tyson v. Booth, 100 Mass. 258; Sloan v. Edwards, 61 Md. 90; Delio v. Railroad, 51 Wis. 400; Holmes v. Fond du Lac, 42 Wis. 282; Beath v. Railroad, 78 N.W. 537; Montgomery v. Railroad, 103 Mich. 47; Joliet v. Johnson, 52 N.E. 498; Railroad v. Hecht, 115 Ind. 443; Babcock v. Railroad, 36 Minn. 147; Railroad v. Harris, 122 U.S. 597; Wade v. Seroy, 61 U.S. 34; Ehrgott v. Mayor, 96 N.Y. 264; Railroad v. Ward, 135 Ill. 511; Railroad v. Mitchell, 63 Ga. 173; Kleiner v. Railroad, 36 A.D. 191; Jaeger v. Bluefield, 40 W.Va. 484; Tobin v. Fairport, 12 N.Y.S. 224; Curran v. Strange, 98 Wis. 598; Hansee v. Railroad, 21 N.Y.S. 230. (4) In view of plaintiff's injuries, tested by other verdicts upheld in this court, the verdict of the jury was moderate. Markey v. Railroad, 185 Mo. 348; Small v. Kansas City, 185 Mo. 291; Scullin v. Railroad, 184 Mo. 695; Newcomb v. Railroad, 182 Mo. 687; Copelin v. Railroad, 175 Mo. 650; Chitty v. Railroad, 166 Mo. 435; Cambron v. Railroad, 165 Mo. 545; Oglesby v. Railroad, 150 Mo. 138; Fullerton v. Fordyce, 144 Mo. 521; Barr v. Kansas City, 121 Mo. 23; Gratiot v. Railroad, 116 Mo. 450; Foster v. Railroad, 115 Mo. 166. (5) (a) "The Supreme Court, or Court of Appeals, shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, materially affecting the merits of the action." R. S. 1899, sec. 865; Berkson v. Railroad, 144 Mo. 211; Gorham v. Railroad, 113 Mo. 408; Harris v. Powell, 56 Mo.App. 24; Goodwin v. Railroad, 53 Mo.App. 9. (b) Where the judgment is manifestly right, the court will not reverse, even if errors were committed by the trial court. Hall v. Goodnight, 138 Mo. 577; Burns v. Liberty, 131 Mo. 372; Fitzgerald v. Barker, 96 Mo. 661; MacLeod v. Skiles, 81 Mo. 595; State ex rel. v. Edwards, 78 Mo. 473; Cartwright v. Culver, 74 Mo. 179; State ex rel. v. Boeppler, 63 Mo.App. 151. (c) Where upon the whole record it is manifest that the judgment is for the right party, and the right amount, it will not be reversed, though error was committed at the trial. State v. Bancroft, 1 Mo. 163; Crocker v. Mann, 3 Mo. 472; Jackson v. McGruder, 51 Mo. 55; Railroad v. Armstrong, 92 Mo. 265; Williams v. Mitchell, 112 Mo. 300; State ex rel. v. Jones, 131 Mo. 194; Fell v. Mining Co., 23 Mo.App. 216; Bassett v. Glover, 31 Mo.App. 150; Creek v. Waldron, 39 Mo.App. 21; Garesche v. Dean, 40 Mo. 168.
OPINION
In Banc.
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 harm 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 ten thousand dollars. Timely motions for new...
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