Moses v. Klusmeyer

• Decision Date: 06 June 1916
• Citation: 186 S.W. 958,194 Mo.App. 634
• Parties: GERSHOM R. MOSES, Respondent, v. FREDERICK W. KLUSMEYER, Appellant
• Court: Missouri Court of Appeals

186 S.W. 958

194 Mo.App. 634

GERSHOM R. MOSES, Respondent, v. FREDERICK W. KLUSMEYER, Appellant

Court of Appeals of Missouri, St. Louis

June 6, 1916

Argued and Submitted May 2, 1916.

Appeal from St. Louis City Circuit Court--Hon. Wilson A. Taylor Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Taylor R. Young and Henry S. Caulfield for appellant.

(1) Plaintiff's instruction No. 2, on the measure of damages is erroneous because it permits a recovery for past "lost time," without any suitable allegation in the petition, and without any evidence of loss of time or of the value thereof. Slaughter v. Railroad, 116 Mo. 269; Mellor v. Railroad, 105 Mo. 455; Coontz v Railroad, 115 Mo. 569; Bartley v. Trorlicht, 49 Mo.App. 214; Impkamp v. Transit Co., 108 Mo.App. 655; Paquin v. Railroad, 90 Mo.App. 118. (2) Plaintiff was guilty of contributory negligence as matter of law in not observing defendant's automobile turning into Euclid avenue, the view being entirely unobstructed, and in failing, after he saw the danger, to stop his motorcycle in time to avoid the collision, and particularly in deliberately taking a chance by attempting to circle around in front of the defendant's moving automobile. Belton v. Baxter et al., 54 N.Y. 245.

Alexander Young and Charles E. Morrow for rerespondent.

(1) Even if the allegations of the petition are not broad enough to cover "loss of time," the evidence, admitted without objection, showed plaintiff was employed at the time he was injured, and making from $ 90 to $ 115 a month, and it was proper to submit this issue to the jury. By not objecting, the defendant waived it. Mellor v. Railroad, 105 Mo. 455; Harrison v. Coleman, 171 Mo.App. 633; Chamlee v. Planters Hotel Co., 155 Mo.App. 144; Litton v. Railroad, 111 Mo.App. 140. (2) The plaintiff's testimony, that he was making from $ 90 to $ 115 per month, was not too indefinite to afford a basis for recovery. If it should have been limited to $ 90 per month by the court, it was the duty of the defendant to ask an instruction so limiting it. State ex rel. v. Reynolds, 257 Mo. 38; Nelson v. United Railways Co., 176 Mo.App. 423; King v. St. Louis, 250 Mo. 501; Norris v. Railroad, 239 Mo. 695, 717. (3) The plaintiff under the evidence was certainly entitled to at least nominal damages for loss of time, and the defendant not having asked an instruction limiting his recovery, waived the defect, if any. State ex rel. v. Reynolds, 257 Mo. 38; Nelson v. United Railways Co., 176 Mo.App. 423; King v. St. Louis, 250 Mo. 501; Norris v. Railroad, 239 Mo. 695, 717. (4) The plaintiff, on cross-examination, does not contradict his statements made in his positive testimony in chief that he was employed at the time he was injured. His answers to questions are no answers at all, and when asked if he meant that he was not employed at the time he was injured, he answered, "No, sir." But at any rate his answers show that he did not understand the questions, and that there was a mistake about it. These ambiguous statements made on cross-examination are not sufficient to overcome his positive testimony in chief, as a matter of law, and the plaintiff is not absolutely bound thereby. If he made contradictory statements about being employed, and his lost time, it was a question for the jury. Lehner v. Railroad, 110 Mo.App. 215; Huff v. Railroad, 213 Mo. 495; Steel v. Railroad, 265 Mo. 97; Downs v. Racine-Sattley Company, 175 Mo. App., 387.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--Action by plaintiff, respondent here, against the defendant, appellant, for damages to his person, resulting from a collision between a motorcycle, on which plaintiff was riding at the time, and an automobile, driven at the time by defendant, the accident occurring on January 1, 1913, at the intersection of Washington boulevard with Euclid avenue in the city of St. Louis.

The petition, after setting out the accident and the injuries sustained by plaintiff, contains this averment as to the measure of damages:

"Plaintiff further says that by reason of said injuries he suffered great pain and anguish both of body and mind; that he had to be taken to a hospital, where he was confined for about two weeks and then he was removed to his home and confined to his bed for about two months. During all of that time he was under the care and treatment of surgeons and was compelled, by reason of his injuries to be attended by a nurse. Plaintiff further says that his left leg by reason of the injuries he received has been made stiff at the knee and has been shortened about one inch and that his said injuries are permanent and that he will never entirely recover from the effects thereof, and that he is not yet able to stand upon his feet or walk without crutches."

The trial was before the court and a jury, resulting in a verdict for plaintiff. From the judgment which followed, having excepted to the action of the trial court in overruling his motion for a new trial, defendant appealed.

During the course of plaintiff's examination in chief as a witness on his own behalf, he was asked: "What was your business at the time you were injured?" He answered that he was an employee of the Wabash Railroad Company; that he worked on the road at the time and was earning from ninety to one hundred and ten and fifteen dollars a month. Asked how long it was after the accident before he was able to attend to his work, he answered that he was not able to return yet and that he was first able to do anything just about a month prior to the trial, the trial coming off in November, 1913.

On cross-examination of plaintiff, however, this occurred, the questions being by counsel for defendant and the answers by plaintiff:

"Q. What business were you in at the time you were hurt? A. I wasn't doing anything at the present time.

Q. You mean at that time? A. No, sir.

Q. How long had it been since you worked for the Wabash? A. I just have to figure that out.

Q. About how long? A. A year and a half.

Q. What have you been doing in the meantime? A. I just ran around the country for pleasure and health and riding on that motorcycle and on the train."

Plaintiff further testified on cross-examination that he had been riding in motorcycle races at the Motordrome on Grand avenue and Meramec streets in the city of St. Louis, and that he had ridden in three races there; that he did this on August 31, 1912. Plaintiff was then asked: "And then from and after that time you were riding around on trains and motorcycles for pleasure? A. Yes, sir. Q. You weren't doing anything else? A. No, sir."

This is all the evidence in the case as to plaintiff being engaged in any occupation, or earning anything.

At the instance of plaintiff, the court, instructing as to the measure of damages, told the jury that the damages which they might award plaintiff, if they found for him, should be compensatory only, "and in estimating such damages, you will take into consideration and allow him for expenses incurred for doctor bills, hospital services, if any, in treating his injuries not to exceed the sum of $ 500; also compensation for lost time, if any, during his illness occasioned by his injury, and while the evidence may not prove any specific sum in dollars and cents that plaintiff may have been damaged by reason of physical pain and mental anguish, yet you may allow him what you believe to be just and fair to compensate him for such sufferings, if any. You will also take into consideration in estimating his damages, his diminished capacity for earning money, if you so believe from the evidence, and on account thereof make him such allowance as you may believe to be fair and just for any loss that you may believe from the evidence he has sustained in the past by reason thereof, and for any loss you may believe from the evidence he may sustain in his future earnings by reason of such diminished earning capacity as may be occasioned by his injury."

The first error assigned by learned counsel for appellant is to the presence in the instruction of the words we have italicized, it being claimed that this instruction permits a recovery for past time lost, which, it is said, is the equivalent of lost earnings, citing Slaughter v. Metropolitan St. Ry. Co., 116 Mo. 269, l. c. 275, 23 S.W. 760, and Scholl v. Grayson, 147 Mo.App. 652, l. c. 664, 127 S.W. 415, when there is no allegation in the petition of loss of time or loss of earnings. It is argued that it is nowhere stated in the petition that plaintiff was employed or had any occupation, nor is it alleged that he suffered pecuniary damage on account of loss of time or earnings, and it is claimed that the loss of time, or of earnings, or of business, is a kind of injury which is not regarded as a necessary consequence of a personal injury and must be pleaded to entitle the plaintiff to give evidence of such loss or to have an instruction therefor, it not being embraced, as is claimed, within the plaintiff's general allegations of damage. Mellor v. Missouri Pacific Ry. Co., 105 Mo. 455, 16 S.W. 849, and Slaughter v. Metropolitan St. Ry. Co., supra, are cited in support of this.

Admitting that it is true, as held in Mellor v. Missouri Pacific Ry Co., supra, that lack of averment in a petition may be waived by permitting evidence of loss of time to go in without objection, it is argued that in the case at bar there is...