Nelson v. Metropolitan Street Railway Company
| Citation | 88 S.W. 781,113 Mo.App. 659 |
| Parties | JOHN NELSON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Decision Date | 26 June 1905 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. J. McD. Trimble, Special Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas and Charles A. Loomis for appellant.
(1) The court erred in its refusal to sustain the defendant's demurrer and to give defendant's peremptory instruction. The evidence wholly failed to sustain the allegations of the petition. Spiro v. Transit Co., 102 Mo.App. 261; Hesselbach v. St. Louis, 179 Mo. 524; Purl v Railway Co., 72 Mo. 172; Bartley v. Railway, 143 Mo. 139, 140; Raming v. Railway, 157 Mo. 506. (2) Instruction numbered one is unsupported by the evidence. Wyatt v. Railway, 62 Mo. 408; Heide v. Transit Co., 104 Mo.App. 328. It enlarged the issues. Fink v. Phelps, 30 Mo.App. 435; Waddingham v Hulett, 92 Mo. 528; George v. Railway, 40 Mo.App. 447; Crews v. Lackland, 67 Mo. 621-622; Barr v. Kansas City, 105 Mo. 559. (3) Instruction numbered 2 given for the plaintiff permits the jury to take into consideration elements of damage not alleged in the petition and not proven by the evidence; and elements of damages not recoverable under the law.
Meservey, Pierce & German for respondent.
(1) Respondent's instruction numbered 1 states the law and is abundantly supported by the evidence. Thompson on Carriers, sec. 443; Poulin v. Railway, 61 N.Y. 621; Nichols v. Railway, 38 N.Y. 131; Railway v. Mumford, 3 Am. & Eng. Ry. Cas. 312-315; Railway v. Calderwood, 7 So. 360; Conway v. Railway, 16 So. 362; 46 La. Ann. 1430; Nellis on Street Railroad Accident Law (1904), 91. (2) Instruction numbered two on the measure of damages is not erroneous. Abbitt v. Transit Co., 104 Mo.App. 534.
Clare Nelson, wife of plaintiff, sustained personal injuries alleged to have been caused by the negligence of defendant. She brought suit to recover her resulting damages and obtained judgment in the sum of one thousand dollars, which we affirmed at this term--Clare Nelson v. Metropolitan Street Railway Company, 113 Mo.App. 702, 88 S.W. 1119. In this suit the husband seeks to recover the damages sustained by him in consequence of his wife's injuries. The jury found for him in the sum of one thousand dollars, and defendant appealed. All the questions presented upon this appeal are answered in the opinion filed in the wife's case, save those relating to the measure of damages.
The petition alleges that "plaintiff has been compelled to pay out the sum of one hundred dollars for medicine, two hundred dollars for a physician and surgical attention, one hundred dollars for nurse hire and three hundred dollars for servants to perform the usual work heretofore performed by his said wife; and that he will be compelled to pay out large sums of money on said account hereafter, and that the injuries received by his wife are permanent. . . . that her services have been entirely lost to this plaintiff and will be lost to him for a long time hereafter, during which time plaintiff has been and will be hereafter deprived of the comfort, society and assistance of his said wife."
At plaintiff's request the court gave the following instruction:
"The jury are instructed that if you find for the plaintiff you will assess his damages at such sum, if any, as you may find and believe from the evidence plaintiff has expended, or has become liable for, for medicine for his wife, made necessary on account of the injury to her on March 21, 1903, as detailed in evidence, not exceeding the sum of $ 100; also for such sum, if any, as you may find and believe from the evidence plaintiff has expended or has become liable for for the services of a physician for his wife made necessary by reason of said injury, not exceeding the sum of $ 200; also for such sum, if any, as you may find and believe from the evidence plaintiff has expended or become liable for for nurse hire for his wife made necessary by reason of said injury, not exceeding the sum of $ 100; also for such sum, if any, as you may find and believe from the evidence plaintiff has expended or become liable for on account of the employment of servants to perform the domestic services for plaintiff's household since said injury, if you find and believe from the evidence that such services were performed prior to said injury by plaintiff's said wife, and that her said injuries prevented her from performing them afterwards, not exceeding the sum of $ 300; also such sums, if any, as you may find and believe from the evidence plaintiff will be compelled to expend hereafter as the reasonable result of the injury to his said wife for any of the matters hereinbefore specified; also for such sum, if any, as you may find and believe from the evidence will reasonably compensate plaintiff by reason of his having been deprived of the comfort and society of his said wife, if you find and believe from the evidence that he has been so deprived by reason of said injury, the whole amount of your verdict to be stated in one sum." The directions contained in the italicized words are claimed by defendant to be erroneous under the averments of the petition and the evidence.
It will be observed that liabilities created, but not paid, by plaintiff for medicines bought and medical attention, nurses and servants employed on account of the injuries inflicted are not included among the damages alleged to have been sustained, but compensation for them is directed in the instruction. The fact that reasonable obligations resulting from such injuries have not been paid does not prevent a recovery for them. [Wilbur v. Ry., 110 Mo.App. 689, 85 S.W. 671; Mirrielees v. Ry., 163
Mo. 470; Muth v. Ry., 87 Mo.App. 422; Murray v. Railroad, 101 Mo. 236; Morris v. Railroad, 144 Mo. 500.] But being in the nature of special damages, the defendant must be advised by the petition of the specific claims he is being called upon to meet. Under allegations of expenses paid in the treatment and care of the injured in negligence cases, evidence of liabilities incurred but not paid is not admissible. Without a specific allegation such damages are not recoverable. [Muth v. Railroad, supra.]
We find upon an inspection of the record no evidence upon which to base the allowance of compensation for damages of this character. Plaintiff did not claim that he owed anything for medicines and nurse hire. His only unpaid bills were for medical attention. He said that he paid one doctor $ 100 on account of services and then testified: ...
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