Newberry v. City of St. Louis

• Decision Date: 02 November 1937
• Parties: LOTTIE NEWBERRY, RESPONDENT, v. CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, OTTILIA FENDLER, PHILLIPINA FENDLER, DEFENDANTS, CITY OF ST. LOUIS, APPELLANT
• Court: Missouri Court of Appeals

109 S.W.2d 876

234 Mo.App. 104

LOTTIE NEWBERRY, RESPONDENT, v. CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, OTTILIA FENDLER, PHILLIPINA FENDLER, DEFENDANTS, CITY OF ST. LOUIS, APPELLANT

Court of Appeals of Missouri, St. Louis

November 2, 1937

Motion for rehearing overruled November 19, 1937.

Petition for Writ of Certiorari denied February 25, 1938.

Rehearing Denied 234 Mo.App. 104 at 113.

Appeal from Circuit Court of City of St. Louis.--Hon. Frank Landwehr, Judge.

AFFIRMED.

Judgment affirmed.

John P Griffin for respondent.

(1) Pickel v. Pickel, 176 Mo.App. 56, l. c. 60-61, 120 S.W. 661; Ruehling v. Pickwick Greyhound Lines, 337 Mo. 196, l. c. 201, 85 S.W.2d 602; Graf v Dougherty, 139 Mo.App. 673, 159 S.W. 774; Eckel v Gruebel (Mo. App.), 226 S.W. 983, l. c. 985; Price v. Davis, 187 Mo.App. 1, l. c. 11, 173 S.W. 64, l. c. 67; Hickey v. Metropolitan L. Ins. Co. (Mo. App.), 270 S.W. 388, l. c. 389; Blanchord v. Dorman, 236 Mo. 416, l. c. 436, 139 S.W. 395. (a) The question must be preserved by proper exception. City of St. Louis v. Buselaki, 336 Mo. 693, l. c. 702, 80 S.W.2d 853, l. c. 855; Spotts v. Spotts, 331 Mo. 917, l. c. 926-7, 55 S.W.2d 977; Chapman v. Bimel-Ashcroft Mfg. Co. (Mo.), 263 S.W. 993, l. c. 977. (b) The appellant failed to request an instruction limiting the damages and has waived the right to complain. Rigley v. Prior (Mo.), 233 S.W. 828, l. c. 832; Mabe v. Gille Mfg. Co. , 219 Mo.App. 234, l. c. 248, 271 S.W. 1023; Burtch v. Wabash Ry. Co. (Mo.), 236 S.W. 338, l. c. 346; Jablonowski v. Modern Cap Co. (Mo.), 279 S.W. 89, l. c. 96; Carter v. Wabash Ry. Co., 193 Mo.App. 223, l. c. 235, 182 S.W. 1061, l. c. 1064; Kaley v. Huntley, 88 S.W.2d 200, l. c. 206. (c) The motion for a new trial must specifically call the matter to the trial court's attention. Coffey v. Carthage, 200 Mo. 616, l. c. 629, 98 S.W. 562; Leahy v. Merc. Trust Co., 296 Mo. 561, l. c. 585, 247 S.W. 396, l. c. 401; Warren v. Badger Lead Co., 255 Mo. 138, l. c. 144-5, 164 S.W. 206. (2) If appellant had attempted to limit the amount of the respondent's damages, either by objection to the evidence of same on the ground they were already fixed or by an instruction, the respondent then would have had a right to show that the damages assessed at the previous trial were inadequate. Hoelzel v. C. R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126, l. c. 134. (3) The judgment of $ 3500 is a modest one for a broken leg that is bowed in such a way as to throw respondent's weight off center, causing trouble in the ankle and foot, all of which is permanent (not questioned), with a loss of wages, and medical and incidental expenses. Baker v. Metropolitan St. Ry. Co., 142 Mo.App. 354, 126 S.W. 764; Goodwin v. Wells, 220 Mo.App. 1, 285 S.W. 112; Stofer v. K. C. P. Serv. Co., 226 Mo.App. 376, 41 S.W.2d 614. (4) Respondent has a valid judgment against the other defendants which has not been appealed from and is not before this Court to disturb. Therefore, the appellants' only request, namely, to reverse and remand with direction to enter judgment for respondent for $ 1250, would mean this court would have to enter two judgments, which it cannot do. Sutton v. Anderson, 31 S.W.2d 1026, l. c. 1032, 1036.

Edgar H. Wayman, Oliver Senti and Jerome Simon for appellant.

(a) The amount of plaintiff's damage was determined by a verdict against the codefendants in which there was no error. (b) Upon the retrial of the case against the City, the amount of plaintiff's damages having already been decided by a jury, the only question in issue was the City's liability. Hoelzel v. C. R. I. & P. Ry. Co. et al., 337 Mo. 61, 85 S.W.2d 126; Yerger v. Smith, 89 S.W.2d 66.

McCULLEN, J. Becker, J., concurs; Hostetter, P. J., absent.

OPINION

McCULLEN, J.

This is a suit for damages for personal injuries alleged to have been sustained by Lottie Newberry, respondent, hereinafter referred to as plaintiff, as the result of a fall on a sidewalk adjacent to property known as 5422 Grace Avenue in the City of St. Louis due to an alleged accumulation of ice and snow thereon. As originally filed, the suit was against the City of St. Louis, hereinafter referred to as defendant City, and Ottilia Fendler, John Fendler, Frank J. Fendler and Phillipina Fendler. The cause was first tried on November 5, 1931, before the court and a jury and resulted in a verdict and judgment in favor of the defendant City and in favor of plaintiff and against Ottilia and Phillipina Fendler, as owners of the property, in the sum of $ 1250.

Plaintiff's motion for a new trial was sustained by the trial court as to the defendant City on the ground that the court had erred in giving an erroneous instruction on contributory negligence. The Court overruled the motion of the defendants Fendler for a new trial, and of its own motion set aside the $ 1250 verdict and judgment in favor of plaintiff and against said defendants and ordered that the verdict be held in abeyance as settling the question of liability on the part of said defendants "except as to the amount thereof and the amount of damages to be determined on the retrial of the issue and further proceedings against all defendants jointly."

The defendant City appealed to the Supreme Court of Missouri where the order of the trial court granting plaintiff a new trial as to that defendant was affirmed. [See Newberry v. City of St. Louis et al., 335 Mo. 1, 70 S.W.2d 546.] Thereafter, on April 29th, and April 30th, 1935, the cause was again tried in the circuit court before a jury. The second trial resulted in a verdict and judgment in the sum of $ 3500 in favor of plaintiff and against the defendant City and the two Fendlers. From that judgment the defendant City has appealed to this Court.

The only contention of the defendant City is that it cannot be held for more than $ 1250 because the verdict of the jury against the two Fendlers, its co-defendants at the first trial, fixed the amount of plaintiff's damages at that sum, and that the only question in issue at the second trial was its liability. It assigns as error the action of the trial court in giving, at plaintiff's request, Instruction No. 4 on the measure of damages on the sole ground that "the amount of plaintiff's damages had already been fixed by a jury in the former trial." The instruction is as follows:

"The Court instructs the jury, that your verdict will be for the plaintiff and against the defendants, Ottilia Fendler and Phillipina Fendler, and if you find for the plaintiff against the City of St. Louis, under the other instructions of the Court, then you will assess the plaintiff's damages against all the defendants, at such sum as you find and believe from the evidence will reasonably compensate her for the injuries, if any, she received as a direct result of the fall mentioned in the evidence, and you may take into consideration the loss of wages, if any, that she suffered, not to exceed the sum of four ($ 4.00) dollars per day for the period of time shown by the evidence that she lost same, if any, and you may also take into consideration the reasonable value of the medical and surgical treatment incurred or paid for the treatment of her injuries, if any, not to exceed the amount mentioned in the evidence, and you may also take into consideration the nature and extent of the plaintiff's injuries, if any, and the pain of body and mind suffered by the plaintiff, if any, as a direct result of said injuries, and the fracture or break of the bones of the plaintiff's right leg, if so, and the effect, if any, of said break of the leg, suffered as a direct result of the broken bones, if any, and whether the injuries to her leg are permanent, and if so, the nature and extent thereof, and allow the plaintiff such amount as you believe will reasonably compensate her for said loss and injuries, if any."

Plaintiff contends that this point was not properly preserved in defendant City's motion for a new trial. It appears from the record that defendant City saved its exception to the giving of the instruction mentioned, and in its motion for a new trial stated, as ground number 13:

"The Court erred in giving and reading to the jury each and every instruction given by the court and read to the jury on behalf of and at the request of plaintiff."

Under the Supreme Court decisions we must rule this point against plaintiff. [Wampler v. R. R., 269 Mo. 464, 190 S.W. 908, 911, 912, 913; Bobos v. Krey Packing Co., 317 Mo. 108, 114, 296 S.W. 157.]

The defendant City's bill of exceptions, as shown by its abstract of record herein, is in abbreviated form. It sets forth the peremptory instructions in the nature of demurrers to the evidence asked by the defendant City at the close of plaintiff's case and at the close of the whole case which were refused by the court. It contains the instructions given on behalf of plaintiff, those given on behalf of the defendant City, a formal instruction given by the Court of its own motion, the instructions offered by the defendant City and refused by the Court, and the verdict of the jury. It also sets forth the defendant City's motion for a new trial and the overruling thereof. The evidence adduced at the trial is not presented in the bill of exceptions. However, under the heading "The Evidence", defendant City states:

"Thereupon the plaintiff, by her counsel, in order to sustain the issues on her part to be sustained, offered and submitted evidence sufficient to sustain the allegations of her petition as to the defendants' negligence and evidence as to the extent of her injuries. The admissibility or the sufficiency of the evidence not being questioned, it is not set out." (Italics ours.)

There is nothing in the record before us to show that defendant City made...