Partello v. Missouri Pac. Ry. Co.

• Decision Date: 27 January 1908
• Parties: PARTELLO v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

107 S.W. 473

141 Mo. App. 162

PARTELLO v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals, Missouri.

January 27, 1908.

Rehearing Denied February 17, 1908.

1. JUDGMENT — REMITTITUR — EFFECT — STATISFACTION.

Since the effect of filing a remittitur is to nullify the judgment and to require the court to enter a new judgment for the amount of the verdict, less the sum remitted, such new judgment could be satisfied by a payment of the amount thereof, regardless of interest which had accrued on the former judgment.

2. COURTS — COURTS OF APPELLATE JURISDICTION — AMOUNT IN CONTROVERSY.

Laws 1901, p. 107 [Ann. St. 1906, § 1649a], provides that the St. Louis and Kansas City Courts of Appeals shall have jurisdiction in all cases where the amount in dispute, exclusive of costs, shall not exceed $4,500. Held that, where after judgment had been rendered on a verdict for plaintiff for $5,500, and $132 interest had accrued thereon, plaintiff remitted the $1,000, and agreed that judgment should be entered for $4,500, which was done, an appeal from such judgment was not beyond the jurisdiction of the Court of Appeals because of the interest accrued on the former judgment.

3. DAMAGES — PERSONAL INJURIES — EVIDENCE — CONDITION OF HEALTH.

Where, in an action for injuries, a medical expert testified for defendant that the womb of plaintiff's wife was greatly enlarged from some cause antedating her injury, and it was also shown that some years prior to her injury she suffered a severe laceration of the perineum, which failed to heal properly, and for which she underwent an operation, to show that her condition

at the time of the trial was not wholly due to the injuries for which the suit was brought, plaintiff was entitled to show his wife's physical condition from girlhood to the time of her injury; and hence evidence that more than five years prior thereto she had been a vigorous woman, able to ride with members of an army garrison in the chase, and to follow her husband in military campaigns, was not objectionable for remoteness.

4. SAME — SPECIFICATION — PLEADING AND PROOF.

Where, in an action for injuries, plaintiff specifies the injuries for which he seeks to recover, he will be held both in his proof and recovery to his specification.

5. SAME — INSTRUCTIONS — SCOPE OF ISSUES.

Where a petition specifies the injuries for which a recovery is sought, an omission of the instructions on the question of damages to confine the recovery to such specifications is not reversible error, unless other injuries than those specified are disclosed by the evidence.

6. PERSONAL INJURIES — PLEADING AND PROOF.

Where, in an action for injuries to plaintiff's wife, the petition alleged that in consequence of the reception of a severe blow in the side and lower part of the abdomen she sustained a severe contusion, which resulted in the displacement of and permanent injury to her womb, and permanent impairment of her menstrual functions, such allegation was sufficient to justify the admission of evidence that she suffered impairment of the ovaries and subsequent formation of an abscess therein as the natural result thereof.

7. SAME — FUTURE LOSS OF SERVICE AND SOCIETY.

A petition for injuries to plaintiff's wife alleged that the injuries were permanent; that she would continue to suffer great physical pain and mental anguish on account thereof; that she had become a weak, infirm, and incurable invalid, and that plaintiff had been deprived of her society and services. Held, that such allegation was sufficient to justify a recovery for future loss of services and society.

8. SAME — EXCESSIVENESS.

Plaintiff's wife, who had been previously a strong, vigorous matron, in perfect health, was so injured in a railroad accident that she was completely broken in health and a helpless and incurable invalid. A verdict was rendered in plaintiff's favor for $5,500, from which $1,000 was remitted, and sustained by the trial judge. Held, that the verdict as rendered did not indicate that the jury was guided by improper motives, and that the amount for which judgment was rendered was not excessive.

Appeal from Circuit Court, Jackson County; Edward P. Gates, Judge.

Action by J. M. T. Partello against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Motion to certify case to Supreme Court overruled.

Elijah Robinson, for appellant. Reed, Yates & Mastin, for respondent.

JOHNSON, J.

Appellant presents a motion to certify this cause to the Supreme Court on the ground that, as the amount in dispute, exclusive of costs, exceeds the sum of $4,500, we have no jurisdiction. On the 14th day of April, 1906, the jury returned a verdict in favor of plaintiff in the sum of $5,500. April 17th defendant filed its motions for a new trial and in arrest of judgment, which were continued until the June term of the circuit court, when they were overruled on the 9th day of June. June 12th defendant filed a motion to set aside the order of the court overruling the motions. July 5th plaintiff filed a remittitur as follows: "Comes now plaintiff to said cause and remits one thousand dollars ($1,000) of the verdict rendered, and consents and agrees that judgment shall be rendered on the verdict for forty-five hundred dollars ($4,500)." July 14th the court made the following order: "Defendant's motion to set aside order overruling motion for new trial is by the court sustained, and, it appearing to the court a remittitur of $1,000 from the verdict having been made, said motion for a new trial is overruled, and excepted to by defendant." September 8th defendant filed bond and affidavit for appeal, and asked that the cause be sent to the Supreme Court, but, instead, the appeal was allowed to this court. It is the contention of defendant that, since interest in the sum of $132 had accrued on the judgment at the time the remittitur was entered, the amount in dispute then was $4,632. The statute fixing the jurisdiction of the Courts of Appeals is as follows: "The St. Louis Court of Appeals and the Kansas City Court of Appeals shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of forty-five hundred dollars." Laws 1901, p. 107 [Ann. St. 1906, § 1649a]. Without taking interest on the judgment into account, the sum remitted reduced the amount in dispute to $4,500 — a sum within our jurisdiction—and we think defendant is in error in saying that, if it "had concluded to pay the judgment, less the remittitur, on the day the remittitur was entered and the motion for new trial overruled, it would have been compelled to pay $4,632." It sufficiently answers this argument to refer to the rule, well settled in this state, that the effect of the filing of a remittitur is to nullify the judgment and to require the court to enter a new judgment for the amount of the verdict, less the sum remitted. Schilling v. Spick, 26 Mo. 489; Haynes v. Town of Trenton, 108 Mo. 123, 18 S. W. 1003; Dawson v. Waldheim, 81 Mo. App. 636; Dawson v. Waldheim, 89 Mo. App. 245. The judgment from which the order of appeal was allowed was that rendered on the 14th of July, the day the remittitur was entered and the motions for new trial and in arrest overruled. Had defendant elected to pay the judgment on that day, it could not have been compelled to pay more than $4,500 in satisfaction thereof, and, this being the amount in dispute, it follows that the cause falls within the jurisdiction of this court. The motion to certify to the Supreme Court is overruled.

This is an action brought by a husband to recover damages resulting to him from personal injuries sustained by his wife in consequence of the negligence of defendant. The injury of which complaint is made occurred in the morning of October 9, 1904. Plaintiff who, at the time, was a major in the United States army and in command at Ft. Reno, was returning to that post with his family from a visit to the World's Fair at St. Louis. When they reached Kansas City the party decided to make a side trip to Ft. Leavenworth, and became passengers on one of defendant's trains bound for that place. Shortly after the train left the Union Station, and while it was running through defendant's yards at Kansas City at a rate of speed of 10 to 15 miles per hour, the engine was deflected from the main track by a misplaced switch and caused to run onto a switch track where it collided with another engine. The impact was so severe that Mrs. Partello was thrown violently forward from her seat in the chair car and injured. The averments of the petition necessary to be considered in disposing of the questions presented by defendant are as follows: "The said wife of plaintiff was greatly and permanently injured by being thrown violently from her seat in one of defendant's cars, and being forcibly and violently thrown against some portion of the said car or its furnishings, whereby the nose of Annie V. Partello was bruised and broken just below the forehead and permanently disfigured; also by being struck in the side and lower portion of her abdomen with great force and violence, thereby greatly bruising and mashing her said side and lower portion of her body, and...