Sang v. City of St. Louis

• Decision Date: 02 December 1914
• Parties: GEORGE SANG v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

171 S.W. 347

262 Mo. 454

GEORGE SANG v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

December 2, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Chas. Claflin Allen, Judge.

Affirmed.

William E. Baird and Truman P. Young for appellant.

(1) The instruction allowing for the expense of future medical services was erroneous, for, (a) There was no evidence to support it. Duke v. Railroad, 99 Mo. 347; Slaughter v. Railroad, 116 Mo. 269; Gibler v Terminal Assn., 203 Mo. 208. (b) Damages will not be awarded to compensate for losses not yet experienced on mere conjectural possibilities. Sutherland, "Damages," p. 3644; Joyce, "Damages," sec. 260; Voorhies "The Measure of Damages in Personal Injuries," pp 70, 73; Thompson, "Negligence," secs. 7205, 7333; Strohm v. Railroad, 96 N.Y. 305; Ross v. Kansas City, 48 Mo.App. 440; Wilbur v. Railroad, 110 Mo.App. 689. (c) Damages covering expenses for future medical services will not be awarded in the absence of evidence indicating the reasonable likelihood that such expense will be incurred. Minister v. Railroad, 53 Mo.App. 276; Page v. Canal Co., 34 A.D. (N.Y.) 618; McKenna v. Railroad, 41 A.D. (N.Y.) 255. (2) The motion for a new trial on the ground of newly discovered evidence should have been sustained.

Joseph A. Wright and Conrad Paeben for respondent.

(1) The evidence fully justifies the instruction on damages as given. Sotebier v. Transit Co., 203 Mo. 702; Feeney v. Railroad, 116 N.Y. 375, 5 L.R.A. 544; Wolf v. Railroad, 67 A.D. 613, 74 N.Y.S. 336; Turner v. Railroad, 158 Mass. 267; Moran v. Street Ry. Co., 74 N.H. 500, 19 L.R.A. (N. S.) 920; Parker v. Transit Co., 108 Mo.App. 465; Pentoney v. Transit Co., 108 Mo.App. 681; Lackland v. Mining Co., 110 Mo.App. 634; Mabrey v. Gravel Road Co., 92 Mo.App. 596. (2) Defendant asked no qualifying instruction on measure of damages, and therefore cannot now complain. King v. St. Louis, 250 Mo. 501; State ex rel. v. Reynolds, 257 Mo. 19; Browning v. Railroad, 124 Mo. 55; Nelson v. Railroad, 176 Mo.App. 423; Jennings v. Appleman, 159 Mo.App. 12; Mabrey v. Gravel Road Co., 92 Mo.App. 596. (3) The trial court properly refused appellant a new trial on the ground of newly discovered evidence, because of a failure of diligence, and the evidence, at most, would be merely cumulative. At most, the ruling is within the exercise of a sound discretion. State v. Nickems, 122 Mo. 607; State v. Welsor, 117 Mo. 570; Porter v. Stock Yards Co., 213 Mo. 372; Dent v. Traction Co., 145 Mo.App. 70.

LAMM, J. Bond, J., concurs in result.

OPINION

LAMM, J.

Suing for personal injuries and laying his damages at $ 15,000, plaintiff had a verdict for $ 4000. In due time defendant unsuccessfully moved for a new trial and appealed.

In outline the case is this: Plaintiff, twenty-seven years old, married and earning $ 15 per week, at half-past six p. m., October 3, 1910, during a great rain and while it was "pitch dark," was driving a one-horse beer wagon with a canopy top, on a paved street, Palm, in St. Louis, for the purpose of delivering a barrel and a keg of beer. Palm intersects Glasgow, then either a dirt road or partly clay and partly macadam. This intersection was not paved. In the street there was a hole, say, seven or eight feet long, two or three feet wide, and a foot or a foot and a half deep, at the time flooded with water, as were the two streets. Never having driven there before and knowing nothing of this hole, plaintiff at a sharp trot drove into it, whereby he was thrown over the footboard against the horse, and into the hole, both wheels of the wagon on his side running over his leg and the lower part of his abdomen. The existence and character of this hole in the street and in the line of travel for a length of time sufficient to give notice to the city are not questioned. In other words, the negligence of the city, disputed below, is no longer disputed on appeal. That the issue of negligence was properly submitted on the pleadings is not controverted. So, defendant's defense being contributory negligence, that issue was well submitted. So, the grave character of plaintiff's injuries is not disputed -- the testimony showing a complicated, compound, comminuted fracture of the left leg between the knee and the ankle. It also showed a resulting hernia, a lump hard by the groin still existing at the trial. In addition thereto a singular thing happened on plaintiff's theory, to-wit, one of his testicles was driven by the accident up into his abdomen and remained there at the point of the hernia. The fact of the dislocated testicle is conceded. That it resulted from the accident is strenuously controverted by defendant. We shall revert further to the evidence in the body of the opinion.

Two questions, and only two, are to be ruled, to-wit:

(a) In plaintiff's instruction on the measure of damages are three propositions. The first allowed recovery for plaintiff's past pain of body and mind suffered and caused by his injuries and for such pain as the jury may find and believe he is reasonably certain to suffer in the future as a direct result. The second allowed recovery of expense for medical services and medicines necessarily incurred by plaintiff and for which he became obligated by reason of his injuries and directly resulting therefrom. (The testimony tended to show the rise of $ 400 on this item.) Then follows this clause: "And for any expense for medical services which the jury find and believe from the evidence plaintiff is reasonably certain to necessarily incur in the future by reason of his injuries and directly caused thereby." The third allowed recovery for loss of earnings of his labor suffered by reason of his injuries or which he was reasonably certain to suffer therefrom in the future.

Appellant assigns error in giving that part of the instruction quoted above from the second proposition and such insistence is its first assignment.

(b) A timely supplemental motion for a new trial counts on the theory of newly discovered evidence. The second assignment of error is predicated of the overruling of such supplemental motion, the facts in judgment appearing in due course.

I. Of assignment a.

There is no complaint made of the form in which the question of future medical services is put to the jury. The complaint is narrowed to the contention there was no evidence on which to predicate such recovery and that is the sole issue. Attend to that. The medical testimony indicates the broken leg "seems to be fairly well." When the fracture was reduced at the outset the bones did not knit blandly. It seems the bones had been crushed somewhat and this crushing made the fracture a "comminuted" one. It seems both bones of the leg were broken, hence the fracture was a "compound" one. It seems that some of the flesh and ligaments got between the parts of this fracture. This fact was not discovered at the start and caused suppuration and failure to knit, thus giving rise to a "complicated" fracture.

Subsequently a serious operation was performed in the hospital and the bones wired together. It was several months healing. There is still pain in the wounded limb, and tenderness in the parts. The injury was of a sort that permanently shortened, and gave a limp to, the leg, and up to the time of trial (over a year) had prevented plaintiff's employment as a common laborer. Being without education, that was his only vocation.

There does not seem to have been any operation for the hernia. The doctors prescribed lying in a favorable position and rest. By such means the hernia was reduced, but the medical testimony agrees with common observation that the trouble is likely to recur. Plaintiff's doctor in testifying, asked for an opinion whether he would have trouble in the future from this rupture, replied: "He may have at any time." Another place the record shows these questions to the physician and his answers: "What about this rupture, will that continue in your opinion? A. I think it will. That is, I think if he strains himself it is likely to come out again. . . . Q. Does that rupture interfere with his lifting in any way in your opinion? A. Well, I think it would."

Under the medical testimony nothing short of an operation will put the dislocated testicle in the place nature designed for it; but there is no testimony tending to show that an operation is either necessary or advisable to protect or restore the integrity of its normal function or that its present condition is dangerous to health, inconvenient or makes or tends to make it functus officio.

In this condition of the record we rule as follows on the first assignment:

(1) The testimony leaves the question of the reasonable probability or necessity of medical services to replace the dislocated testicle a matter of merest conjecture. There is nothing to show it would be safe or better to replace it by surgical means, hence that part of the instruction on the measure of damages allowing a recovery for future medical attention could not well stand on this part of the record.

In leaving this branch of the case we by no means rule that plaintiff is not entitled to recover substantial damages for the pain and suffering incident to the forceful dislocation of the part. It is ingeniously argued by appellant's learned counsel that the accident did not (and could not) cause the dislocation. They rest the argument on the fact that the doctors testified they never read of or saw an incident of the kind. That the size of the usual canal protected, as it is, by muscular rings, excludes the idea that the testicle could be driven by force from nature's sack up and into the abdomen along this canal; but this testimony was merely advisory. We stress the fact there was...