Scholl v. Grayson

• Decision Date: 05 April 1910
• Citation: 127 S.W. 415,147 Mo. App. 652
• Parties: SCHOLL v. GRAYSON.
• Court: Missouri Court of Appeals

127 S.W. 415

147 Mo. App. 652

SCHOLL v. GRAYSON.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

Rehearing Denied April 19, 1910.

1. DAMAGES (§ 62)—PERSONAL INJURIES—DUTY TO OBVIATE BAD RESULTS.

The duty of a party injured by the tort of another to use reasonable care to obviate as far as possible the results from the injury, extends no further, in the matter of selecting a physician to treat the injury, than to select one of good repute, and for lack of care and skill shown by such a physician in his treatment the patient is not answerable, nor is the circumstance admissible to mitigate the damages for which the tort-feasor is liable.

2. EVIDENCE (§ 208)—ADMISSIONS—PERSONAL INJURIES—COLLISION WITH AUTOMOBILE— PETITION IN OTHER ACTION.

In an action for personal injuries from being struck by an automobile, a petition filed by the injured party against his physician and offered in evidence as an admission was properly excluded as tending to establish no fact favorable to defendant.

3. PLEADING (§ 430)—EVIDENCE ADMISSIBLE UNDER PLEADINGS — PERSONAL INJURIES — COLLISION WITH AUTOMOBILE — HOSPITAL BILL.

In an action for personal injuries from being struck by an automobile, where the petition alleged that the injured party had been caused expense and compelled to expend money for medical and surgical attention, medicines, and nursing, and evidence of the payment of a hospital bill was received without objection, there was no error in letting the jury include the item for hospital expenses in their award.

4. APPEAL AND ERROR (§ 1052)—HARMLESS ERROR.

Any error in allowing a physician to state the amount of his bill was harmless, where a greater sum had been remitted by plaintiff from the verdict recovered.

5. DAMAGES (§ 144)—"LOSS OF TIME."

An averment of "loss of time," in a petition for negligent injuries, is the same in legal effect as an averment of "loss of earnings."

6. DAMAGES (§ 144)—PERMANENT INJURIES.

An allegation of "permanent injuries" is not equivalent to alleging loss of time or of earnings.

7. DAMAGES (§ 144)—FUTURE LOSS OF EARNINGS—SPECIAL AVERMENT.

"Future loss of earnings" signifies diminution of earning capacity in the future and may be shown without a special averment.

8. APPEAL AND ERROR (§ 1170)—ASSIGNMENT OF ERRORS—RULING.

Under Rev. St. 1899, § 865 (Ann. St. 1906, p. 812), providing that cases will not be reversed in the absence of material error, where a party injured was so disabled that diminution of earnings in the future was certain, so that defendant was not prejudiced by lack of a special averment of future loss of earnings, an assignment of error against the direction to the jury to award damages for future loss of earnings will be overruled.

9. TRIAL (§ 105)—RECEPTION OF EVIDENCE— FAILURE TO OBJECT—EFFECT.

Where evidence of the incurring of bills is offered under a petition which avers payment of them, the evidence is incompetent against an objection; but, if received without objection, it may be referred to the jury.

10. EVIDENCE (§ 539)—COMPETENCY OF EXPERT—SPEED.

A person who had considerable experience observing the speed of automobiles, had attended races, ridden every day, read speedometers, had been employed by a rubber company in its repair department for years, which company left to his judgment all matters based on speed, was competent to testify as to the distance in which an automobile could have been stopped; he being an eyewitness to the accident.

11. MUNICIPAL CORPORATIONS (§ 706)—PERSONAL INJURIES—COLLISION WITH AUTOMOBILE— EVIDENCE.

In an action for personal injuries from being struck by an automobile, where contributory negligence of the injured party was charged, in passing hurriedly from the sidewalk into the street near the automobile and so near it was impossible to stop in time to avoid the accident, and evidence in support of this defense was offered, it was proper to permit plaintiff to prove the possibility of stopping the machine after the dangerous position of the injured person should have been seen; not as a basis of recovery, but to overcome the defense.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Charles Scholl, as administrator of Charles Hoefle against William Grayson, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles Hoefle, now deceased, was run over by an automobile belonging to defendant and operated by him on October 25, 1907. Three other men were in the machine with defendant, who was driving. The accident happened about 6:30 o'clock p. m., when deceased, who worked at the Colonial Laundry, 4020 Olive street, in St. Louis, had started for home, walking along the south side of Olive to Westminster Way, where he stood for a few minutes awaiting a car. Two other men were waiting there, and as a car came along from the west, bound east, the three stepped out into the street to get aboard. Just then one of the men who was standing immediately east of deceased happened to look northeast, and saw defendant's automobile, which had been following a car on the west-bound or north street railway track from down town, veer so quickly toward the southwest and around to the south side of the car the men were waiting for, that two of them barely had time to jump out of the way, and deceased was caught, thrown down, and dragged under the automobile from 15 to 40 feet, breaking his right arm and otherwise hurting him. The assignment of negligence was running the machine at a high and unlawful speed, and it was supported by evidence for the jury, as defendant's counsel concedes. Deceased was first treated for his arm by a physician whom he afterwards discharged and sued for unskillful and careless treatment. The petition in that case was offered by defendant as an admission against the interest of plaintiff, and, being excluded by the court, an exception was taken to the ruling. Subsequently deceased employed other physicians, who performed three operations on his arm, for the ends of the humerus bone which had been fractured in the accident had overlapped and never united. Portions of the ends of the bone were taken off in order to obtain a better healing surface; but, notwithstanding the three operations, and the fastening of the parts of the bone together with silver wire, the ends never knitted perfectly to the time of the death of Hoefle, which occurred after the trial of the present action. A verdict was given for him for $5,000, and, after a motion for a new trial had been overruled, he remitted $500 of the amount.

The errors assigned on the appeal, besides the one mentioned, are: First, permitting deceased to testify what amount of money, if any, he had expended for medicines, surgical attention, and hospital bills. The reason assigned for this objection was the petition did not say anything about a hospital bill....