Shinn v. United Rys. Co. of St. Louis.

• Decision Date: 01 February 1910
• Citation: 125 S.W. 782,146 Mo. App. 718
• Parties: SHINN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

125 S.W. 782

146 Mo. App. 718

SHINN v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

February 1, 1910.

1. DAMAGES (§ 216)—ELEMENTS—SPECIFICATION —INSTRUCTIONS—LIMITATION.

Where, in an action for personal injuries, plaintiff specified the amount of each element of damage sustained, an instruction that the jury should consider the extent to which plaintiff had been injured in the various elements for which he sought to recover, and find for him such sum as, in the jury's judgment, would compensate him for the injuries received, not exceeding the sum of $500 (the total sum sued for), was affirmative error for failure to limit the amount of recovery on each element of damage specified, to the amount claimed in the petition.

2. TRIAL (§ 255)—INSTRUCTIONS—NECESSITY OF REQUEST.

Where an instruction was affirmatively erroneous, the error was not waived by defendant's failure to request an instruction curing the defect.

3. APPEAL AND ERROR (§ 302)—NEW TRIAL— PRESENTATION OF ERROR TO TRIAL COURT— INSTRUCTION—NUMBER.

The court gave three instructions requested for plaintiff, the third of which was erroneous. Nine instructions were given in all, three for plaintiff, three for defendant, and three by the court on its own motion. Plaintiff's third instruction was for convenience numbered 8 in the list as given by the court, and defendant's motion for a new trial referred to it as "Plaintiff's No. 3." Held, that such reference sufficiently pointed out to the trial court the instruction objected to so as to justify a review thereof on appeal.

Reynolds, P. J., dissenting.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Thomas Shinn against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Case certified to Supreme Court on division.

Boyle & Priest and Morton Jourdan, for appellant. Johnson, Houts, Marlatt & Hawes and John T. Fitzsimmons, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in operating its street car. Plaintiff recovered and defendant appeals. It appears the plaintiff was in the act of boarding one of defendant's cars at a usual stopping place when the car was started suddenly and he was precipitated to the ground and injured. The negligence relied upon for a recovery is that defendant breached its obligation to exercise a high degree of care for plaintiff's safety by suddenly starting the car without warning while he was in the act of boarding the same. The evidence tended to support the allegation referred to. On appeal it is argued that the court erred in giving an instruction pertaining to the measure of damages in that it failed to limit the amounts therein which plaintiff was entitled to recover under the allegations of his petition. Besides alleging his injuries and that plaintiff suffered great pain of body and mind therefrom, the petition particularly specifies that he had been thereby disabled from laboring at his avocation as a bartender for a period of two months, and thus incurred a loss of time from his means of livelihood and consequent wages amounting to $156. It alleges too that he incurred and paid medical expenses amounting to $30; that his suit of clothes and hat, of the reasonable value of $40, were destroyed as a result of being thrown upon the ground and dragged upon the street. The petition concludes with a general prayer for damages to the amount of $500. The evidence tended to prove the various items of damage specified. The instruction on the measure of damages given by the court at the plaintiff's instance and request incorporates and authorizes the jury to award damages to the plaintiff in event they found the issue for him on each and all of the elements of damage specified in the petition and above referred to, but wholly fails to direct the jury that they should limit the amount of recovery on each element of damages specified to the amount sued for in the petition. The instruction is as follows: "The court instructs you, gentlemen of the jury, that if you find for the plaintiff you should, in estimating his damages, consider his physical condition before and after receiving the injuries for which he sues as shown by the evidence, the physical pain and mental anguish, if any, suffered by him on account of his injuries at the time of and since such injuries, as shown by the evidence to have been caused by the injuries then and there received; the extent, if any, to which he has been prevented and disabled by reason of such injuries from working and earning a livelihood for himself at his regular employment as a bartender; his necessary expenses for medical attention in endeavoring to be cured; his loss by reason of damage, if any, to his wearing apparel, as a result of the falling or being thrown from defendant's car; and you may find for him such sum, as in the judgment of the jury, under all the evidence in the case, will compensate him for the injuries then and there received, if any, wages or earnings lost, necessary expenses incurred, and damage to wearing apparel suffered, not, however, exceeding the sum of five hundred dollars." No other instruction on the measure of damages was requested by either party or given by the court. It is argued here that this instruction falls within the rule announced in the case of Heinz v. United Railways Co., 122 S. W. 346, recently decided by this court, and that the judgment should be reversed for the reason that it permitted the jury to award a recovery for plaintiff on each and all of the elements of damage specified therein over and beyond the amount claimed on the particular specification or element of damage in the petition. In other words, it is argued the instruction is deficient in not directing the jury to confine their award of compensation, if any, to an amount not exceeding $156 for loss of time, $30 for medical expenses and $40 for the loss of his clothing and hat. Upon examining the pleadings and proof, we are persuaded the argument is sound. There is nothing whatever in either the petition or the proof tending to aid the matter from the plaintiff's standpoint, as there was in the case of Lindsay v. Kansas City, 195 Mo. 166, 93 S. W. 273, and it appears the judgment should be reversed and the cause remanded for the same reasons as heretofore given in the case of Heinz v. United Railways Company, 122 S. W. 346. However, the plaintiff directs an argument against the rule announced in Heinz v. United Railways Company, supra, and says that in that case this court misinterpreted the case of Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363. It is said, too, that the ruling of this court given in the Heinz Case is in conflict with the more recent decision of the Supreme Court in Lindsay v. Kansas City, 195 Mo. 166, 93 S. W. 273. In view of those suggestions, we deem it proper to again review those cases and more explicitly set forth our reasons for the judgment given in the case of Heinz v. United Railways Company, supra.

In the first place, the Constitution of Missouri commands that the last previous ruling of the Supreme Court on any question of law or equity shall in all cases be the controlling authority in the Courts of Appeals. See section 6 of the Constitutional amendment adopted in November, 1884 (Ann. St. 1906, p. 244). Now, we understand it to be our duty, under this constitutional mandate, to follow the last previous ruling of the Supreme Court on any given question in every instance where the ruling of the Supreme Court is in point. Believing this to be our duty, all of the members of the court concurred in the opinion prepared by Judge Goode and delivered in Heinz v. United Railways Company, 122 S. W. 346. The court adheres to that ruling. We believe it to be a correct interpretation of the opinions of the Supreme Court therein referred to, and an accurate application of the principle announced. It is now said that the Heinz Case did not properly interpret Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363, as the chief question discussed in the Smoot Case related to the propriety of a remittitur. We do not so understand that case. It is true that much of the opinion in the Smoot Case is devoted to the discussion as to whether or not the error contained in the instruction could be cured by a remittitur; but this was a secondary matter, only, as the fact which moved this discussion was the error in the instruction theretofore considered. The court first examined the instruction and denounced it as reversible error for the reason, among others, that it failed to limit the recovery for loss of time from the means of livelihood to the amount claimed on that score in the petition. After having pointed out this infirmity in the instruction and denounced it as error, the court then examined and treated with the question as to whether or not it was competent to alleviate the baneful influence of the instruction in the case by ordering a remittitur of an amount equivalent to that which the award of damages had been enhanced by the failure of the instruction to properly limit the amount of the recovery. Upon full consideration of this question, the court declared it to be impossible to ascertain how much beyond the amount sued for on this score the award of damage by the jury had been inflated, and therefore a remittitur could not rectify the evil entailed by the error contained in the instruction. The judgment was therefore reversed because the error of the instruction was so vital as to render it incurable by remittitur. From a study of the report of the Smoot Case, it appears the plaintiff itemized his damages in the petition; that is to say, among other things, he alleged, in substance, that on account of the injury sustained he had suffered a loss of time from his means of livelihood to the amount of $250. In instructing the jury for the...