Smoot v. Kansas City

• Decision Date: 06 March 1906
• Citation: 92 S.W. 363,194 Mo. 513
• Parties: SMOOT v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

92 S.W. 363

194 Mo. 513

SMOOT v. KANSAS CITY, Appellant

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.

Reversed and remanded.

Edwin C. Meservey, W. H. H. Piatt and James W. Garner for appellant.

(1) The court erred in giving instruction 4 upon the part of respondent, because said instruction disregards the prayer for damages in respondent's petition, because it permits respondent to recover for loss from his means of livelihood without any limitation as to the amount when the petition places the same at $ 250, and permits a recovery for surgeon's hire for $ 350, when the petition limits the same to $ 200. Maupin v. Triplett, 5 Mo. 423; Hayton v. Hope, 3 Mo. 54; Tilford v Ramsey, 43 Mo. 410; Pope v. Salsman, 35 Mo 362; Reed v. Crane, 89 Mo.App. 670; Carter v Shotwell, 42 Mo.App. 663; Wright v. Jacobs, 61 Mo. 19; Crews v. Lackland, 67 Mo. 619; Waddingham v. Hulett, 92 Mo. 528; Lester v. Railroad, 60 Mo. 265. (2) There can be no remittitur entered in this case because of the excess, if any, allowed on the item of loss of time which cannot be calculated from the evidence. Creve Coeur Lake & Ice Co. v. Tamm, 90 Mo.App. 202; Slattery v. St. Louis, 120 Mo. 183; Hughes on Instructions (Ed. 1905), sec. 106. (3) The court erred in refusing instruction 11 asked by the appellant which withdrew from the jury, in estimating damages, any consideration of hernia, for the reason that there was not sufficient evidence upon which to base the same, and there was no evidence connecting it with the injury. Railroad v. Railroad, 118 Mo. 599.

H. J. Latshaw, Jr., Chas. E. Yeater and E. M. Perdue for respondent.

(1) The contention of appellant is that the court erred in excluding the testimony of Dr. Monahan, in regard to the doctor's knowledge and opinion relative to respondent's injuries and especially concerning the doctor's knowledge of whether or not respondent was spitting blood while under the doctor's observation and examination at the scene of the accident. The court did not err in sustaining respondent's objections to this testimony. Sec. 4659, R. S. 1899; Mellor v. Railroad, 105 Mo. 455; Gartside v. Ins. Co., 76 Mo. 446; James v. Kansas City, 85 Mo.App. 20; Smart v. Kansas City, 91 Mo.App. 586; Hayworth v. Railroad, 94 Mo.App. 215; Kling v. Kansas City, 27 Mo.App. 231; Arnold v. City, 85 S.W. 106. (2) On the opening day of this term of this court, respondent filed a motion on diminution of record, asking this honorable court for a writ of certiorari, directed to the clerk of the circuit court of Pettis county, ordering him to send to the Supreme Court the amended petition upon which this case went to trial. Owing to the fact that this motion has not yet been acted upon by this honorable court, and owing to the fact that the time is about up within which respondent is permitted, under the law, to file this brief and argument, respondent will now reply to appellant's contention that appellant's instruction on the measure of damages was not in harmony with the allegations on the estimates of damage in said amended petition. Taking it for granted, therefore, that the petition which appellant claims this case went to trial upon, contained the statements he alleges were in said petition, viz: That said petition placed a limitation of $ 200 upon the amount respondent has obligated himself for doctors' and surgeons' care, and $ 250 for loss from his means of livelihood, while said instruction limited said doctors' bill to $ 350 and placed no limit on the amount for time lost. Respondent's reply is: If all this had been true, respondent would have had the right, upon motion at the close of the trial, to have amended his petition to correspond with the evidence and said instruction, and a refusal of the trial court to allow respondent to so amend under the conditions would have been held by this court to be an abuse of discretion. Moreover, with the permission of this court, respondent has the right, under the practice, to amend his petition in the Supreme Court so as to make said petition correspond with the evidence and said instruction. Wherefore, respondent hereby asks permission to make said amendment, providing, of course, this court finds that the petition set forth by appellant is the petition upon which trial was had, and providing, also, that this honorable court finds said discrepancy, if any, to be material. If, for any reason, this court does not see fit to grant respondent's said request to amend, then respondent's reply to this contention of appellant is: The highest computation that the jury could have put upon the time lost, under the evidence, would not equal the amount claimed in respondent's petition. Respondent is, therefore, unable to see how appellant could have been injured, even if all that appellant claims be true. In regard to the item on doctors' bills, suffice it to say, that if the petition placed the damages on that item at $ 200, and the instruction at $ 350, there is no way of figuring by which appellant could have been damaged by said mistake for over the sum of $ 150. This amount, or any other amount that this court may in its wisdom, and its sense of equity, decide that respondent should remit, will be gladly and speedily complied with. Magrane v. Railroad, 183 Mo. 119; McLean v. Kansas City, 81 Mo.App. 72. Furthermore, it is very doubtful if appellant is in a position to now raise this objection. Freirsmuth v. McKee, 86 Mo.App. 64. Moreover, the judgment in the case at bar is so plainly for the right party, that even though the court may believe some error crept into the instruction above referred to, we believe this court will, in accordance with its past rulings, decide that the judgment should be affirmed, being so clearly and palpably for the right party. Magrane v. Railroad, 183 Mo. 119; Cass County v. Bank, 157 Mo. 133; Jones v. Brownlee, 161 Mo. 258; King v. King, 155 Mo. 406.

OPINION

FOX, J.

This cause is here upon appeal from a judgment of the Pettis Circuit Court against defendant in the sum of five thousand dollars. The amended petition, upon which this proceeding rests, was filed at the May term, 1902, of the Pettis Circuit Court, and is as follows:

"For cause of action against defendant, plaintiff states that on July 25th, 1900, and at all times herein mentioned, defendant was and still is a municipal corporation of the first class of the State of Missouri, organized and existing under a special charter as by law provided, with all the powers, privileges, and liabilities incident thereto.

"That at all said times, and for a number of years prior thereto, Brook street and especially that portion thereof hereinafter referred to, was a public street and thoroughfare of and within said defendant city, and at all said times there was a public sidewalk on the west side of said Brook street, and especially that portion thereof in front of number 2235 Brook street, and said sidewalk was, with the knowledge, consent, and invitation of defendant, used as a general public sidewalk for the purposes of travel, at all said times.

"Plaintiff further states that on said 25th day of July, 1900, and for a long time prior thereto, defendant carelessly and negligently maintained said sidewalk on said Brook street, and especially that portion thereof in front of said number 2235 Brook street, namely, about 273 feet south of the southwest corner of said Brook street and Twenty-second street, and allowed the same to be maintained and to remain in a dangerous and defective condition in this, to-wit: The stringers of said sidewalk at said point were rotten and decayed and were broken, dilapidated and insecure. The boards of said sidewalk at said point, and for several feet on both sides thereof, were loose, decayed and broken, and some of them entirely missing, and defendant carelessly and negligently failed to maintain barriers, light, or other warnings at or near said point of said sidewalk to warn pedestrians of said defect and dangers at said time, namely, said July 25th, 1900, and for a long time prior thereto.

"Plaintiff says that defendant knew of said defects, and all of said defects on said July 25th, 1900, and for a long time prior thereto, or by the exercise of ordinary care and caution on its part, could have known thereof at all said times, and in reasonable time to have remedied said defects prior to said July 25th, 1900, by the exercise of ordinary care and caution, but defendant carelessly and negligently failed to do so.

"Plaintiff states that on or about said July 25th, 1900, at about the hour of 9 p. m. thereof, he was lawfully walking in a southerly direction over and upon said sidewalk on said west side of Brook street, and as he reached a point of said sidewalk about said 273 feet south of the southwest corner of said Brook street and said Twenty-second street, the same being directly in front of said number 2235 Brook street, he stepped his left foot in a hole in said sidewalk, where two of said boards and parts of another one of said boards were out and missing, owing to the defects above set forth, and he was thereby thrown violently into said hole and upon said sidewalk and against said sidewalk upon the ground, greatly injuring him in this, to-wit: Plaintiff's left leg and knee and left arm and elbow were wrenched and bruised; three ribs of the left side of plaintiff's body were fractured; plaintiff's back and spine and spinal cord were wrenched and his entire nervous system shocked; and plaintiff's heart and lungs were injured, but plaintiff does not know, and for that reason cannot state the nature of said injuries to his heart and lungs; and plaintiff was ruptured in his left side, producing hernia.

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