Spivack v. Hahn Bakery Co.

• Decision Date: 02 June 1919
• Docket Number: No. 20165.,20165.
• Citation: Spivack v. Hahn Bakery Co., 214 S.W. 166 (Mo. 1919)
• Parties: SPIVACK et al. v. J. HAHN BAKERY CO. et al.
• Court: Missouri Supreme Court

214 S.W. 166

SPIVACK et al. v.J. HAHN BAKERY CO. et al.

No. 20165.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Motion to Transfer to Court in Bane Denied July 9, 1919.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Abraham Spivack and another against the J. Hahn Bakery Company and another.From an order setting aside judgments for defendants and granting a new trial, they appeal.Affirmed, and cause remanded for further proceedings.

Earl M. Pirkey, of St. Louis, for appellants.

Adolph Abbey and Fauntleroy, Cullen 44; Hay, all of St. Louis, for respondents.

BROWN, C.

This suit was instituted May 8, 1915.The plaintiffs are the parents of Ida Spivack, a child about 8½ years old, who was, on April 7, 1915, run upon and injured by the horses and wagon of the defendant bakery company, which was being driven by the defendant Feldman, its driver, along Sixteenth street in the city of St. Louis.The child died on the 24th of the same month from her injuries so received.The allegation of damages and prayer for relief in the petition is as follows:

"Plaintiffs further state that they have been deprived of the society, comfort, enjoyment, and earnings of their said minor child to the plaintiffs' damage in the sum of $10,000.

"Wherefore, the premises considered, plaintiffs pray judgment against the defendants for the sum of $10,000, together with their costs."

At the December term, 1915, the cause was tried to a jury, which, after hearing the evidence and receiving the instructions of the court and considering the same, returned a verdict for the defendant, which was, upon motion of plaintiffs, set aside on the ground that it was against the weight of the evidence.This appeal is taken from the order setting aside the judgment and granting a new trial.

The errors assigned by appellants are as follows:

"(1)The court erred in granting a new trial, for the reason that there is no evidence in the record on which a verdict for plaintiffs can stand tending to show negligence on the part of either defendant.

"(2) The action of the court in granting a new trial is erroneous, because no damages were or could be proven which are alleged in the petition."

1.For convenience we first notice the second assignment of error.It means, as we gather from the argument, that the plaintiffs, in their petition, without any allegation of general damages, rely on four elements of damage, neither of which is recoverable in an action of this character.These are that they have been deprived of the "society, enjoyment, comfort, and earnings" of their deceased child.The appellants do not deny that the probability or even "possibility" of future earnings may be shown as elements of damage, but insist that "`have been deprived' is a verb in the past tense, and under every rule of construction in correct English and in provincial and vulgar English" refers to the past and not to the future.The implication is that the petition speaks as of the time the alleged wrong was consummated by death, and is therefore meaningless in this respect.They do not consider that it also speaks necessarily of the effect of the wrong charged, which lies in the future and not in the past, and cannot therefore be misunderstood.

Even as a philological and grammatical proposition this is unsound.The expression refers to a past and perfect act of deprivation.The English verb "to deprive" has many synonyms referring to future effect, among which are "to hinder from,""to debar,""to shut out," any one of which would equally well express the evident intention of the pleader.The fact of death upon which this cause of action arose is surely a perfect bar, a supreme hinderance, which completely shuts the plaintiffs out from having the future earnings of their child.There is nothing in this point.

2.The first assignment of error is founded upon the proposition that there was no substantial evidence tending to support the allegation of negligence on the part of either defendant.That the liability of both stands upon the same facts is properly assumed in argument.The question of negligence of the driver and the contributory negligence of the child were submitted in instructions of which no complaint is made except that the evidence was insufficient to authorize a verdict for plaintiff.It is upon this question alone that the assignment hangs.

The appellant Feldman testified, in substance, that at the time of the accident he was driving the team of the bakery company south along Sixteenth street at or about the crossing of Carr street at a speed of about 5 miles per hour.He drove on the right or west side of the street, but near the center, because, in passing through that section of the street earlier in the day, a number of children were there on the sidewalk or in the gutter playing, and he drove near the center to prevent an accident.When he first noticed this little girl she was on the sidewalk on the east side, with a little group of children, and about 75 feet ahead of him.He turned his head to the other side of the street, and next saw her about 8 feet from him, crossing the street on a run with her head turned back toward the children she had just left, and seemed to be talking with them.He yelled at her, applying the brakes, and pulling in his team at the same time, and started to swing his team toward the west side, and brought them to a stop within 4 feet.He thought that when he yelled she supposed a vehicle or something must be passing behind her, and quickened her pace.She struck the horse with her right shoulder and fell in front of it, and it stepped on her stomach.He also said: "There was absolutely not a vehicle in that block or on the street, or a human person, outside of these children, on the street at that time."This narrative of the accident was related by Mr. Feldman in his direct examination.The width of Sixteenth street at that place was about 36 feet between the curbs.The witness also said that after the accident he had heard the child say to her mother who had come to her from her nearby home: "Mamma, I had to go on the toilet in a hurry, and I ran into the wagon."He said he traveled about 40 feet from the time he saw the child on the sidewalk until he saw her 8 feet from his wagon, during which time he was looking the other way "as a matter of cautiousness to see whether there was any one coming out of a yard, or that probably some one didn't come out of a yard, or probably would come out Into the street; to prevent an accident."This witness said he was satisfied he was driving only 5...