State ex rel. Spears v. McCullen

• Decision Date: 08 March 1948
• Docket Number: 40590
• Parties: State of Missouri, at the Relation of Moses Spears, Relator, v. Hon. Edward J. McCullen, Hon. Wm. C. Hughes and Hon. Lyon Anderson, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

210 S.W.2d 68

357 Mo. 686

State of Missouri, at the Relation of Moses Spears, Relator, v. Hon. Edward J. McCullen, Hon. Wm. C. Hughes and Hon. Lyon Anderson, Judges of the St. Louis Court of Appeals

No. 40590

Supreme Court of Missouri

March 8, 1948

Rehearing Denied April 12, 1948.

Original Proceeding in Certiorari.

Affirmed.

Mattingly Berthold, Jones & Richards and Douglas H. Jones for appellant.

(1) Plaintiff's instruction on negligence is erroneous and not based on the pleadings. It is broader than the pleadings and constituted a departure. Demurrer should have been sustained. There is no substantial evidence to support the judgment. The giving of such instruction is therefore prejudicially erroneous. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Richardson v. K.C Rys. Co., 288 Mo. 258, 231 S.W. 938; Cummings v. Holly, 60 S.W.2d 52; 2 Missiuri Law Review, p. 426; White v. K.C. Pub. Serv. Co., 193 S.W.2d 60; Hoeller v. St. L. Pub. Serv. Co., decided Jan. 21, 1947, not yet reported. (2) Plaintiff's Instruction 4 erroneously assumed matters in controversy and is therefore erroneous. C.H. Robinson Co. v. Frissell, 132 S.W.2d 1049; Weinel v. Hesse, 174 S.W.2d 903; Kirkham v. Jenkins, 340 Mo. 911, 104 S.W.2d 234; Counts v. Thomas, 63 S.W.2d 416; Boyer v. General Oil Products, 78 S.W.2d 450; Bente v. Finley, 83 S.W.2d 155. (3) Plaintiff's instruction on loss of wages, past and future, is erroneous, as there was no evidence to support same. Nowlin v. K.C.P.S. Co., 58 S.W.2d 324; Leingang v. Geller, Ward & Hassner, 335 Mo. 549, 73 S.W.2d 256; Gelatine v. Borglum, 235 Mo.App. 1141, 150 S.W.2d 1088; Kelly v. Kiel, 117 S.W.2d 1086; Chilcutt v. Le Clair, 119 S.W.2d 1; Tyon v. Wabash Ry. Co., 207 Mo.App. 322, 232 S.W. 786; McElroy v. Swenson, 213 Mo.App. 160, 247 S.W. 209; McNeill v. Cape Girardeau, 153 Mo.App. 424, 134 S.W. 583; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583. (4) Plaintiff's evidence relating to property damage was insufficient to support his claim and his instruction thereon was improper and erroneous. (5) The verdict for $ 3500 for a sprained wrist, without objective signs of injury, with some limitation thereof, which might be the result of arthritis, and with but $ 646 actual damage, is not based on any substantive evidence and is so excessive as to indicate passion and prejudice and misconduct on the part of the jury. Franklin v. Fisher, 51 Mo.App. 345; Gabriel v. Met. Street Ry. Co., 148 S.W. 168, 164 Mo.App. 56; Young v. Bacon, 183 S.W. 1079; Smith v. Scudiero, 204 S.W. 565; Hoffmann v. Peoples Motor Bus Co., 288 S.W. 948; Ulmer v. Farmham, 28 S.W.2d 113; Heckert v. St. Louis Hockey Club, 45 S.W.2d 869; Garrison v. U.S. Cartridge Co., 197 S.W.2d 675; Clark v. C., R.I. & P. Ry. Co., 318 Mo. 453, 300 S.W. 758.

Louis Yaffe for respondent; Orville Richardson of counsel.

(1) The court properly refused to direct a verdict for defendant since there was substantial evidence of its negligence as pleaded and submitted. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Jones v. Central States Oil Co., 170 S.W.2d 153; Schlue v. Mo. Pac. Transp. Co., 62 S.W.2d 934; Day v. Banks, 102 S.W.2d 946; Hollensbe v. Pevely Dairy Co., 38 S.W.2d 273. (2) The court did not err in giving plaintiff's Instruction 1. It was not broader than the pleadings, but was based on the third paragraph thereof. Defendant conceded that the instruction submitted specific negligence and the cases so hold. Jones v. Central States Oil Co., supra, both cases; Thompson v. Keyes-Marshall Bros. Livery Co., 214 Mo. 487, 113 S.W. 1128; Richardson v. K.C. Rys. Co., 288 Mo. 258, 231 S.W. 938; Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; State ex rel. Kansas City Rys. Co. v. Trimble, 260 S.W. 746. (3) The petition must be construed as a whole, looking to all of its charging parts, and must be liberally construed to do substantial justice. Mo. R.S.A., sec. 847.57; DeVault v. Truman, 194 S.W.2d 29; Hoeller v. St. L. Pub. Serv. Co., 199 S.W.2d 7; Gerber v. Schutte Inv. Co., 194 S.W.2d 25. (4) Moreover, since there was evidence to support the charge submitted, the pleadings would in any event be taken to have been amended to conform to the proof. No reversible error appears. Mo. R.S.A., sec. 847.82. (5) Plaintiff's Instruction 4 did not assume any matter in controversy, but submitted facts relating to plaintiff's damages for the jury's findings. Hall v. Martindale, 166 S.W.2d 594; Riner v. Riek, 57 S.W.2d 724; State ex rel. St. L. Pub. Serv. Co. v. Haid, 333 Mo. 845, 63 S.W.2d 15; Sneed v. St. L. Pub. Serv. Co., 53 S.W.2d 1062. (6) Moreover, defendant did not make any such objection at the trial and is precluded from presenting this point on appeal. Supreme Court Rule 3.21; Duncan v. St. L. Pub. Serv. Co., 197 S.W.2d 964; Ford v. L. & N.R. Co., 196 S.W.2d 163; Goggin v. Schoening, 199 S.W.2d 87. (7) Moreover, the point raised on the appeal is not the same as that made in the trial court and therefore is not open to review here. Luechtefeld v. Marglous, 151 S.W.2d 710. (8) Moreover, the point in the brief is too general to invoke the ruling of this court. Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284; Luechtefeld v. Marglous, 151 S.W.2d 710; Rutledge v. Weisenborn, 142 S.W.2d 884; Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 61. (9) There was substantial evidence to support the submission in Instruction 4 of the loss of wages of plaintiff, past and future. Byars v. St. L. Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Taylor v. Terminal R. Assn., 112 S.W.2d 944; Fisher v. Ozark Milk Service, Inc., 356 Mo. 95, 201 S.W.2d 305. (10) Many items of damage are not susceptible of exact mathematical calculation, but are not for that reason to be denied. Mabrey v. Cape Girardeau & Jackson Gravel Co., 92 Mo.App. 596, 69 S.W. 394; Gildersleeve v. Overstolz, 90 Mo.App. 518; Northcutt v. St. L. Pub. Serv. Co., 49 S.W.2d 89. (11) The evidence in this case was substantial and calculable. Berryman v. People's Motorbus Co., 228 Mo.App. 1032, 54 S.W.2d 747; Lovins v. St. Louis, 90 S.W.2d 430; Hill v. Landau, 125 S.W.2d 516. (12) Moreover, since the instruction was in proper form and supported by evidence, defendant's failure to request a limiting instruction disables it from assigning error on appeal. Mabrey v. Cape Girardeau & Jackson Gravel Co., supra; King v. St. Louis, 250 Mo. 501, 157 S.W. 498; Taylor v. Terminal R. Assn., 112 S.W.2d 944; State ex rel. Sappington v. American Surety Co. of N.Y., 41 S.W.2d 966. (13) Moreover, the submission of an unproved item of damage would not in any event constitute reversible error where, as here, the verdict was not excessive, even if this item be ignored. Long v. F.W. Woolworth Co., 159 S.W.2d 619. (14) There was substantial evidence supporting the submission in plaintiff's Instruction 4 of the damage to plaintiff's automobile. Finley v. Austin, 132 S.W.2d 1109; Burnham v. Williams, 198 Mo.App. 18, 194 S.W. 751; Gay v. Samples, 227 Mo.App. 771, 57 S.W.2d 768. (15) Plaintiff was competent, as the owner, to testify to the difference in the market value of his automobile before and after the collision. Hellums v. Randol, 225 Mo.App. 1092, 40 S.W.2d 500; Taylor v. St. Louis & H.R. Co., 256 S.W. 499; Klein v. St. Louis Motor Car Co., 237 S.W. 848; 22 C.J. 581; 32 C.J. 315, 316, note 30. (16) There is nothing before this court to review upon the assignment that the verdict "is so excessive as to indicate passion and prejudice and misconduct on the part of the jury." In any event, the verdict was not excessive. An assignment of this nature presents a matter solely within the discretion of the trial court. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157; Marczuk v. St. L. Pub. Serv. Co., 196 S.W.2d 1000; Stokes v. Wabash R. Co., 197 S.W.2d 304. (17) The evidence must be viewed in that light most favorable to the plaintiff. The amount of damages awarded is within the special province of the jury and should not be interfered with on appeal unless the verdict is so large as to offend against all sense of right and is unmistakably beyond the bounds of reason. In determining the issue of whether a verdict is excessive, this court has taken judicial notice of the present deflated purchasing power of the dollar. Williamson v. Wabash R. Co., 196 S.W.2d 129; Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435; Capstick v. T.M. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480; Mollman v. St. L. Pub. Serv. Co., 192 S.W.2d 618. (18) The verdict was extremely modest. Lepchenski v. Mobile & O.R. Co., 332 Mo. 194, 59 S.W.2d 610; Greenan v. Emerson Electric Mfg. Co., 191 S.W.2d 646; Clark v. Widmer Engineering Co., 263 S.W. 501; Stotler v. Blanton-Sims Co., 273 S.W. 137; Huntington v. Kansas City Rys. Co., 233 S.W. 95; Muehlebach v. Muehlebach Brewing Co., 242 S.W. 174; Kuethen v. K. C. Power & Light Co., 276 S.W. 105.

OPINION

Conkling, J.

Moses Spears, plaintiff below, recovered a judgment for damages for personal injuries in the circuit court of the City of St. Louis. The St. Louis Public Service Company, defendant below, appealed to the St. Louis Court of Appeals. That court reversed the judgment and remanded the cause. See 202 S.W.2d 578. To review the record we brought the cause here by certiorari.

The collision between the automobile operated by plaintiff and the street car of defendant occurred on Lockwood Avenue, near the intersection of Gray Avenue, in Webster Groves, Missouri. Lockwood Avenue extends east and west; street cars run both east and west on that street; Gray Avenue extends north and south intersecting Lockwood. Travelling south on Gore Avenue plaintiff came to its intersection with Lockwood and stopped his automobile. He testified ...