State v. Reynolds

• Decision Date: 02 April 1914
• Parties: STATE ex rel. UNITED RYS. CO. v. REYNOLDS et al.
• Court: Missouri Supreme Court

165 S.W. 729

257 Mo. 19

STATE ex rel. UNITED RYS. CO. v. REYNOLDS et al.

Supreme Court of Missouri.

April 2, 1914.

1. CERTIORARI (§ 44)—ISSUANCE IN VACATION.

A judge of the Supreme Court may, in the exercise of the power of superintending control conferred on the Supreme Court by Const. art. 6, § 8, amendment of 1884, issue in vacation certiorari to a court of appeals to quash its judgment.

2. CERTIORARI (§ 29)—ERRONEOUS DECISIONS —POWER OF SUPREME COURT.

Under Const. art. 6, § 6, declaring that the last previous rulings of the Supreme Court shall be controlling authority in the Courts of Appeals, and section 8, Amendment of 1884, conferring on the Supreme Court superintending control over the Courts of Appeals by mandamus, prohibition, and certiorari, the Supreme Court will on certiorari quash a judgment of a court of appeals, where the Court of Appeals refused to follow the last previous rulings of the Supreme Court, but, before the Supreme Court will do so, the failure to follow such last previous rulings must exist as a matter of real substance and be so plain that no one with fair powers of discrimination will have difficulty in locating the conflict.

3. CERTIORARI (§ 64)—SCOPE OF INQUIRY— POWER OF SUPREME COURT.

The Supreme Court, on certiorari to quash a judgment of the Court of Appeals on the ground that it has failed to follow the last previous decision of the Supreme Court, will consider only the pleadings, evidence, and facts as recited by the Court of Appeals, and will not examine the evidence to ascertain whether the Court of Appeals has correctly stated it.

4. CERTIORARI (§ 36)—OBJECTIONS IN TRIAL COURT—INSTRUCTIONS—CONTROLLING DECISIONS —CONFLICTING DECISIONS.

Where, in an action by a common laborer for personal injuries, there was evidence that he was confined to his bed more than three weeks, but no evidence of the value of his time lost, and there was no requested charge limiting a recovery for time lost to nominal damages, a judgment of a court of appeals affirming the judgment for plaintiff on a verdict, rendered under instructions authorizing a finding for time lost, would not be quashed as conflicting with the last previous decisions of the Supreme Court adjudging that the giving of such an instruction, in the absence of evidence of time lost, was reversible error.

5. TRIAL (§ 256)—INSTRUCTIONS—REQUESTS—NECESSITY.

Where an instruction submitting the issue supported by the pleadings and evidence is only objectionable on the ground that it is too general, a party failing to request a charge limiting the effect thereof cannot complain.

Woodson, Graves, and Faris, JJ., dissenting in part.

In Banc. Certiorari by the State, on the relation of the United Railways Company, against George D. Reynolds and others to quash a judgment of the St. Louis Court of Appeals. Preliminary writ of certiorari (158 S. W. 446) quashed.

This is an original action in this court to quash a judgment entered by the St. Louis Court of Appeals, affirming a judgment of the circuit court of St. Louis city, in a case in which one Edward W. Nelson was respondent and the United Railways Company (the relator herein) was appellant (158 S. W. 446), for the alleged reason that said Court of Appeals failed to follow the last previous ruling of this court, as required by section 6, art. 6, Constitution of Missouri, as amended in the year 1884.

The particular issue upon which it is alleged that respondents, as such Court of Appeals, failed and refused to follow the last previous ruling of this court arose in this wise: The said Edward W. Nelson prosecuted an action in the circuit court of St. Louis city against the relator, for personal injuries alleged to have been inflicted by or through the negligence of relator, in which action a judgment was entered in favor of said Edward W. Nelson for $4,200. In the suit so prosecuted by said Nelson, there was evidence tending to prove that he was confined to his bed three weeks, and that he lost time from his work as a common laborer on account of his injuries, but there was no evidence as to what wages, if any, he had been receiving before his injuries, nor what his work was reasonably worth. The circuit court gave an instruction to the jury authorizing it to find for said Nelson for the time he had lost by reason of his alleged injuries. On appeal, error was assigned by relator on account of the aforesaid instruction. In refusing to reverse the judgment so rendered in favor of said Nelson, the relator asserts that said Court of Appeals failed to follow the ruling of this court in the cases of Slaughter v. Railroad, 116 Mo. 269, 274, 23 S. W. 760, Davidson v. Transit Co., 211 Mo. 320, 344, 109 S. W. 583, and Duke v. Railroad, 99 Mo. 347, 12 S. W. 636.

The instruction given by the circuit court, and which relator contends should have worked a reversal of the judgment obtained by said Nelson, reads as follows: "The court instructs you that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and since receiving the injuries for which he sues (as shown by the evidence), his loss of time, if any, and his physical 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), and such damages, if any, as you may, from the evidence, find reasonably certain he will suffer in the future by reason of his injuries, and you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $10,000." (The italics are our own, and are employed to the end of inviting attention to those words later in the opinion.)

The facts in said case of Nelson v. United Railways Co., and the reasons assigned by respondents for affirming the judgment of the circuit court in said cause, are set out in that part of their opinion which reads as follows: "Plaintiff testified that he was in bed three weeks and four days and was unable to get out of the house until six weeks elapsed after his hurt. It appears, too, that he was unable to perform any kind of manual labor for a week thereafter. As above said, all of this evidence was received without objection on the part of defendant; and, this being true, it was entirely proper for the court to submit the question arising thereon to the jury, though no claim was made in the petition on that account. See Mellor v. Mo. Pac. R. Co., 105 Mo. 455, 16 S. W. 849 ; Loe v. C., R. I. & P. R. Co., 57 Mo. App. 350. The judgment is then not to be reversed for the reason a recovery was allowed as for loss of time in the past because not claimed in the petition, for it is clear that matter was waived by permitting the proof to be received without objection, and is to be regarded as a mere immaterial variance under the statute. Litton v. Chicago, B. & Q. R. Co., 111 Mo. App. 140, 146, 85 S. W. 978. In so far as the right to recover as for loss of earnings in the future is concerned, the petition expressly lays a claim for that, and, of course, the evidence tending to prove it was properly received. By reference to the language of the instruction above set out, it will appear that it does not expressly direct the jury to consider plaintiff's loss of time in the past, but, on the contrary, authorizes a recovery alone for `his loss of time.' See the words italicized in the instruction. But, of course, this authority to consider plaintiff's loss of time as an element of damages is to be viewed as though the jury understood it to authorize a recovery for the time lost in the past as well as diminished earning power in the future. However this may be, the evidence of time lost, as well as that tending to prove a diminished earning capacity, was properly in, and the giving of the instruction as worded is not to be condemned for the mere failure to lay a claim in the petition for past loss of time. But it is argued, though evidence was received as to the loss of time in the past and diminished earning power for the future, the court should not have submitted these elements of recovery to the jury for the reason no evidence was introduced tending to prove the value of plaintiff's time. It is true nothing appears as to the amount plaintiff earned when employed; and, if the case presented the feature of one following some particular calling touching the nature, character, and compensation of which the jury were wholly unadvised, the argument would in-here with much force. It is not so, however, when it appears, as here, that the plaintiff's calling is one of a character and kind which, together with the usual compensation therefor, is well known and understood by all fairly intelligent men in the community. In such cases it is said the jurors in the box know something of the value of the time lost and the earning power diminished, as well as the witnesses called to give testimony thereon. That plaintiff was employed at the time of his injury, the record reveals beyond question. Therefore, that his past loss of time was of value to him sufficiently appears. That his earning power was diminished for the future is not questioned, for the evidence amply reveals it, and then, too, it is said his injuries to the shoulder are permanent. While the amount of wages he received is not shown in the evidence, it appears that he was engaged in the capacity of a common laborer for a manufacturing company, and had charge of hauling from the factory, and loading on the cars, ice cream cabinets for shipment. After his injury he engaged to work for a contractor in laying concrete, but was unable, because of his hurt, to perform the task assigned him and lost the place. It thus appearing that his occupation was that of common laborer, almost any intelligent citizen, who employs common labor, is sufficiently familiar with the value of the time of one so engaged to testify concerning...