Stevens v. Kansas City Light & Power Co.

• Decision Date: 27 January 1919
• Docket Number: No. 12907.,12907.
• Citation: 200 Mo. App. 651,208 S.W. 630
• Court: Missouri Court of Appeals
• Parties: STEVENS v. KANSAS CITY LIGHT & POWER CO.

208 S.W. 630

200 Mo. App. 651

STEVENS v. KANSAS CITY LIGHT & POWER CO.

No. 12907.

Kansas City Court of Appeals, Missouri.

January 27, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Lula May Stevens against the Kansas City Light & Power Company. From a judgment for plaintiff, defendant appeals. On motion for rehearing. Reversed and remanded.

Johnson & Lucas and W. H. Lucas, all of Kansas City, for appellant.

Prince & Harris and J. E. Westfall, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is the widow of Edward Stevens, who was killed through the negligence of defendant, and she instituted this action for damages, in which she succeeded in the trial court. We decided the case the 20th of May, 1918, by reversing and remanding on account of the trial court giving an instruction relating to mortality tables. Afterwards a motion for rehearing was granted on the ground that we desired to further consider whether the trial court erred in allowing such instruction. It reads as follows:

"The court instructs the jury that in computing damages, if any, resulting from the loss, if any, of a portion of the earnings of the deceased, Edward Stevens, if any, which you may find the said Lula Stevens, widow, and David William Stevens, child, have sustained and will in reasonable certainty sustain because of the death of said Edward Stevens, you may first find the amount of such annual benefits, if any, and then, in order to determine the present cash value of said benefits, you may multiply the same by the figures in the following table set opposite the age on the table, which age you may find and believe was the age of the deceased at the time of his said death."

The instruction doubtless was intended as a guide to the jury in ascertaining what the deceased's earnings would have been, so that they might allow a proper sum to plaintiff and her young son. There can be no doubt but that such tables may properly be considered for that purpose. Boettger v. Iron Co., 136 Mo. 531, 536, 38 S. W. 298; O'Mellia v. Railroad, 115 Mo. 205, 222, 21 S. W. 503; Grayson v. Grayson, 190 S. W. 930; Davis v. Springfield Hospital, 196 S. W. 104, 108; Collins v. Star Paper Mills Co., 143 Mo. App. 333, 342, 127 S. W. 641. In Pennsylvania, this rule of evidence was once questioned. It is said that such tables are appropriate in ascertaining the average duration of life in insurance cases, but that an individual case "depends on its own circumstances." Shippens and Robbins' Appeal, 80 Pa. 391, 396. But in accordance with the foregoing rulings in this state, as well as in deference to many others, we must rule as we have stated.

The instruction was given, notwithstanding the tables were not introduced in evidence. This we think was permissible, on the ground that the courts will take judicial notice of such tables. Gordon v. Tweedy, 74 Ala. 232, 237, 49 Am. Rep. 813; Louisville & N. R. R. v. Mothershed, 97 Ala. 261, 267, 12 South. 714; Lincoln v. Power, 151 U. S. 436, 441, 14 Sup. Ct. 387, 38 L. Ed. 224; Ruehl v. Telephone Co., 23 N. D. 6, 19, 135 N. W. 793, L. R. A. 1918C, 1063, Ann. Cas. 1914C, 680.

But such instruction should inform the jury that they are not bound by such tables, and that they should consider them in connection with the individual involved, his health, vocation, habits, etc. Schell v. Plumb, 55 N. Y. 592, 599; Vicksburg Railroad v. Putnam, 118 U. S. 545, 554, 7 Sup. Ct. 1, 30 L. Ed. 257; Suell v. Jones, 49 Wash. 582, 96 Pac. 4; Camden & Atl. R. R. v. Williams, 61 N. J. Law, 646, 648, 40 Atl. 634; Arkansas Midland R. R. v. Griffith, 63 Ark. 491, 496, 497, 39 S. W. 550; Crouse v. Railroad, 102 Wis. 196, 207, 78 N. W. 446, 778; Illinois Central R. R. v. Houchins, 121 Ky. 526, 533, 89 S. W. 530, 1 L. R. A. (N. S.) 375, 123 Am. St. Rep. 205; Steinbrunner v. Ry. Co., 146 Pa. 504, 516, 517, 23 Atl. 239, 28 Am. St. Rep. 806. The judge writing the opinion in the last of these cases closed with this remark:

"While we are unable to see how such evidence is to be excluded, I must be allowed to express the fear that it may prove a dangerous element in this class of cases, unless the attention of juries is pointedly called to the other questions which affect it."

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