Stoetzle v. Sweringen

• Decision Date: 25 November 1902
• Citation: 70 S.W. 911,96 Mo.App. 592
• Parties: WILLIAM STOETZLE, Respondent, v. MARTHA SWERINGEN, Appellant
• Court: Missouri Court of Appeals

70 S.W. 911

96 Mo.App. 592

WILLIAM STOETZLE, Respondent, v. MARTHA SWERINGEN, Appellant

Court of Appeals of Missouri, St. Louis

November 25, 1902

Appeal from St. Louis City Circuit Court.--Hon. Horatio D. Wood Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Thos A. Russell and H. Chouteau Dyer for appellants.

(1) In O'Brein v. Loomis, 43 Mo.App. 29, the rule is stated by Judge THOMPSON, p. 40, thus: "The element of damage included in one of the instructions was 'any loss of earnings.' It is conceded there was no evidence tending to show what plaintiff's earning capacity was . . The giving of this instruction was therefore error." Culberson v. Railroad, 50 Mo.App. 556; Smith v. Railroad, 108 Mo. 251; Winter v. Railroad, 74 Iowa 448. (2) The instruction on the measure of damages also directed the jury to find for plaintiff for "any loss of time which was caused him by reason of such injuries." As plaintiff's earning power is an element in fixing compensation for loss of time and there was no testimony as to his earning capacity, this left the jury to fix any price for this time they saw fit and was therefore erroneous. Mammerberg v. Railroad, 62 Mo.App. 563.

Rassieur & Rassieur for respondent.

(1) Where a coal-hole has been constructed in the sidewalk, the owner must exercise reasonable care to keep the cover in safe condition. If the cover is in a safe condition when he leases the premises, then the landlord is not liable for injuries occurring during the occupancy of the lessee. (2) But if at the time of the leasing, the cover was in an insecure and defective condition, and the owner knew of it, or by the exercise of ordinary care, might have discovered it, then the landlord is liable, notwithstanding the lease. Stoetzle v. Sweringen, 90 Mo.App. 588.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

--This case was here on a former appeal and we adhere to what we said in the opinion then delivered, namely; that there was evidence to go to the jury as to whether the defendant had leased the premises, in front of which plaintiff was injured by falling into a coal-hole, to Saunders shortly before the accident, whether the cover to the coal-hole was then in reasonably good repair and whether defendant knew, or by the exercise of ordinary care might have known it was out of repair, if in fact it was.

We think, too, the petition states a cause of action for negligence.

Only one question is presented on this appeal which requires comment: the instruction given on the measure of damages told the jury if they found the issues in favor of the plaintiff they should allow him damages, among other things, "for any loss of time which was caused to him by reason of such injury."

It is conceded no proof was made of the value of plaintiff's time--what his earnings or the profits of his business were. Neither is there any allegation in the petition counting on loss of time as an element of damages.

The books are replete with cases in which judgments were reversed on account of carelessness in submitting instructions allowing juries to give damages for loss of time or earnings without putting in any proof from which they might estimate the damages sustained in that way. This practice has been repeatedly condemned by the courts, but it seems to be persisted in...