Torreyson v. United Rys. Co. of St. Louis

• Decision Date: 10 December 1912
• Citation: 152 S.W. 32,246 Mo. 696
• Parties: TORREYSON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

152 S.W. 32

246 Mo. 696

TORREYSON v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

Rehearing Denied December 21, 1912.

TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTION OF FACTS.

In an action for personal injuries, an instruction on the measure of damages was not erroneous because it assumed that plaintiff was injured and suffered bodily pain and mental anguish, where it did not authorize any damages therefor, unless the jury found for plaintiff, since a finding for plaintiff necessarily implied a finding that she was injured and suffered bodily pain and mental anguish.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Margarette W. Torreyson against the United Railways Company of St. Louis. The St. Louis Court of Appeals affirmed a judgment for plaintiff (164 Mo. App. 366, 145 S. W. 106), and certified and transferred the cause to this court. Affirmed.

This cause was transferred to this court by the St. Louis Court of Appeals, for the reason, as stated, that the judges of said Court of Appeals deemed the decision rendered therein contrary to two former decisions of the Kansas City Court of Appeals, which decisions are cited in the opinion hereinafter set out.

The decision upon which the cause was certified to this court we set forth in extenso, as follows:

[See 164 Mo. App. 366, 145 S. W. 106, therefor.]

Boyle & Priest, Morton Jourdan, and T. E. Francis, all of St. Louis, for appellant. L. P. Crigler, of St. Louis, and Barclay, Fauntleroy, Cullen & Orthwein, for respondent.

KENNISH, J.

The foregoing opinion is adopted as the opinion of this court, except in so far as it holds that the two decisions of the Kansas City Court of Appeals cited therein are in conflict with the conclusion reached. The instructions condemned in the two cases referred to we think distinguishable from the instruction considered in this case, and particularly so as to the instruction held erroneous in the case of Glover v. Railroad, 129 Mo. App. 563, 108 S. W. 105. We are of the opinion that the St. Louis Court of Appeals was fully warranted in affirming the judgment, so far as the said instruction is concerned, by precedents of this court; and therefore it would be profitless to enter upon a discussion of the two decisions deemed to be in conflict with that result.

An analysis of the instruction assailed herein will disclose that as a basis for awarding damages to the plaintiff all of the facts, except three, were stated hypothetically. The three not so stated were: First, "the bodily pain and suffering and mental anguish endured by her, resulting from the injuries received;" second, "the character and extent of her injuries, and whether they are permanent in their nature;" and, third, the assumption of injury in the clause beginning, "and if from the evidence you find and believe that her injuries are reasonably certain to cause her pain and anguish," etc. The second of the foregoing relates...