Trowbridge v. Wilson & Company

• Decision Date: 09 February 1918
• Docket Number: 21,572
• Citation: 102 Kan. 521,170 P. 816
• Court: Kansas Supreme Court
• Parties: EMMA M. TROWBRIDGE, Appellee, v. WILSON & COMPANY, Appellant

170 P. 816

102 Kan. 521

EMMA M. TROWBRIDGE, Appellee, v. WILSON & COMPANY, Appellant

No. 21,572

Supreme Court of Kansas

February 9, 1918

Decided January, 1918.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WORKMEN'S COMPENSATION ACT--Pain from Injuries Received--Right to Compensation Therefor. Under the workmen's compensation act, compensation can be recovered where inability to labor is caused by pain resulting from an injury received in an accident arising out of and in the course of the employment.

J. E. McFadden, O. Q. Claflin, both of Kansas City, and O. C. Mosman, of Kansas City, Mo., for the appellant.

W. W. McCanles, Charles E. Thompson, and H. F. Gorsuch, all of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

Under the workmen's compensation act, the plaintiff recovered judgment for $ 636 for four weeks' total incapacity for labor, and 208 weeks' partial incapacity. The defendant appeals. The defendant complains--

"Of the action of the trial court in admitting and excluding evidence, in refusing to give the instruction requested by appellant, the giving of instruction Number One of the instructions given by the court, of the action of the trial court in overruling defendant's motion for a new trial and overruling defendant's motion to set aside the special findings of the jury, and in entering judgment in favor of the plaintiff and against the defendant."

In opening its argument, the defendant says:

"The error of the court in admitting and excluding evidence, in refusing to give the instruction requested by defendant and in giving instruction Number One of the instructions given by the court all involve the action of the trial court in allowing the pain and suffering claimed by the plaintiff to enter into this case and be considered by the jury as affecting plaintiff's recovery, and will, therefore, be considered jointly."

In her petition, the plaintiff alleged that because of the injuries sustained by her, she was unable to work for more than a month, and will for all time suffer such pain that she will never again be able to work and earn wages as before. There was evidence to show that the injury was painful, and that the pain prevented the plaintiff from working.

In the first instruction, in stating the case to the jury, the court said:

"Plaintiff in her petition alleges in substance that . . . the plaintiff was laid off from work for more than a month, and will for all time suffer such pain that she will never again be able to work and earn wages as before."

The defendant asked the court to give the following instruction:

"You are instructed that the plaintiff is not entitled to recover herein for any pain or...