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

• Decision Date: 04 June 1912
• Citation: 147 S.W. 1098
• Parties: WALTERS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

147 S.W. 1098

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

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. DAMAGES (§§ 220, 210)—PLEADING—RECOVERY.

Where a petition claims general and special damages in named amounts, the jury, in assessing the special damages, are confined to the amounts specified; and an instruction, authorizing the recovery of such damages, is erroneous in failing to confine the award within the amounts specified.

2. APPEAL AND ERROR (§ 1140)—DETERMINATION —REVERSAL.

In a personal injury action, where general damages were prayed, and special damages, such as medical attendance and nurse hire, were claimed in named amounts, the instructions erroneously failed to confine the jury's award of special damages to the amounts specified in the petition. The evidence failed to clearly establish the amounts expended for the specified items. Held that, while the appellate court may, in case of an excess verdict, order a remittitur on pain of reversal, where the evidence clearly shows the excess, it could not do so in this case; the evidence giving no criterion for the amount of the remittitur.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Action by Annie Walters against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest, J. C. Kiskaddon, and Paul U. Farley, for appellant. Francis M. Wolf and Erwin Ossing, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence. Plaintiff recovered, and defendant prosecutes the appeal.

The evidence tends to prove that plaintiff was a passenger on defendant's street car, and was injured because of its servants negligently starting the same while she was in the act of alighting therefrom. The appeal presents but one question for consideration, and that relates to the action of the court in omitting to confine the recovery on certain items for special damages to the amounts claimed in the petition. As a result of being thrown upon the ground by the sudden starting of the car while in the act of alighting therefrom, plaintiff received a painful and permanent injury to her knee. It appears that she employed the services of a physician and a nurse to attend her, and expended some means for medicine as well. In the petition plaintiff avers that she expended $65 on account of doctor bills, $10 for medicine, and $20 for nurse hire, and prays for a recovery on account of these matters accordingly. By an instruction on the measure of damages, given at the instance of plaintiff, the court directed the jury to consider as elements thereof, and authorized a recovery for expenditures for medicine and medical attention, but omitted to confine the jury to the amounts, above specified, and claimed on that score in the petition. The instruction complained of is as follows:

"If the jury finds the issues for the plaintiff, in determining the measure of damages, they may take into consideration all the facts and circumstances in evidence, together with her age, the mental and physical pain and suffering endured by the plaintiff, if any, since said injury, in consequence thereof, the character and extent of said injury, and its continuance, if permanent, together with her loss of time and service and her inability, if any, resulting from said injury, to earn a livelihood for herself, and her necessary expense for medicine and medical attention, and you may find for her in such sum as, in the judgment of the jury, under the evidence, will be a round compensation for the...