Wolfe v. Kansas City

• Decision Date: 23 February 1934
• Docket Number: No. 33149.,33149.
• Citation: 68 S.W.2d 821
• Parties: LOTTIE WOLFE v. KANSAS CITY, a Municipal Corporation, Appellant.
• Court: Missouri Supreme Court

68 S.W.2d 821

LOTTIE WOLFE v. KANSAS CITY, a Municipal Corporation, Appellant.

No. 33149.

Supreme Court of Missouri.

Division Two, February 23, 1934.

Appeal from Jackson Circuit Court. — Hon. Jerome Walsh, Special Judge.

AFFIRMED.

George Kingsley and John L. Cosgrove for appellant.

The court erred in giving respondent's Instruction 6 over the objection of defendant. Davidson v. Transit Co., 211 Mo. 320; McNeil v. Cape Girardeau, 153 Mo. App. 427; Palmer v. Railroad, 142 Mo. App. 457; McDonald v. Railroad, 165 Mo. App. 111.

John S. Bates, John F. Cook and Cowgill & Popham for respondent.

(1) The court did not err in giving respondent's Instruction 6, because the instruction in the case at bar did not tell the jury that they could award additional damages for the "impairment, if any, of her power to earn money." Perrigo v. St. Louis, 84 S.W. 32; Steinkamp v. F.B. Chamberlain Co., 294 S.W. 764; Cullar v. Railroad, 84 Mo. App. 346; Plummer v. Milan, 70 Mo. App. 598; Wallis v. Westport, 82 Mo. App. 522; Estes v. Co., 23 S.W. (2d) 197; Kleinlein v. Foskin, 13 S.W. (2d) 648; Buehler v. Ry. Co., 231 S.W. 283; Hebenheimer v. City, 189 S.W. 1180; Strotjost v. Co., 181 S.W. 1084. (2) The court did not commit prejudicial error in giving Instruction 6, for the additional reason that appellant did not offer any instruction limiting plaintiff's right of recovery, but adopted and concurred in the submission. Strotiost v. Co., 181 S.W. 1084; State ex rel. v. Reynolds, 257 Mo. 19, 165 S.W. 729; Buehler v. Glass & Paint Co., 231 S.W. 287; Steinkamo v. F.B. Chamberlain Co., 294 S.W. 764; Kleinlein v. Foskin, 13 S.W. (2d) 658; Jablonowski v. Mfg. Co., 279 S.W. 89; Browning v. Ry., 27 S.W. 647; Robertson v. Railroad, 53 S.W. 1082. (3) Appellant in no event can complain of the action of the trial court in giving plaintiff's Instruction 6, for the reason that it has not filed a complete or sufficient abstract of the record for this court to determine that there was or was not sufficient evidence to support the giving of said instruction, even under appellant's erroneous construction of the Davidson case. Bondurant v. Coal Co., 25 S.W. (2d) 572; Bertke v. Hoffman, 50 S.W. (2d) 108; Good Roads Co. v. Rys. Co., 217 S.W. 859; Shelley v. Pipe Line Corp., 247 S.W. 473; Forsee v. Zenner, 193 S.W. 975; Klene v. Ry. Co., 9 S.W. (2d) 950; Richardson v. Car & Equipment Co., 7 S.W. (2d) 729; Hughes v. Stacy, 7 S.W. (2d) 730; Chronis v. Panagos, 7 S.W. (2d) 734. (4) By conceding liability and by conceding the verdict is not excessive, appellant concedes that the alleged technical error is harmless, and the attack is unavailing, Steinkamp v. F.B. Chamberlain Co., 294 S.W. 764.

COOLEY, C.

This case was originally appealed from the Jackson County Circuit Court to the Kansas City Court of Appeals. The latter court affirmed the judgment, all of the judges concurring, but, deeming its opinion in conflict with that of the Springfield Court of Appeals in McNeil v. City of Cape Girardeau, 153 Mo. App. 424, 134 S.W. 582, certified the case to this court. We approve the reasoning and conclusion of the Kansas City Court of Appeals and adopt its statement of facts and the major part of its opinion, as follows:

"This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

"The facts show that, on December 24, 1928, plaintiff, a married woman, was injured by falling on a sidewalk near Fifteenth and Oakley Streets, in Kansas City, Missouri; that she fell as a result of slipping upon an accumulation of ice and mud which had been deposited upon the walk from an enbankment of earth adjoining; that as a result of the fall plaintiff sustained a multiple fracture of the upper third of the femur of the left leg; that the fracture resulted in a shortening of the leg and an inability to place the foot firmly upon the ground while standing or walking in a natural manner; that she was compelled to use crutches for a period of two years after her fall and that she could only `take a few steps' without the aid of one crutch at the time of the trial; that she had always been able to do her own work and reared two boys, but she was unable to do any of her work after the accident. After her first husband's death, plaintiff, in 1915, married her present husband. Before she was re-married she earned her own living and, for a time while her first husband was alive, she assisted him in his janitor work, doing all of that work at times. Since her re-marriage she has kept house for her husband and family.

"Plaintiff was seriously and permanently injured and there is no complaint by defendant that the verdict is excessive, the sole contention being that the court erred in giving plaintiff's instruction No. Six, which reads as follows:

"`The court instructs the jury that if your verdict is for plaintiff Mrs. Wolfe and against defendant Kansas City you will take into consideration the nature and extent of all injuries which you believe and find from the evidence she sustained as the direct and sole result of falling, if you so find she did fall on December 24, 1928, at the time and place referred to in evidence, whether or not such injuries, if you so find she was so injured, are permanent, all physical pain and mental anguish which you believe from the evidence she has suffered and all physical pain and mental anguish which you believe from the evidence she will with reasonable certainty hereafter suffer as a direct and sole result of her injuries so received in said fall, if you so find she was so injured, the impairment, if any, of her power to earn money which you believe from the evidence to be the direct and sole result of so falling at said time, if so, and if your verdict is for plaintiff it will be in such sum as a whole, stated in one lump sum, as you believe from all the evidence will fairly and reasonably compensate her for all injuries, if any, which you believe from the evidence she so received as a direct and sole result of so falling, if so, on December 24, 1928, at the time and place referred to in the evidence.'

[1] "It is claimed that the instruction is erroneous for the reason that there is no evidence on which to submit the question of impairment of plaintiff's power to earn money. We have recently had the same question before this court. [See Estes v. K.C., C.C. & St. J. Ry. Co., 23 S.W. (2d) 193, 197.] That case involved compensation to be allowed a married woman, who was living at home and doing no work outside thereof. Plaintiff's instruction on the measure of damages submitted, among other things, `You will take into consideration ... all pain and mental anguish which you believe from the evidence she will hereafter suffer, ... and any impairment of her capacity to earn money... .'

"The same criticism was made of that instruction as is made of the one in the case at bar. In answer to the contention made there we said:

"`This criticism raises the question as to whether or not "an impaired capacity to earn money" falls within the scope of permissible damages for "impairment of the capacity to labor." Capacity to labor (physically or mentally) includes the capacity to earn money, and more. Our law is that recovery may be had for an impairment of the capacity to labor, although there may be in fact no actual loss of earnings, and to be deprived of the power to work is a source of injury, "independent of the pecuniary benefits that such labor may confer." [Kleinlein v. Foskin, 321 Mo. 887, 13 S.W. (2d) 648, 658.] We thus see that plaintiff's instruction permitting recovery for impaired capacity to earn money was not as broad as plaintiff was entitled to have it.'

"Defendant admits, in effect, that if what we said in the Estes case is the law, there is no merit in its contention here, but insists that the holding in the Estes case is not good law. In view of this contention we will examine into cases cited by the defendant that were not before us in the Estes case.

"The case of Perrigo v. City of St. Louis, 185 Mo. 274, 84 S.W. 30, involved an instruction very similar to the one in the case at bar. It had to do with the measure of damages suffered by a married woman. In the instruction in the Perrigo case the jury were permitted to take into consideration `impairment of ability, if any, of the plaintiff to work or labor.' As was said in the opinion in that case, l.c. 289:

"`The jury were not authorized by the instruction in the case to allow damages for loss of time or services. They were simply told in determining the extent of her injuries they might take into consideration any diminution of her power to work. To impair the power of any person, whether of body or mind, is an injury to personal right wholly apart from any pecuniary benefit that might be derived from the exercise of the power.'

"It will be noted that the wording of the instruction in the case at bar is not exactly like that in the Perrigo case, for in this case the jury were not told that they might take into consideration the diminution of plaintiff's power to work but her `power to earn money.' The defendant in this case, as did the defendant in the Estes case, contends that there is a radical difference between the power or capacity to work and the power or capacity to earn money and cites several cases that, upon their face, seem to uphold its contention but, we think, are distinguishable from this case.

[2] "There is a distinction between the power or capacity to work and earn money and loss of time or money that one probably will lose in the future on account of physical or mental disability. Loss of time, or what one may reasonably be expected to earn in the future, comes under the head of the amount of loss of time or earnings, or the fruits or gains from the power or capability to work and earn money. The authorities have not always made this distinction plain but, without...