174 Mo. App. 317 | Mo. Ct. App. | 1913
Plaintiff, the husband of Mrs. Elizabeth Esque, brought his action against the defendant street railway company, the petition as amended charging that the defendant, unmindful of its duty to safely carry the wife of plaintiff as a passenger, and in violation of its contract so to do, so carelessly and negligently conducted itself in the premises that “by an unusual, sudden and extraordinary jerk in starting and thereupon instantly stopping” the car upon which plaintiff’s wife was a passenger, the wife,
The answer, after a general denial, pleads contributory negligence on the part of the wife, to which there was a reply.
The trial before the court and a jury resulted in a verdict in favor of plaintiff in the sum of $1200. Interposing a motion for a new trial and excepting to that being overruled, defendant has duly perfected its appeal to this court.
There are only two errors assigned as grounds for reversal: • First, as to an instruction given at the instance of plaintiff on the measure of damages, and, second, as to the exclusion of competent, material and relevant testimony, as it is charged.
Disposing of this last contention first, while the motorman who had been in charge of the car in which plaintiff’s wife was injured, was under examination as a witness for the defendant, he was asked: “Was there anything unusual or extraordinary in the starting or stopping of the car?” This question was objected to by counsel for plaintiff, the objection sus
The instruction of which complaint is made, and on which the first assigned error is based, in enumerating 'the elements of damage which the jury were to
The error complained of in this instruction is the part of the fourth paragraph which we have underlined.
A very careful examination of the testimony in the case fails to show a scintilla of evidence as to the value of plaintiff’s time while caring for his wife. His testimony is that he did work about the house and was up at night and that to have employed a servant he would have been obliged to spend a certain amount of money named. This part of it is fairly covered by the instruction as to the first element of damage, namely, damages suffered by him from the impairment of his wife’s ability to perform domestic services for the family. It cannot be held as covering compensation for his own time spent in attending and caring for his wife.
Counsel for respondent, not claiming that there is any evidence as to the value of the husband’s time, claims that this instruction was correct under the decisions of our Supreme Court in Smith v. City of St. Joseph, 55 Mo. 456; Blair v. Chicago & A. Ry. Co., 89 Mo. 383 (referring to a local citation in this at page 389), 1 S. W. 350; and under Kirkpatrick v. Metro
We find nothing in Smith v. City of St. Joseph, supra, sustaining this contention. It is stated in the opinion that the husband in attendance upon his wife had to neglect all of his business and that if he had not cared for her in person he would have been under the necessity of hiring some one to do it in his stead. In this aspect of the case our Supreme Court says an instruction was justified which told the jury, among other things, that if they found for plaintiff they would assess his damages at such sum as shown by the evidence would compensate him for the expense necessarily incurred in nursing and taking care of his wife for the time she was diseased and disabled on account •of. the injury she had sustained. There is no suggestion made that there was a lack of evidence as to the value of this time. To the contrary, as the jury was directed to the evidence concerning this, it is to be assumed there was such evidence. This is a fair assumption from what Judge Wagner, who wrote the opinion, says to the effect that the only serious objection made to this instruction is that it allows the plaintiff to recover compensation for his services in waiting upon his wife during her illness. He then says that under all the circumstances surrounding the case he thinks the instruction was right. That simply lays down the rule that the husband can recover for his services in a given case in attendance on his wife, but is very far from supporting the proposition that the jury can assess the value of those services in the absence of any evidence whatever as to that value.
We are referred to page 389 as the local citation in Blair v. Chicago & A. Ry. Co., supra. Turning to that page we find no reference whatever to this point, except that Judge Sherwood, in stating the averments in the petition, says that it is stated in the petition, which in the first count sought to set aside and
Kirkpatrick v. Metropolitan St. R. Co., supra, was an action brought by a husband to recover damages alleged to have been sustained by him in consequence of personal injuries suffered by his wife as the result of the negligence of the defendant. It appears that the plaintiff, in- support of his case, introduced evidence to the effect that the husband (plaintiff) conducted a grocery in Kansas City; that the family consisted of the husband, the wife and grown daughter; that their living rooms were over the grocery; that for some time the wife had performed the work of a clerk in the store, in addition to attending to her household duties. It was shown that the reasonable value of her services as clerk was twelve dollars a week but that she voluntarily contributed these services to her husband’s business without compensation. Timely objections were made by the defendant to the introduction of evidence relating to these services in the store and their reasonable value, but the trial judge overruled the objection and in the instruction given to the jury on the measure of damages included as an element of plaintiff’s damage, compensation for the loss of such services. “This,” said Judge Johnson, speaking for the Kansas City Court of Appeals (l. c. 527), “is reversible error.” We hardly think that this can be said to support the claim of counsel for respondent. Furthermore in a dissenting opinion by Judge Ellison, the cause was certified to the Supreme Court. What became of it there we are not advised. But ac
To the contrary, and as showing error in this part of this fourth clause of the instruction, we are referred by counsel for appellant to Morris v. Grand Ave. Ry. Co., 144 Mo. 500, 46 S. W. 170; Cobb v. St. Louis & H. Ry. Co., 149 Mo. 609, 50 S. W. 894; Gibler v. Terminal R. R. Assn., 203 Mo. 208, 101 S. W. 37; Gibney v. St. Louis Transit Co., 204 Mo. 704, 103 S. W. 43.
In the Morris case, supra, commencing at page 505, it is said, referring to cases of this kind, that they are not for exemplary damages, but are “predicated alone upon the idea of compensation for injuries done and losses sustained. In addition to what the jury might award plaintiff for his suffering and physical injuries, they are authorized to compensate him for his pecuniary losses actually sustained, and not those that might or would have occurred but for the interposition of others through kindness or charity.” It is then held that where the services of a physician or other party were rendered through charity, there could be no recovery for their value. It is further held that the instructions in these cases, to be correct, must contemplate compensation for a pecuniary loss, not punishment, and that if plaintiff did not lose anything then there is nothing to compensate. Lee v. Western Union Tel. Co., 51 Mo. App. 375, is cited and quoted approvingly by the Supreme Court in the Morris case, in which ease, referring to the claim for loss of time suffered by the husband in attendance upon his wife, it is said by the Kansas City Court of Appeals: “If this element of damages is allowed (that is for wages), the case is landed in the absurdity that the defendant is allowed to recover twenty-four dollars for lost wages, when his own testimony shows that the wages were not lost but were paid to him by his employer.”
In Cobb v. St. Louis & H. Ry. Co., supra, at page 630, Smith v. Chicago & A. R. Co., 108 Mo. 243, 18
In Gibler v. Terminal R. R. Assn., supra, an instruction was given to the effect that plaintiff was entitled to recover damages for any expenses necessarily incurred by him for medicines, etc., which the jury •might believe from the evidence he had incurred by reason of said injuries and directly caused thereby. It was objected to this instruction that there was no evidence upon which to base it. Our Supreme Court held that damages of this character, that is, by way of compensation for injury, cannot be allowed except upon proof; that the jury should not be permitted to speculate in an effort-to award full' compensation for actual damages suffered.
In Gibney v. St. Louis Transit Co., supra, the instruction authorized recovery by way of damages for any expense necessarily incurred for nursing. Judge Burgess, at page 722, calls attention to the fact that by the evidence it appeared that the only persons who attended plaintiff as nurses were her daughters, members of her family, there being no express contract to pay them for their services. It was contended by the defendant in that case that such services are presumed to have' been rendered gratuitously. Judge Burgess says that as a rule such services involve, no legal liability upon the part of the person for whom rendered and therefore afford no basis for a claim. He quotes approvingly from Voorheis on Damages for Personal Injuries, sec. 18, as saying: “The injured person cannot recover as expenses the value of the services of any one of his family in nursing him, unless there was an express agreement by him to pay therefor. Such nursing involves no legal liability on his part, and therefore affords no basis for a claim against the defendant, as for expenses paid. In the
. The rule we deduct from these cases is that while plaintiff was entitled to recover damages for loss of his wages or earnings or profits-in his business that he sustained in consequence of waiting upon his wife, it is necessary to his right of recovery that he show by evidence in the case the amount of wages, value of time, or of amount of profits in his business which he had lost. For an absolute lack of any evidence of this kind in this case, this clause in the instruction rendered the whole instruction error.
We are told, however, by the learned counsel for respondent, that even in the absence of evidence as to the amount of wages lost and the value of the time given up to the care of his wife, that plaintiff was entitled to recover at least nominal damages and that we may assume that is all that the jury allowed in this case. In support of this proposition, we are cited to Peltier v. City of St. Louis, 237 Mo. 686, 141 S. W. 608. In that ease at page 694, it is said that in the instruction there under consideration, the jury were told, among other things, that they might consider any expense the plaintiff might have incurred for medicines, medical attendance and nursing, etc. Our Supreme Court holds that in the light of the evidence set out they are of the opinion that the objection to the instruction was not well founded; that while it is true that the evidence of plaintiff shows she did not need much medicine and presumably she did not incur much of a debt on that account, the appellate court had no right to presume under that evidence that the jury allower her anything more than a nominal sum therefor, which they had a perfect right to do. We do not think
In the case at bar the jury were distinctly told, in this fourth clause of the instruction, that the plaintiff was entitled to recover compensation for time, if any, which he himself was compelled to spend in attending and caring for his wife. We cannot say that the jury disregarded this or that it failed to influence them in the amount of their verdict, although it is true that the verdict is not very large. But in order to sustain this verdict we would be compelled to hold that the jury had entirely disregarded that clause of the instruction. We cannot hold that they awarded merely nominal damages for this item. If they did disregard the instruction, that was error. But the instruction itself was erroneous, for as before stated there was no evidence of time lost from work, or wages lost, on which to award plaintiff even nominal damages. Murray v. Mo. Pac. Ry. Co., 101 Mo. 236, 13 S. W. 817, is overruled in Cobb v. St. L. & Han. Ry. Co., 149 Mo. 609, l. c. 630, 50 S. W. 849.
We are told that the verdict is for the right party and that even if this instruction was bad in this par
Finally, it is said that this error in the instruction should have been made in the motion for a new trial by an attack on the verdict as excessive. We do not agree to this proposition. The error is in a specific instruction to find on an element of damage, of which there was no proof whatever.
The judgment of the circuit court is reversed and the cause remanded.