Lemoine v. Cook

36 Mo. App. 193 | Mo. Ct. App. | 1889

Rombauer, P. J.,

delivered the opinion of the court.

The defendant was, at the date of the grievance hereinafter mentioned, the owner and keeper of a vicious and ferocious dog, who bit the plaintiff, on the public highway, April 19, 1888. The plaintiff thereupon instituted suit for the recovery of damages caused to him May 14, 1888, and recovered judgment for four hundred dollars, October 13, 1888.

The only error properly saved by motion for new trial and now assigned by the appealing defendant is, that under the pleadings in the case, the court misdirected the jury on the question of damages, and that the verdict is excessive.

The petition states that, owing to the bite of the dog, the plaintiff suffered, and still suffers, great pain and anguish of body and mind, that by reason of said wounds and injuries, the said plaintiff has been under the care of a physician ever since said nineteenth dajr of April, 1888, and has been compelled to expend large sums of money for medicines and medical treatment, to-wit: The sum of one hundred dollars, and he has been unable to perform his duties as engineer at his place of employment, thereby losing a large amount of time; that, by reason of said wounds and injuries, plaintiff will be permanently injured and disfigured, and that said wounds are still open and unhealed and causing plaintiff great pain and anxiety of body and mind. The petition concludes with a prayer for three thousand dollars damages.

Upon the trial of the cause the plaintiff gave evidence tending to show that the bite was severe and painful, and the wound at one time threatening to cause erysipelas or gangrene. That the wound was dressed by a physician one hundred and sixty times, and that one hundred dollars was a very reasonable charge for such medical aid. That he earned from seventy to seventy-five dollars per month, and lost three months’ wages owing to his inability to attend to work. The defendant objected to the evidence of any loss of wages or medical attendance after the date of the institution of this suit, and, upon his objection being disregarded, excepted, but as this exception is not preserved by motion for nqw trial, it is not before us.

The court, in its instruction to the jury, failed to limit plaintiff’s right of recovery, to losses sustained and expenses incurred prior to the institution of this suit, to which ruling the defendant excepted and saved his exceptions, by motion for new trial. As above stated, this exception and the' excess in the verdict, are the only complaints properly before us.

That instructions should conform to the pleadings, is a rudimental principle. The practice of making one case by the pleadings, and another by the instructions, has frequenly been condemned. Moffatt v. Conklin, 35 Mo. 453; Ely v. Railroad, 77 Mo. 37; Melvin v. Railroad, 89 Mo. 107. If the court, in the present case, had violated this rule, its judgment would necessarily have to be reversed.

The reason of the rule is that the pleadings determine what has been adjudged in a certain case. No one is to be called iipon by his adversary’s pleadings to defend one cause of action, and then upon the trial be confronted by another and different one ; nor be challenged to repel a claim for specific damages, and then be called upon, when unprepared to do so, to meet another and different claim for damages. The present case, however, is not affected by the rule.

A personal injury from a single wrongful act is an entirety and affords ground for one action only. In such action, the plaintiff may recover all damages suffered not only to the day of trial, but all that he may suffer with reasonable certainty in the future, as a direct result of the wrongful act. 3 Suth. Dam. 722; Russell v. Columbia, 74 Mo. 488. Such damages are mostly general in their nature, as naturally flowing from the wrongful act.

The plaintiff’s petition expressly states that he still suffers from the wound, and that it is still open and unhealed. The jury, under the allegations of the petition, would have been warranted to award him damages for the reasonably certain suffering, expenses, and loss of employment resulting to him from this injury even after the trial. It was held erroneous in McLaughlin v. City of Corry, 76 Penn. St. 109, under a petition substantially the same in its phraseology as the one before us, to refuse an instruction authorizing the jury to assess damages for sufferings which the plaintiff was likely to endure, and pecuniary losses which he was likely to sustain even after the day of trial. Hence, we are not warranted to find that the court committed error prejudicial to the defendant in not limiting the plaintiff’s damages to losses and sufferings caused to him by the wrongful act up to the date of the institution of the suit.

The defendant offered no evidence, whatever, bearing on the question of the plaintiff’s damages. The plaintiff offered uncontroverted evidence of a loss. of two hundred and ten dollars in wages, and one hundred dollars in medical expenses, and also, as the bill of exceptions shows, other testimony tending to establish the issues in his behalf. As the verdict, was only for four hundred dollars, it will be seen that of the amount awarded, only ninety dollars are left for the bodily and mental suffering of the plaintiff, from a wound shown to be dangerous and painful, and for all other damages covered by the general statement above. This disposes of the defendant’s complaint that the verdict is excessive.

All the judges concurring, the judgment is affirmed.