176 Mo. App. 423 | Mo. Ct. App. | 1913
This is a suit for damages accrued on the grounds of negligence. Plaintiff recovered and defendant prosecutes the appeal.
Three points are made for a reversal of the judgment : First, that the court authorized a recovery as for the loss of time when no averment touching that matter appears in the petition; and, second, without direct proof of the value of such loss—that is, earning capacity; and, third, because the verdict is excessive.
It appears that plaintiff was injured through the negligence of defendant in permitting its street car to run upon him in a public thoroughfare in St. Louis. As a result of the collision, one of plaintiff’s' ribs was broken and severe and permanent injuries were inflicted upon his shoulder.
‘ ‘ The court instructs you that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and since receiving the injuries for which he sues (as shown by the evidence), Ms loss of time, if any, and his physical and mental anguish, if any suffered by him on account of his injuries at the time of and since such injuries (as shown by the evidence) and such damages, if any, as you may, from the evidence, find reasonably certain he will suffer in the future by reason of his injuries, and you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $10,000.” (The italics are our own and are employed to the end of inviting attention to those words later in the opinion.)
After describing the injuries, the petition says they are permanent, and avers, too, “that plaintiff was confined to his bed for a long time-” on account of such injuries. But there is no direct averment that plaintiff lost any time on account of them and no claim is laid for compensation on the score of past lost time. There is, however, an express averment in the petition that plaintiff’s future earning capacity has been impaired so as to prevent him from earning a livelihood in the future. Under this latter averment, it was certainly competent, and so much is conceded, for plaintiff to prove and recover on account of future loss of earnings. But it is said the court erred in authorizing a recovery as for, to quote from the instruction, “his loss of time,” for it would seem such recovery included compensation for loss of time in the past which was not claimed in the petition. Touching Ibis matter and that phase of it concerning the omitted averment in the petition, it may be said that defendant, without objection on its part, sat by and permitted
In so far as the right to recover as for loss of. earnings in the future is concerned, the petition expressly lays a claim for that, and, of course, the evidence tending to prove it was properly received. By reference to the language of the instruction above set out, it will appear that it does not expressly direct the jury to consider plaintiff’s loss of time in the past, but on the contrary authorizes a recovery alone for “his loss of time.” See the words italicized in the instruction. But, of course, this authority to consider plaintiff’s loss of time as an element of damages is to be viewed as though the jury understood it to authorize a recovery for the time lost in the past as well as diminished earning power in the future. However this may be, the evidence of time lost as well as that tend
But it is argued, though evidence was received as to the loss of time in the past and diminished earning power for the future, the court should not have submitted these elements of .recovery to the jury, for the reason no evidence was introduced tending to prove the value of plaintiff’s time. It is true nothing appears as to the amount plaintiff earned when employed, and if the case presented the feature of one following some particular calling, touching the nature, character and compensation of which the jury were wholly unadvised, the argument would inhere with much force. It is not so, however, when it appears, as here, that the plaintiff’s calling is one of a character and kind which, together with the usual compensation therefor, is well known and understood by all fairly intelligent men in the community. In such cases, it is said the jurors in the box know something of the value of the time lost and the earning power diminished as well as the witnesses called to give testimony thereon. That plaintiff was employed at the time of his injury, the record reveals beyond question. Therefore, that his past loss of time was of value to him sufficiently, appears. That his earning power was diminished for the future is not questioned, for the evidence amply reveals it, and then, too, it is said his injuries to the shoulder are permanent.
While the amount of wages he received is not shown in the evidence, it appears that he was engaged in the capacity of a common laborer for a manufacturing company and had charge of hauling from the factory and loading on the cars ice cream cabinets for shipment. After his injury he engaged to work for a contractor in laying concrete, but was unable, because
The jurors as well as others possess information touching this question and they know that the loss of time by and the diminished earning capacity of one engaged in common labor possesses some value for which a recovery should be allowed. Though it be that they are not informed as to the precise amount of the loss to be compensated and that a verdict therefor is not authorized without evidence tending to prove the value of the loss, it is certain that enough appears from the facts of employment, the injury and the loss of time as a consequence thereof to authorize a nominal1 recovery on that account. [See Mabrey v. Gravel Road Co., 92 Mo. App. 596; Jennings v. Appleman, 159; Mo. App. 12, 139 S. W. 817; Loe v. C. R. I. & P. R. Co., 57 Mo. App. 350.] Therefore, the plaintiff’s instruction authorizing a recovery for “Ms loss of time” is not to be condemned as without any warrant whatever in the evidence. It appears to be well enough in its general scope, but it may be defendant was entitled to have the recovery on the score of loss of time and diminished earning capacity limited to that of nominal damages only. Though such be true, the judgment should not be reversed on account of plaintiff’s instruction, for it does not appear that defendant made any request whatever toward limiting the recovery on this account to nominal damages. [See Browning v. Wabash, etc., Ry. Co., 124 Mo. 55, 27 S. W. 644. See, also, Mabrey v. Gravel Road Co., 92 Mo. App. 596.]
The judgment should he affirmed. It is so ordered.
