*1 аuthority Legislature, and authoriz- is direct from no ordinance It con- ing regulate necessary. not be board traffic was It would authority to direct department was without police tended that authorizing toit do traffic unless an was enacted so. ordinance its fori city performance liable It follows that is not duty, location and maintenance governmental regulate traffic trial sign grant a new proper It was at the intersection. not for the reasons stated. concur, ex- judgment is cause remanded. All affirmed and the Hays, cept J., absent. Rindskopf, Appellant, Robert J. Herman O’Brien v.
Catherine (2d) 1085. Koehler. 70 S. and Carl W. Ambruster One, April 1934. Division
Jones, Hiocker, Sullivan, Gladney Reeder, ><& Web A. Welker and' Willard A. McCaleb Rindskopf; for Herman Lawrence McDaniel of counsel.
Eagleton, Kenwood <&Waechter for Catherine O’Brien. *4 Ambruster. Allen, & J. Mw'saleh for Robert Moser *5 STURGIS, plaintiff injuriеs C. This in an auto personal received mobile collision at Clayton, St. intersection of streets in Louis two County. She1was riding guest as a in an owned automobile by driven Carl defendant Koehler when collided with was run into being conveying flower truck driven one Hilton flowers from a cemetery. funeral to a She was rendered unconscious and knew Subsequently little as to the accident. she ascertained that conducting charge defendant Ambruster was and in the undertaker of the funeral in being connection with which taken the flowers from cemetery, the funeral home to but that the flower truck was owned undertaker, Rindskopf, another and was being operated and driven Hilton in his em the driver ploy for that purpose. brought thereupon Plaintiff this suit to re injuries against except Hilton, cover for her parties all the named against driver, to-wit, Carl Koehler, the owner and riding J. Am- injured, automobile which she Robert was when bruster, charge the undertaker connection with of the funeral against colliding Her operated, which the flower truck colliding flower Rindskopf, man other undertaker who owned the same at the time of operating truck and whose driver was negligence charged was the negligence proven collision. against truck to run it operating driver Hilton in the flower so riding, together with the Koehler automobile which neg specific operating his car. The of Koehler in like charged speed, keep failure to ligence each was to be excessive stop speed, cars, failure or slacken proper other lookout for defendants, Ambruster warning, Each of the etc. sound sought master and therefore re be held liable as Rindskopf, Hilton, their servant negligent acts his or for the sponsible respondeat superior. truck, the doctrine flower driver of the separate evidence, overruled demurrers heard the trial against the case to the defendant, jury and submitted of each thereto *6 any guilty all three. he was of that defendant Koehler denied of ease. The negligence. jury the drops and he out so found funeral, other Rinds- defendants, Ambruster, two the and conductor of deny- furnishing driver, kopf, the while owner of the flower and truck they lost point ing negligent, which the driver Hilton was оn that question largely which of jury, fought the before the the case on Hilton, the the driver of occupied position them master the to jury it question and flower also to truck. That was submitted assessing against Rindskopf, and found for defendant Ambruster words, other damages twenty thousand dollars. plaintiff’s Hilton, negligence the driver jury that it was the found injury, that and plaintiff’s truck, collision and flower that caused the re- truck, Hilton’s was master Rindskopf, the owner of judgment against negligence. From the servant’s sponsible for his defendants, appealed. has discharging him the other judgment only so complains of the appealed but also plaintiff has liability does care about from not discharges Ambruster far as it Rindskopf. The judgment as to court reverses that unless this re- to which is as two undertakers controversy is between real Hilton. of the negligence master for sponsible as appeal On this the defendant Rindskopf contends the trial that should have sustained his demurrer to the evidence and directed h’im, frankly a verdict but admits that the evidence sufficient finding to part warrant on the of the driver of Hilton, truck, says flower but that evidence does a warrant holding master that relation of and servant existed between him principal presented question driver. The this respondeat appeal superior applies is whether 'doctrine of defendant, appealing Rindskopf, under the facts here. controlling if little, any, as dispute
On there is was undertaking defendant Ambruster in the business facts. The question, funeral in еmployed to and conducted the furnish- and was receiving ing equipment pay. all the He have a did not all haul from home where the flowers the funeral flower truck to cemetery body He where the was interred. was held service was requesting Rindskopf, who appliance by supplied that undertaking equipment, and had such engaged in the business also place of the funeral driver thereof to the his flower truck and send belonged undertakers purpose. Both these used for Cooperative Association and was usual voluntary Undertakers’ main- not to own and profitable for undertakers found doubtless business, necessary in their use equipment tain all the demanded, part equip- other, occasion each to order from Chаrges conducting funeral. particular used to be ment furnishing each uniform rate other at a paid made equipment funeral charge. with drivers in undertaker was under No obligation any service, to furnish equipment another but it profitable part to each to the busi- do so and was a substantial Ambruster, charge ness of each. On this occasion defendant *7 this funeral, ordered Rindskopf or hired from the use or service Perhaps flower truck and driver for funeral. on the next day Rindskopf a or would need and from Ambruster limousine order pallbearers’ carriage a would furnish same and Ambruster get charge way. for in the same the same Each undertaker would . price any equipment whether used for the use and driver of his by other undertakers. himself in his or furnishеd to own funerals In the in the case the other one case he would collect direct and other undertaker would collect him. for The driver, Hilton, had been in regular employ Rindskopf defendant eight years at a salary fixed per- and was
fectly familiar with the business and his duties. When Rindskopf re- ceived the order from Ambruster for the use of his flower truck and driver occasion, on this he so informed Hilton and little further direc- tion was made as Hilton knew the location home, of the funeral cemetery, and what work the flower truck perform. would put He the flower truck in reported readiness and place at the of the funeral. Ambruster, the undertaker in charge, gave him no direction, except to through remove the flowers doоr, the side as Hilton’ already knew just what he was to do and how do it. Hilton knew that the custom was for the flower truck to wait till the funderal procession left the way house on cemetery its to the gather, and then up the flowers cemetery take them to the in time arrange to unload and them grave at the party before the funeral arrived. The undertaker in charge would the flower passed notice truck when it pro- the funeral speed regulated and the rate cession would be give so as to pass cemetery flower truck time to and reach the first. No instructions given by by doing were Ambruster or needed Hilton as to this work. He knew what to how do and to do it. The route to be taken suggested party cemetery funeral was poliсe present officer got way. at the time and Hilton this information in that general- He with, ly charge had drove this flower truck connection charge funerals, regular such funeral his employer was whether so, his directed him to do employer occasion, as on this when driving other undertakers. When funerals conducted car in subject was, course, gen- undertakers he funerals of other to their nature of directions and instructions information rather eral than as commands. Rindskopf his telephoned testified that to send flower
Ambruster he designated funeral; place for use truck driver to the reported proper driver time did Rindskopf so; that that and place; merely there and he ascertained that driver was cemetery knew the route be and directed that taken to the through other flowers should removed door. No directions side given or had started on procession needed. When the funeral truck, way, its the flower inj Hilton loaded flowers driver truck, cemetery, flower due to the started to the crossing negligence, driver's street with the automobile collided at a riding being Koehler. plaintiff in which driven causing rapid his The the accident was too driver’s crossing. only driving street instruction reckless at the driving employer, Rinds- as had ever received he, Rindskopf, careful him to be kopf, cautioned on other occasions damage caused; and that this flower truck any liable for would be twenty- one, it more than he had told him never drive new was that on per fivе hour. evidence .this miles thirty-five forty hour. driving per miles occasion he was Am- but not to Rindskopf, reported the accident to driver Hilton *8 car. damages to his own Rindskopf done bruster, paid for the and were de- flowers soon as thei was that as The custom such eases more, cemetery, driver, without at the disposed and of livered un- Rindskopf, employer, to office of his with the truck returned also The evidence other work. by him do to previously less directed to experienced driver and expected competent a is that Ambruster any cause concluded yet if for truck, he had accompany, the flower to do proper person or not a competent the driver was not he job,” but off the him and the truck hаve “fired work, could he or sub- general employment his discharged him from have could not trip. particular even for place driver in his another stituted general the owner complain to to cases was such of redress method notify such owner equipment such or other flower truck him. done to in work objectionable driver send the to liability of in this of Am case either defendant Rindskopf superior on the respondeat bruster or is based doctrine of applied as master and servant. pre'sent to Neither undertaker was personal negligence accident and there was no of either. The purely solely if that of driver Hilton either of the undertakers is held liable it is he because sustained the Hilton. relation of master this servant Hilton’s fast and reckless driving implied, express, if not violation of direction wishes of both undertakers. appeal only
On this Rindskopf defendant is interested our holding Hilton, driver, servant, was not his is only holding that, interested Rindskopf our if is not because liable relation, of that the defendant Ambruster liable. No is one contends that Hilton was not the or servant one the other and we are not he asked hold that was the servant of both.
1242
Tbe agree all is authorities relation master and servant that the contract, based on express implied, or relation exists and when that damages injuries suffering the master any is liable in person third from the negligent or true tortious act his servant. And this is although in contrary intent, act wishes and is L., structions R. p. of the master. C. sec. The basis [18 255.] superior” expressed phrase “respondeat this rule Latin by “qid per expressed by phrase, the rule alium another Latin facit through per (18 thing by se” R. or 786), L. he does C. who faeit through another, himself; thing another,does it if so does Dolph his own. v. servant, negligently, negligence is his [Flori (Mo.), 192 S. W. 951.] n In this general case the contract employment was between Rindskopf Hilton, the driver, and Rindskopf paid ' wages. all his Hilton only did him work'as Rindskopf directed to do. But the law is that with Hilton’s consent, express implied, or Rindskopf, his employer, could so transfer or surrender the service of Hilton to another as to make servant, Hilton the for the time particular or for' piece work, other, servant of such who negligence. would liable his become R. C. L., sec. 244, p. [18 784.] ‘‘A may servant be loaned hired by special master for some pur pose so as become, service, to that the servant of the party to whom he is or hired, impose loaned and to on the latter the usual lia bilities of a master.” Corpus Juris, 1274, citing Boroughf v. (Mo. App.), 881, 883, Schmidt S. W. and cases from states. many holding in the case last cited is: “While it may is true that one inbe another, service and, nevertheless, respect with particular work, may be the another, may servant of who become acts, yet escape liable for his liability original- master must *9 of performance surrender full control the servant in the of said partially work. The fact that the servant is under the of control the person original third will any wrongful not relеase the master for act by ordinary done the servant in-the employment. (Cases course of his cited.)” responsible of is the for who master and therefore the act of the is servant said to be determinable- who right the time has causing the to control the acts servant of the injury. right control, the control, of of rather than the fact governs. question is, right has who the of control direction engaged in, and whose work the servant pays is rather than who for thereby. it R. 39 or who is benefited C. L. In Corpus [18 784.] Juris, 1274, 1462, liability said: “The of section this is test for the "particular servant whether in the which the acts of the is- service requested engaged perform is liable to servant or to continues original subject control his master or becomes direction аnd the requests hired, lent or or who person to whom he is the to that of
1243 is which control bis is not much actual exercise services. It the so liability escape To regarded right the exercise such control. to the servant the original resign full control the master must under partially is servant that the being, time sufficient Anderson, 212 v.Co. Oil person.” the control of a third [Standard S. (Mo.), 259 Boroughf W. 480; S. v. Schmidt 215, U. 53 L. Ed. 881, 883.] general
Where the employee person, using one the em ployer’s .appliances, doing is the work of or another under arrangement general employer contract or between the of the servant person doing way such other for the of such work that means, gives person fact that the other information and directions to the sеrvant as to details of the work or manner of doing general it does not employer this servant of the make Juris, 1275, 39 person Corpus servant of such in that work. other quotation therefrom, says: necessary after supra, “It further is control, distinguish to between mere authoritative direction suggestions necessary as to cooperation details or where work part larger operation. employer is of a A servant of one furnished per does not the work become servant of another for- whom is servant, merely points formed because the work to the the latter out gives gives signals activity, him calling or him the service into or: doing it.” directions as to the work and the manner details (Mo.), 900; Dolph v. Bryant, 596, 273 201 W. Flori v. Mo. S. [Scherer 192 “It Bryant, In said: suрra, S. W. Scherer v. 949.] principal master servant relationship is said the of the and! test ‘distinguish necessary carefully is control. In a case is like this it suggestion as and mere between authoritative and control direction is work necessary cooperation, furnished details or the where Anderson, 212 U. v. part larger operation.’ Oil Co. of a [Standard case it l, 222, 254, S. 53 L. Ed. In the same Sup. c. Ct. 480.] general employment pointed one lifted out that is not out of mere fact that and set down service of another work indicate other is authorized master the. calling in servant give signals done furnish or or to information W. 657, 31 S. Ry. Co., 130 Mo. activity. In Wabash ITurlbut v. Rail v. case, Coggin as in 1051, holding is of like effect. any no evidence road, Rep. 62 Ga. l. Am. there is c. right interfere hаd a engineers one than the ‘interfered other engine. steam, manipulating or with application with of the craftsman, skilled engineer expert These were for the as an. —as. ex engine handling . . . actual his business. The. *10 ” driver). same To the engineer’ (in this the clusively case for the Dolph v. in Flori circumstances, ruling is the effect, similar under 192 W. 249. (Mo.), S.
1244
When “white familiarly we come to termed consider what are mule” cases, will cases before same, we older find the least gas-driven vehicles, cars the head place took under of horse-drawn says: 1277, Juris, “driver these, Corpus and team” 39 cases. As to general “Applying and rule, a driver team to one who furnishes another specified for for a or for a trip the latter’s use a or for time resulting particular from injuries purpose is for nevertheless liable the third performing acts of the such services for servant while person, provided vested exclusive control the driver is not question hirer. liability The test of whether em- turns on the Liability ployer or the hirer driver. controls the movements general with employer of the for the the driver furnished acts of given the driver team is affected by the fact that directions are what shall given as to go, as to when and where that directions are given hurry carried, are the driver to or or that directions time, the work that take driver also assisted or that the Boroughf v. doing In for which used.” hirer was the team was 881, and for (Mo.), 259 W. owned a truck Schmidt S. mer- certain party haul pay and driver to anothеr furnished it a injured doing negligently driver struck chandise. this the has been presented here plaintiff. “The The court said: United England and the by appellate decided courts frequently driving In these cases it cases. carriage and States in the so-called lets out his a master almost held where universally has been- by which he agreement horses, under an carriage a driver and with injury an thereof, he is liable pay is to receive the use manage- in the of the caused person a third driver is hiring, when the during period team ment of the drive.” he shall when and where as to obeying of the hirer the orders Many cited. cases are
No case has been frequently more proposition cited than v. 212 Anderson, Standard Oil Co. S. 480. L. Ed. That U. high general quoted principles formulated in Simmons Murray, v. 209 Mo. App. 248, applying S. W. 1012. In particular these rules to the facts the court said when person one implements appliances furnished another operate person same, “he did not furnish them but furnished person. the work did” they to such other “That work was done defendant, price, work, through for a as its own its own servant, control,” instrumentalities under its own notwithstand- ing obeyed signals given him servant and directions in the ‘ ‘ simplest ease, work. The said: The court further .course decided, that which was was where horses and driver were earliest liveryman. hirer, though suggests In such furnished eases the sense, it, still journey, and, in a certain directs the course of the does responsible neg- driver, for his not become the master of the
1245 ligenee, specifically unless be brings directs or the about (Cases cited.)” act. Towle-, And further: “The case of Driscoll v. 181 416, point Mass. inis In here. that case defendant was en- the gaged in general wagon horse, teaming He business. furnished and driver to Light Company. the Boston Electric The driver re- ported to light the] electric directions as to company and received go company, what to do and where from but employee to an of that night wagon returned the horse and the to defendant’s stable carry an pay traveling received from out the defendant. While to company negligently injured plain- order received from the the tiff, brought injuries, alleging who that an action to recover for the the was driver was the It was held there defendant’s servant. that finding which driver jury evidence warrant the that the would opinion continued to the defendant’s It was said the servant. Holmes): court, (now by Holmes, Mr. the delivered C. J. Justice to pointed the work out ‘But mere fact that a is sent to do servant bargain by him master does not person who has made a with his servant; necessary take person’s him that is to make that more than has which he only him out of the contract relation established subject sovereign, voluntary him a a new made to make —as . . '. In in the old books. master sometimes called light com- electric ease the contract between the defendant fairly have been found pany terms, stated in could was not regular do his ordinary an the defendant to to have been contract probability it way. In all business his servants the common employs party nothing course, in eases who more. Of such sense controls done and the contractor indicates the work to be present. contractor, if he were servant, as he would control subject is not person who receives such orders But the his gives own business in party does his of the who them. He orders him simply point'out way, receives and the which he own orders is'not to do. 'There his master has undertaken the work which he or subjection of one generality degree intimacy and make identify and to necessary two in order to which is the other employed act of the employer under the fiction that liable ” is his act.’ S. Co., W. App. 211 Mo. Transfer Burke v. Shaw employed An undertaker facts. in its essential this case like own and equipment his have sufficient funeral did not conduct a church to convey party from help the funeral a cab to needed transfer com their homes. then to cemetery need persons drivers to cabs and for hire and furnished pany owned a cab order furnished undertaker’s ing and on the service business understood The driver this occasion. driver persons’ however, certain did, direct He direction. needed little get in the cab and them as the driver understood that he was to take part respective cemetery party funeral and then their homes, getting doing this passengers. that information from injured passengers, who negligent driving one of company. suеd the held the transfer Appeals transfer The Court of *12 company, the driver to the which owned the cab and furnished it and undertaker, negligence. liable as master for driver’s This certiorari, 384, 250 W. (Mo.), State ex v. Trimble held rel. S. harmony only conflict, no “is there was but that the decision 294 Schield, v. citing Holloway with court,” the decisions of 201 512, 596, 604, Bryant, Mo. 243 W. 273 Mo. 163, S. v. and Scherer S. W. 900.
In Schmedes Deffaa,
v.
1247 from team, but is hiring entity composed of the two. While acquires the hirer authority entity dominion or over the designate the work that doing shall be done and direct the manner of it, acquires authority no driven, to direct how the team shall managed, or cared for, nor can he entity by separating divide driver from the team. may dispense He with the services the en- tity driver and the discharge team —but he cannot the driver —the and substitute another. . . . says, Hence the owner ‘I effect: my will not hire team stranger, to be driven I but will hire my team with a my driver of choosing, own I repose one in whom trust and confidence. discharge You shall not him and substitute an- right other. That is I entirely reserve.’ possible It is and con- sistent, pointed Towle, out v. Driscoll Mass. E.N. 922, for the be the servant of per- the hirer in the formance the work and remain the servant of the owner in the driving, caring for, details of managing team.” We determine (Mo. neеd not whether Grothmann v. Hermann *13 241 App.), 461, S. W. in though is conflict with our here, conclusion facts, much it negligence like on the as the of the driver of the of one causing plaintiff’s the hired motor cars in that case injury did not-oc- in part cur connection with and as operating of the car owned the hirer, negligent of put and which the hirer the charge, driver in shutting in negligently the door of another hired ear.
Many involving question of cases the the of who is the master negligent say question of the servant is the often one for -the jury, when in dispute legiti and so it is the vital facts are or different may be drawn If here, mate inferences therefrom. such is the case appealing defendant, Rindskopf, had' jury the has the benefit of a But, an drawn trial on that issue under instruсtion himself. said, dispute essential facts here we have are not as we only inference therefrom is that think the allowable responsible negligence Rindskopf was master and for the of the negligence Hilton. Whether this driver was and his driver injury only plaintiff’s jury was the here for the caused determine. even if it case, view of the be true that one or
Under this more jury assumed that defendant Rindskopf instructions to negligent driver, master to the relation of such would not sustained of applicable a correct statement law. error, but is The de- be have been sustained should as to defendant to the evidence murrer him, but, jury this, directed for as the and a verdict did Ambruster giving any And it is also true that the of in- same. the result harmless to Ambruster is error. Even if he' favorаble struction too . Rindskopf respondeat- under the doctrine of jointly liable with was joint and each liable severally tort-feasors they superior, 1248
whole injury jointly. as well com Appellant Rindskopf as cannot plain discharge any error of the Ambruster reason of Nafziger Baking Co., court or. 41 v. 328 Mo. otherwise. [Barr (2d) 559, 563; S. 328 Mfg. Co., Neal & Co. Mo. W. v. Curtis 41 S. (2d) 543, giving of No. on behalf W. Instruction 553.] defendant Ambruster was appellant not error of which this can complain, plaintiff-appellant so. does not do though Rindskopf, conceding
Defendant now that the evidence was finding sufficient to warrant a that the guilty Hilton was negligence resulting plaintiff’s injury, to; for which ishe master, yet liable as was entitled to a held submission the driver’s A proper difficulty instructions. material is herе presented plaintiff in that and was chose to allowed to submit her any jury case to the instructions on her part without as to law jury try of the case in accordance with it— which was sworn to outlining telling no to be tried jury instructions issues facts, plaintiff, if jury what found for would warrant convict driver, ing responsible negligence. this truck his master of jury, having petition answers, read the without even heard left compass without chart or as to the issues and the law of the meager except given by aid defendants’ instructions. I case trying protest again However, this as to method cases. no must objections exceptions preserved respect were made or the ease as it is. we must consider give refusing error Rindskopf asserts .defendant modifying asked him and in giving No.
Instruction any, if Obviously error, is in modified. it as modification. placed jury as asked before the the fact if The instruction riding in which car the -flowertruck driven Koehler’s crossing servant, by Hilton, Rindskopf’s approached the where the *14 approximately as to reach same at so the the same occurred collision yielded right way the have of time, then Koehler should to the (cid:127) thereof, right Hilton, had a and that the driver to as truck, flower driving his accordingly, do this and conduct would that Koehler sume doing so, was not in that Koehler which event he became aware until ’ by the be measured humanitarian rule. negligence would his inserting proviso the that instruction the modified this intersection, driving was,., approaching the “in in a driver-Hilton negligence.” an without Was this erroneous and manner careful Granting that Hilton and flower not. the We think modification? rightly proceed way theory, could that right of had the truck going a at a in reckless doing so if he was yet manner — giving warning control, busy no at a under his car without speed, yield Koehler and his car to of the failure not crossing, etc., would negligence? contributory than to more no way amount of right the course, Of when the point flower truck reached a where the humani- began tarian rule operate, contributory negli- to that blots out the gence Koehler, any (and of if jury evidently found there was not any), appellant Rindskopf concedes; plaintiff, as a but as this guest began. car, negligence in contributory Koehler’s never Koehler’s guest, in- imputed plaintiff. could not be to his this might struction wrong would have been without this modification. It well have been a refused as whole.
Appellant says Bindskopf further it was use the word error to “negligence” characterizing in modification of the instruction as defining the conduct of the flower truck without it to jury setting which, found, facts if without out the would just negligence. disposes of con constitute What we have said this duty presenting tention. It was defendant’s in this instruction to correctly, refusing if court, do the trial incorrect so instead good outright, attempted one to correct it and the correction was went, complain. it in clear position far as defendant is no It was doing really ly duty defendant’s to assist the court what was duty making complеte, specific, instruction own more definite, thought respect. if he deficient in correction that judgment insists
The defendant the verdict require this $20,000 in is excessive as to interference this case so nothing is with for a new trial. There connected court and calls curing verdict, prevents which our the excessiveness the case her remittitur, to enter a be, by permitting plaintiff if it not, considering granting, a new trial. option, price as the require require this court to excessive as whether the verdict so entering remittitur, or suffer verdict to reduce the that we cannot substitute our keep in mind the rule trial, we new only jury of the verdict. as to the amount views within bounds the verdict is amount of is whether the ' proven. While injuries proportionate to the reasonably reason matter; allow we cannot discretion jury a giving sound to stand verdicts arbitrarily in matter allow jury act No are injustice two cases to the defendant. palpable which work peculiar on its own every case must stand respect and in this alike damages measuring general rules for has fixed certain The law facts. given jury to the are these rules injury actions personal it, see as best of-instructions, court must and the form damages and regard such measure jury gives due can, that through otherwise, mistake or given palpably, amount does injuries inflicted and facts as When the such rules. disregard identical, be a there should similar, though never *15 are losses sustained judgments verdicts and óf the amount uniformity as to reasonable on altogether, -valuelesseven not are Precedents cases. various in oil, amount of wbicli verdicts we have to stand caused allowed to be reduced, question but is should be whenever this consulted presented. On variety account of facts, the infinite often necessarily speculative and opinion, precedents mere matters of are merely most helpful. always, however, safeguard There given every plaintiff, to compelled accept ishe to the re- verdict, duction may saying this, of his a have new trial. being we are not hardship placed plaintiff unaware of the a compelled to exercise an option. n '" parties given Each reasonably fair have a statement beаring facts damages on the and evi the amount of introduced) question, dence on this all plaintiff, presents unusually no contradictions. evidence seems fair and medical Plaintiff, injury, nurse, candid. at the time of her was a trained un years married, fifty-eight good age, health, earning per $65' and month plus year her room and board. trial was more than a though her injury, injuries, necessarily after that the so results of her fairly speculative, somewhat developed. well Plaintiff suffered substantially following injuries: unconscious, She was rendered injuries hospital taken to a remained there about month. Her mostly right wrere arm, though about the head and re shoulder ceiving bleeding other serious bruises. She was some from mouth days. right ear and this continued for some drum еar perforated, resulting permanent partial hearing to loss seventy-five per the extent of cent of normal. ear about The other injured hearing was not and the was normal in that ear. There was injury a fracture of the collar bone with severe as it nerves spine, causing secondary and a comes off the nervousness neurosis. uncertain as- whether The doctors were this condition would be permanent. injury right an There was shoulder which neces operation, moderately severe, up break sitated an adhesions. This injury permanent right shoulder, limitation of the use of the caused hand, with considerable loss of use of arm arm the whole her arm hand. She could not raise above horizontal and there was fifty and use below per cent loss' movement horizontal. There injury causing the soft structures of the back pain was severe discomfort, persisted at the time of which still the trial. Considerable inability sleep resulted with soundly nervousness before the ac hospital for Plaintiff was- confined to the four weeks. cident. about hospital thereafter, operation twice once for the She returned to operation an another -time for on her and at nose to her shoulder hearing. aiding hospital The total her medical purpose $775. While the record expenses amounted to shows-.that direct, nurse, as a there is-no earning per month evidence as $65 though wages, such is inferable from the her facts. loss *16 City Rindskopf Kansas Aрpellant cites the case of Crockett v. ques Rys. (Mo.), 243 directly S. W. 902, point as Co. injuries similarity in the in this damages, and there is much tion injuries in this points case. Plaintiff out there are and that that case, to-wit, pleurisy “fibrinous present in the Crockett ease not —a injury permanent injury painful brain —a and severe remedy hopes back,” operation, second the nose plaintiff hearing; Crockett case the ing also that the defect earnings, the loss of was a married woman and there was not are about hospital bills the two cases ease. The medical and this judgment down the Crockett cut the same. In the ease the same. We are not able $10,000 insists we and defendant do greater in this case. say injuries and are not some that the losses Packing (Mo.), Co. Independent St. Louis Plaintiff cites Lewis v. excessive, $17,000 (2d) court said was not 244, 3 S. W. where the quite greater than in injuries different but think the we Taylor v. Missouri Pac. cited cases are ease. Plaintiff other $25,000 115, 279 S. W. an Co., 311 Mo. where award Railroad Co., Enameling Stamping Margulis & v. National allowed, and $27,500 approved, (2d) 1049, where S. 324 Mo. W. earnings earning power in injuries suffering loss of hardly what is comparable to greater are much eases were those shown here. $7,500 file a if will remittitur is that Our conclusion judgment will judgment, a new the date of case as of in this date; the ease will be $12,500 otherwise, as of that be entered for Ferguson and so new trial. It is ordered. reversed remanded for GC., concur. Hyde, The foregoingopinion Sturgis, C., adopted
PER Hays, judges concur, except J., All the of the court. opinion as the absent.