141 Mo. App. 162 | Mo. Ct. App. | 1910
Appellant presents a motion to certify this cause to the Supreme Court on the ground that, as the amount in dispute exclusive of costs exceeds the sum of forty-five hundred dollars, we have no jurisdiction. On the. 14th day of April, 1906, the jury returned a verdict in favor of plaintiff in the sum of fifty-five hundred dollars. April 17th, defendant filed its motions for a new trial and in arrest of judgment which were continued until the June term of the circuit court when they were overruled on the 9th day of June. June 12th, defendant filed a motion to set aside the order of the court overruling the motions. July 5th, plaintiff filed a remittitur as follows: “Comes now plaintiff to said cause and remits one thousand dollars ($1000) of the verdict rendered and consents and agrees that judgment shall be rendered on the verdict for forty-five hundred dollars ($4500).” July 14th, the court made the following order: “Defendant’s motion to set aside order overruling motion for new trial, is by the court sustained, and, it appearing to the court a remittitur of $1000 from the verdict having been made, said motion for a new trial is overruled, and excepted to by defendant.” September 8th, defendant filed bond and affidavit for appeal and asked that the cause be sent to the Supreme Court, but, instead, the appeal was allowed to this court. It is the contention of defendant that, since interest in the sum of $132 had accrued on the judgment at the time the remittitur was entered, the amount in
The statute fixing the jurisdiction of the courts of appeal is as follows: “The St. Louis Court of Appeals and the Kansas City Court of Appeals shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of forty-five hundred dollars.” (Laws of 1901, p. 107). Without taking interest on the judgment into account, the sum remitted reduced the amount in dispute to $4500 — a sum within our jurisdiction, and we think defendant is in error in saying that if it “had concluded to pay the judgment less the remittitur on the day the remittitur was entered and the motion for new trial overruled, it would have been compelled to pay $4,682.” It sufficiently answers this argument to refer to the rule well settled in this State that the effect of the filing of a remittitur is to nullify the judgment and to require the court to enter a new judgment for the amount of the verdict less the sum remitted. [Schilling v. Spick, 26 Mo. 489; Haynes v. The Town of Trenton, 108 Mo. 123; Dawson v. Waldheim, 81 Mo. App. 636; Dawson v. Waldheim, 89 Mo. App. 245.] The judgment from which the order of appeal was allowed was that rendered on the 14th of July, the day the re-mittitur was entered and the motions for new trial and in arrest overruled. Had defendant elected to pay the judgment on that day, it could not have been compelled to pay more than $4,500 in satisfaction thereof,- and, this being the amount in dispute, it follows that the cause falls within the jurisdiction of this court.
The motion to certify to the Supreme Court is overruled.
This is an action brought by a husband to recover damages resulting to him from personal injuries sustained by his wife in consequence of the negligence of defendant. The injury of which complaint is made occurred in the morning of October 9, 1904. Plaintiff,
“The said wife of plaintiff was greatly and permanently injured by being thrown violently from her seat in one of defendant’s cars and being forcibly and violently thrown against some portion of the said car or its furnishings whereby the nose of Annie V. Partello was bruised and broken just below the forehead and permanently disfigured; also by being struck in the side and lower portion of her abdomen with great force and violence, thereby greatly bruising and mashing her said side and lower portion of her body and resulting in a displacement of the womb, by reason whereof the said Annie V. Partello suffered for a long period of time and does now suffer great and excruciating physical pain and mental anguish, and thereby causing a permanent injury to the womb' and a permanent impairment of her menstrual functions. . . . that said injuries so inflicted upon the said Annie V. Partello by reason of the negligence of the defendant, its agents and servants as aforesaid, and by reason of the said blow to her side and lower portion of the abdomen as aforesaid hey nerv-*167 oils system has been greatly and permanently impaired and shattered and she has suffered and will continue to suffer great physical pain and mental anguish on account thereof. . . . That prior to the injuries complained of the said wife of plaintiff was a strong, healthy woman, capable of performing all of her household duties at home, but that on account of said injuries, which are permanent and lasting in character and effect, and which were caused as aforesaid by the carelessness and negligence of defendant, she has become a weak, infirm and incurable invalid and has since the happening of the said injuries been confined almost constantly to her bed, and incapable of properly attending to any of her household duties or to the care of herself and family. That by reason of said injuries to his wife, plaintiff has been deprived of her society and services and has been put to great expense in procuring medicines, medical, hospital and surgical attention, including the services of a trained nurse, to-wit, to the amount of five hundred dollars ($500), and that the plaintiff will on account of the permanency of said injuries as aforesaid be compelled to expend large sums in the future for said purposes and will be compelled for a long period of time to keep a trained nurse constantly in attendance upon his said wife.”
In the answer, defendant admitted that plaintiff’s wife was a passenger on its train as alleged and was injured in an accident to the train, but denies “that she was injured to the extent or in the manner in said petition alleged, and denies that said accident was caused by any negligence or carelessness on the part of defendant.”
It is conceded, in effect, that the evidence introduced by plaintiff was sufficient to take the case to the jury on the issue of defendant’s negligence and that that issue was properly submitted in the instructions given. The judgment is attacked on three grounds: First, error in the admission of evidence; second, that the in
The evidence which defendant contends was improperly admitted consists of the following portion of the deposition of General Baldwin, read by plaintiff: “Q. Did you ever see Mrs. Partello ride horseback? A. Yes, sir, and I have ridden with her. Q. Did you ever take any rides of any considerable distance with her? A. We used to ride from ten, twelve or sixteen miles chasing rabbits and wolves. The whole garrison rode.” The objection to this testimony was placed on the ground that the witness did not state the time of the incidents mentioned and it is argued that “the testimony as to Mrs. Partello’s physical condition prior to the date of the accident should have been confined to within reasonable limits and it devolved upon the plaintiff when introducing evidence on that subject to fix the time referred to so that the court could say whether it was sufficiently close to the time of the accident to have any legitimate bearing on the issue, or so remote as not to have any legitimate bearing.”
The witness testified he had known the Partellos intimately since 1879. During a large portion of the time between that date and the Spanish war in 1898, he and Major Partello had been stationed at the same post. He said on cross-examination that the last time he had met Mrs. Partello prior to the date of her injury was at McPherson, Ga., in 1899. Major Partello participated in the campaign in Cuba and later in the war in the Philippines. Mrs. Partello lived in the Philippines while her husband was there and accompanied him in many of his expeditions. Prom these facts, it appears that the horseback rides to which the witness referred must have occurred prior to 1899 and more than five years before
Plaintiff introduced a number of witnesses who testified to his wife’s condition of health before and after the injury. It was shown that in times of peace, while she lived at army posts, she participated in the social life of the garrison with zest and vigor, and during times of war endured many hardships in following her husband in his campaigns. All of the witnesses depict her as a woman of untiring energy, joyous spirits and, apparently, in perfect health. Since her injury, she has been a helpless invalid, unable to walk even the shortest distance without assistance and exhibits all the indications of serious nervous disorder.
On the other hand, defendant introduced a medical expert who testified, from an examination made by him shortly after the injury, he discovered that Mrs. Par-tello’s womb was greatly enlarged, from some cause which must have antedated her injury, and, further, it was disclosed that some years before the injury, she suffered in childbirth from a severe laceration of the perineum which failed to heal properly and for which surgeons operated on her while she was in the hospital undergoing treatment for her injuries. This evidence was offered for the purpose of showing that the condition of ill health in which Mrs. Partello was at the time of the trial was due not wholly to the injuries received in the collision, but to other causes which preceded that occurrence and which must have impressed her physical appearance with the marks of ill health. Facing a controversy of this character, it not only was material, but, we think very important for plaintiff to show that his wife, even from girlhood to the hour of her injury was robust, vigorous and to all appearances in
In Wigmore on Evidence (section 225) the rule is stated that “in showing the existence at a given time of any physical condition (skill, strength, health, or the like), the existence of such condition at a prior or subsequent time is evidential. The limits of time over which such evidence may range must depend on the circumstances of each case as to the probability of intervening changes and should be left entirely within the discretion of the trial judge.” Had defendant offered to show by witnesses that during the period covered by the observation of General Baldwin, Mrs. Partello had borne the appearance and acted in the manner of a person in bad health and had followed this up with evidence that such condition continued up to the date of the injury, it is very clear that such evidence would have been admissible on the’ ground that it would have a strong and direct relation to the question of the real cause of the physical impairment and disorder under which it is conceded she was suffering at the time of the trial. The facts in question were not remote in an evidentiary sense and it was proper for the learned trial judge to receive them in evidence.
The instruction on the measure of damages which is made the second ground of attack by defendant is as follows: “The court instructs the jury that if they find for the plaintiff they will assess his damages at such sum as they believe from the evidence will be a fair
The first objection to the instruction is that it fails to confine the injuries on account of which damages may be awarded to those specified in the petition. Our attention is called to the fact brought out in the evidence that when she recovered consciousness after the injury, Mrs. Partello complained of pain in one of her arms and expressed the belief that it was broken, and to the further fact that one of the physicians gave it as his opinion that her ovaries were injured and that there were indications of a tumor or abscess in her right side, none of which injuries is specifically mentioned in the petition. We agree with defendant that plaintiff does allege the specific injuries suffered by his wife in consequence of the collision. The rule is too well settled to require the citation of authorities that where the pleader specifies in his petition he will be held both in his proof and recovery to his specification, and if the instruction under consideration authorized the jury to award damages for injuries outside of those specially averred, it will be condemned on the ground that it enlarged the scope of the issues tendered by the petition. It would have been better if the consideration of the jury had been expressly confined to the injuries specified in the petition. But the omission from the instruction of such express restriction will not constitute re
Passing to the final contention of defendant that the verdict is excessive, we perceive nothing in the record from which we would be justified in saying that the jury was actuated by passion or prejudice and not by a desire to perform its duty fairly and impartially. The defense that Mrs. Partello is in ill health,' as the result of causes disconnected with the injuries received in the collision was met by substantial evidence and has been resolved by the triers of fact against defendant. That issue is settled by the verdict and we shall assume that Mrs. Partello’s unfortunate condition is the direct result of the injuries. From the evidence of plaintiff, which, in our opinion not only is substantial but preponderates over that opposed to it, she was a strong, vigor- ' ous matron, in perfect health at the time of the injury. She was left by the injury completely broken in health, a helpless and incurable invalid. The learned trial judge who had the parties before him entertained the view, which we share, that damages in the sum of $4,500 were not excessive. The fact that the verdict was $1,000 in excess of that amount, of itself, is not sufficient to warrant the inference that the jury was guided by an improper motive. [McGraw v. O’Neill, 123 Mo. App. 691.]
The case was fairly tried and, in our opinion, the verdict and judgment are for the right party. Accordingly the judgment is affirmed.