147 Mo. App. 652 | Mo. Ct. App. | 1910
Charles Hoefle, now deceased, was run over by an automobile belonging to defendant and operated by him on October 25,1907. Three other men were in the machine with defendant, who was driving. The accident happened about 6:30 o’clock p. m., when deceased, who worked at the Colonial Laundry, 4020 Olive street, in St. Louis, had started for home, walking along the south side of O'live to Westminster Way, where he stood for a few minutes waiting for a car. Two other men were waiting there and as a car came along from the west, bound east, the three stepped out into the street to get aboard. Just then one of the men who was standing immediately east of the deceased, happened to look northeast and saw defendant’s automobile, which had been following a car on the westbound or north street railway track from down town, veer so quickly toward the southwest and around to the south side of the car the men were waiting for, that two of them barely had time to jump out of the way, and deceased was caught, thrown down and dragged under the automobile from fifteen to forty feet, breaking his right arm and otherwise hurting him. The assignment of negligence was running the machine at a high and unlawful speed, and it was supported by evidence for the jury, as defendant’s counsel concedes. Deceased was first treated for his arm by a physician
“Said automobile negligently, carelessly and abruptly crossed to the south side of said Olive street and ran against plaintiff with great force and violence and threw him to the ground and dragged him for a long distance, and broke the bone of his right arm between the elbow and the shoulder and bruised and injured plaintiff about the back, shoulders, arms and hips, thereby permanently injuring him, and greatly ■shocked and permanently injured plaintiff’s nervous system and caused him great pain of body and mind, and consequent expense and loss of time.
“Plaintiff states that by reason of said injuries so inflicted by the carelessness and negligence of defendant, he has suffered and will suffer greatly in mind and body and was and is prevented from pursuing his regular vocation as collector and chief wagon driver or any other ordinary labor or calling and that plaintiff had been compelled to expend large sums of money for medical and surgical attention, medicines and nursing, and is still under the care of a physician and surgeon*663 by reason of said injuries and will be compelled to expend large sums of money for medicines and medical •services in tbe future. ’ ’
The offer of the petition in the action filed by deceased against his first physician for wrong treatment was not accompanied by an offer to prove the physician was not of good reputation or deceased fell short of due care in consulting him. The duty of a party injured by the tort of another to use reasonable care to obviate, as far as possible, bad results from the injury and thereby diminish the damages, extends no further in the matter of selecting a physician to treat the injury, than to select one of good repute. For lack of care and skill shown by such a physician in his treatment, the patient is not answerable, nor is the circumstance admissible to mitigate the damages for which the tortfeasor is liable. [Elliott v. Kansas City, 174 Mo. 554, 74 S. W. 617, and cases cited.] The petition filed by deceased against his physician was properly excluded because it tended to establish no fact favorable to defendant.
Error is assigned for receiving evidence of the sum paid by deceased for hospital expenses. We think the assignment not well taken, despite the strict rule which prevails in this State about not receiving evidence of, nor authorizing the jury to allow for, items of special damages not averred. The petition alleges deceased had been caused expense and compelled to expend money for medical and surgical attention, medicines and nursing. It would be better to enumerate, among the claims for damages, a hospital bill, if the amount of one is expected to be recovered; but as -evidence of payment of such a bill was received in this case without objection, we hold the court did not err in letting the jury include the item in their award. [Mellor v. Railroad, 105 Mo. 455, 16 S. W. 849.]
Much is said against the direction to the jury to award damages for future loss of earnings, as being beyond the scope of the petition. Defendant’s counsel insist there was nothing in the petition about loss of earnings; but this is a mistake, for loss of time is averred, which is the same, in legal effect, as averring loss of earnings. [Slaughter v. Railroad, 116 Mo. 269, 23 S. W. 760.] It is earnestly insisted the petition, if it charged loss of earnings or of time, referred only to the time anterior to and contemporaneous with the trial. The averments of the petition are, plaintiff was “caused . . . expense and loss of time; . . . was and is prevented from pursuing his regular vocation as collector and chief wagon driver, or any other ordinary labor or calling.” Those averments do not relate to future earnings, and only inferentially can the petition be said to suggest future loss of time; that is, by alleging permanent injuries, and such an allegation has been held not to be equivalent to alleging loss of time or of earnings. [Coontz v. Railroad, 115 Mo. 669, 22 S. W. 572; Gerdes v. Christopher & Simpson, etc., Co., 124 Mo. 347, 27 S. W. 615.] But it has been held, too, future loss of earnings signifies diminution of earning capacity in the future and may be shown without a special averment. [Bartley v. Trorlicht, 49 Mo. App. 214, 218.] In the opinion in the cited case this court said the decisions requiring a • special averment in order to recover loss of earnings, had been given in cases where the loss sought to be recovered was of past earnings, and it never had been the practice in actions for personal injuries to aver
A further point is made against the verdict because the jury were authorized to consider the expense bills incurred by the deceased for treatment, whereas the petition averred bills had been paid. Decisions on this point go no further than to hold if evidence of the incurring of bills is offered under a petition which avers payment of them, the evidence is incompetent against an objection. [Spengler v. Transit Co., 108 Mo. App. 829, 83 S. W. 312.] In the cited case this court held if such evidence is received without objection, it may be referred to the jury; and this is in accord with, the ruling in Mellor v. Railroad, supra.
The judgment is affirmed.