Woodward v. Donnell

146 Mo. App. 119 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— As will be noted in the statement of the case, this is an action for the value of services rendered. The only ■evidence introduced as to the value of the services was the fact that before entering into the employ of the defendant, the young man, son of the plaintiff, had been receiving thirty-five dollars a month as an assistant in an electrical supply or equipment company, and after he quit the employment of defendant he had been receiving from ten to fourteen dollars a week. It is argued by counsel for the respondent that this evidence was sufficient to show the value of the services of the plaintiff’s son; “that the services rendered were those of .a dentist’s assistant, the value of which services need not be determined from expert testimony, but are such as may be estimated by any one of ordinary intelli- ' gence.” We cannot agree to this proposition.

In Cobb v. St. L. & Han. Ry. Co., 149 Mo. 609, where the point was made that there was no proof of the value of the medical services and attendance during sickness, beyond the general statement of the plaintiff that he did not keep an account of these expenses, but that they amounted to about four hundred dollars, expended for nurses’ and doctors’ services and for ice, medicines, etc., the court, at page 630, holds that as there was no objection or exception saved to the general' character of plaintiff’s testimony in this regard and he was not cross-examined on the subject, it could not hold, on this record, that objection could be taken to the general nature of the instructions as to recovery for these services. But while so holding, the court cites and refers to several cases in which it was held, and as the court says, rightly, that proper objection having been made, an instruction based on such services had nothing in the evidence to support it and was erroneous. Referring to the case of Murray v. Railroad, 101 Mo. 236, in which it was ruled that evidence was not necessary as to the expense for nursing, as a jury could tell from the length of time plaintiff was in bed and from their own knowledge as to the value of such services what they were worth, Judge Sherwood, who delivered the opinion in the Cobb case, states that he does not regard that case as well considered on that point and it should not be followed. He further refers to the case of Smith v. Railroad, 108 Mo. 243, as a case Avhich was reserved on the distinct ground of the failure to prove the value of the services of the physician employed, concluding with the statement that he is unable to see why evidence is any more necessary as to the value of the physician’s services than as to those of nurse’s, nor why a jury could any better, without evidence, determine the value of the latter than of the former.

In Duke v. Mo. Pac. R. Co., 99 Mo. 317, it is held that where damages claimed are susceptible of proof with approximate accuracy and may be measured with some degree of certainty, they should not be left to the guess of the jury, even in actions ex delicto.

This court, in Mabrey v. Gravel Road Co., 92 Mo. App. 596, held, at page 609, that “it is doubtless necessary to make definite proof of the value of lost time when it can be done, and it is proper and the better practice to introduce opinion evidence along with the facts, when it cannot be.”

In Bradner v. Rockdale Powder Co., 115 Mo. App. 102, where it appeared that no proof was adduced to show the reasonable value of the services plaintiff rendered in selecting a suitable site for the location of a powder magazine, plaintiff insisting that the value of such services came “within the common knowledge of ordinary men,” and that the jury might settle on that value without evidence to aid them, Judge Goode, who delivered the opinion of the court, after citing cases, holds that “the reasonable value of such services as plaintiff rendered is not a matter of such common knowledge that testimony on the subject may be dispensed with. It was very easy to procure testimony on the point and some ought to have been introduced. The very essence of a case quantum meruit is the reasonable value of the work in dispute; and when the case is such that the inquiry as to the value is susceptible of proof by testimony, proof must be made,” citing Mabrey v. Gravel Road Co., supra.

Applying that to the case at bar, the whole ground on which a recovery is based is the value of the services of the plaintiff’s son to the defendant, or to any dentist, in the business or occupation in which the son was engaged. That occupation is referred to as “a dentist’s assistant.” Certainly such employment is not so common or the value of such services so within the common knowledge of all man, that courts and juries are to be presumed to know that value without any proof thereof. We are compelled to hold, therefore, that so far as the amount of the verdict is concerned, under the evidence in the case, the finding cannot be upheld; at most plaintiff would be entitled to recover nominal damages.'

We are compelled to reverse this case for another reason. Defendant offered to show that the young man, son of plaintiff, had been emancipated and that by enjoyment of the fruits of his labor by the consent of his, mother, she was no longer entitled to claim compensation. for his services. The question of emancipation or not, is a question of fact; if it was true, the plaintiff was not entitled to recover. The offer and the effort of defendant’s counsel was to prove the fact of emancipation. It was error to reject and exclude testimony on that line.

For the reasons given, the finding and judgment of the circuit court is reversed and this cause remanded.

All concur.