# Shinn v. United Railways Co.

> Missouri Court of Appeals · February 1, 1910 · 146 Mo. App. 718

URL: https://www.frixlaw.com/law-library/cases/8265364

## Case

- **Full name:** THOMAS SHINN v. UNITED RAILWAYS COMPANY, of St. Louis
- **Court:** Missouri Court of Appeals
- **Decided:** February 1, 1910
- **Citations:** 146 Mo. App. 718; 125 S.W. 782; 1910 Mo. App. LEXIS 518
- **Precedential status:** Published
- **Opinion:** Dissent by Reynolds
- **Judges:** Goode, Nortoni, Reynolds
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8265364

## Opinion text

DISSENTING OPINION.
REYNOLDS, P. J.
I regret that 1 am unable to concur in the reasoning or conclusion of my learned associates, on the assigned error in the instruction as to the measure of damages. I preface what I have to say by a somewhat fuller statement of the record.
This is an action instituted before a justice of the peace. On a finding for plaintiff, the case was appealed to the circuit court and there tried before the court and jury. The petition or statement sets out that *732 plaintiff wa^ injured by reason of the carelessness of defendant’s agents and servants, in starting a car with a sudden jerk while plaintiff was boarding it and before he could reach a place of safety on it, so that he Avas thrown.from the car, his clothing injured and he disabled from attending to his work for about two months. It is alleged that the loss of wages for two months amounted to $156, medical expenses amounted to $30, damage to and loss of a suit of clothing and hat $40, and that pain and injury had been suffered and personal injuries sustained. Plaintiff alleges that his total damages amounted to the sum- of $500, for which he prays judgment.
On the assignment of error on which the case is submitted and argued to us by counsel for appellant, it is only necessary to say that there was evidence that plaintiff had been thrown from the car in his attempt to board it and injured as alleged. The. error assigned is solely on the instruction as to the measure of damages. Touching the damage sustained, plaintiff gave evidence tending to show that the bill of the doctor who attended him was from $50 to $60; that this was a reasonable charge; that plaintiff lost ten weeks of time, his wages being $18 a week; that his suit of clothes and his hat were ruined, the value of both of these being $38.50.
The only instruction here complained of by counsel for appellant is instruction marked number 8, given at the instance of plaintiff. This instruction js as follows:
“8. The court instructs you, gentlemen of the jury, that if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and after receiving the injuries for which he sues as shown by the evidence, the physical pain 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 to have -been caused by the injuries then *733 and there received; the extent, if any, to which he has been prevented and disabled by reason of such injuries from working and earning a livelihood for himself at his regular employment as a bartender; his necessary expenses for medical attention in endeavoring to be cured; his loss by reason of damage, if any, to his wearing apparel, as a result of the falling or being thrown from defendant’s car; and you may find for him such sum, as in the judgment of the jury, under all the evidence in the case, will compensate him for the injuries then and there received, if any, wages or earnings lost, necessary expenses incurred, and damage to wearing apparel suffered, not, however, exceeding the sum of five hundred dollars.”
In addition to this instruction, seven instructions were given. The first set out the facts in the case and instructed the jury as to the liability of the defendant, if these facts were proven. The second was as to the duty of the defendant to exercise- the highest degree of care, caution and diligence, reasonably practicable, for the personal safety of the plaintiff, if he was in the act of taking passage on the car. These two instructions are numbered 1 and 2. Instructions numbered 3, i and 5 were given at the instance of defendant and need not be noticed, any further than to remark that none of them related to the measure of damages. The court of its own motion gave instructions which were numbered 6, 7 and 9, and at the request of plaintiff gave the above instruction, which is marked 8, and in the abstract is so numbered, and is referred to as given at the request of the plaintiff. The giving of all these instructions was duly excepted to by defendant.
There was a verdict for plaintiff for $250, and defendant in due time filed its motion for new trial. The third ground stated is as follows: “3. Because the court committed error in giving instructions numbered one, two and three, upon the part of the plaintiff.” *734 An appeal was thereupon duly perfected to this court by defendant.
As to the proposition covering the error in the number of the instruction, calling it number 3 when it is number 8, I agree that such mere clerical error is too trifling to defeat a party of its rights to have the case heard on the alleged error in that instruction, notwithstanding the number given to it is erroneous. It is the only instruction covering the measure of damages in the record.
The defendant relies upon the cases of Smoot v. Kansas City, 194 Mo. 513 , 92 S. W. 363 ; Tinkle v. Railroad, 212 Mo. 445 , 110 S. W. 1086 ; Impkamp v. Transit Co., 108 Mo. App. 655 , 84 S. W. 119 ; Heinz v. United Railways Co., 143 Mo. App. 38 , 122 S. W. 346 , as ground for reversal of the judgment in this case. Particular reliance is placed upon the decision of this court in Heinz v. United Railways Co., supra, the opinion filed November 2, 1909. While it is true that the writer concurred in the opinion rendered in the Heinz case, the point now here raised was not considered, nor was it in the Smoot, Tinkle or Impkamp cases. An examination of the files in the Heinz case discloses the fact that the instruction held to be erroneous and for the giving of which the judgment was reversed Avas as follow's:
“The court instructs the jury that if, under the evidence and instructions of the court, you find in favor of the plaintiff, you should assess his damages at such an amount as you believe from the evidence will be a fair compensation to him for the pain of body and mind, if any, Avhich he has suffered, occasioned by his injuries in question, and for such loss of earnings, if any, as you may believe from the evidence he has suffered in consequence of said injuries, and for such reasonable actual expenses, if any, which he has incurred for medical treatment.”
*735 It will be noticed that there is no limitation whatever of the amount the jury were authorized to award as damages. In the case at bar the amount is distinctly limited to the sum of $500.
The Heinz case decision rests on the decision of the Supreme Court in the Smoot case. In that case the petition stated the value of the surgeon’s services and damages on account of the liability for them at $200. The instruction of the court authorized the jury to allow $350 for this service. It is also true that in the Smoot case, while the instruction authorized recovery for the loss of time for which plaintiff claimed $250, the court in its instruction made no limitation as to the amount plaintiff could recover for lost time, and it would seem that the court held this error. But a careful reading of the opinion leads the writer to doubt as to that. The discussion was more over the question' of whether a remittitur could be intelligently made in the award of damages. The majority opinion refers to the Tinkle case. While comment is made in that case on the failure of the court to limit the jury to the amount recoverable for medical services, Judge Burgess, who delivered the opinion, says that upon the retrial of the case, that should be corrected. But he does not hold this omission to be reversible error. The writer does not understand that any of these decisions hold that the jury must be instructed as to each item in an account. If that is the law, I do not see why it does not apply not only to actions for damages, but to those for goods, wares and merchandise sold, to any actions embracing several items, and if that is true, it would seem to make each item of charge a separate cause of action. If it is necessary to so instruct, it would seem to follow that it should be so plead and that the jury, in its verdict should specify each item for which it allowed damages and the amount allowed. I do not understand this ever to have been the law in this State, and cannot bring *736 myself to believe that our Supreme Court so intended to hold. The writer, speaking for himself, is unwilling to establish that as a rule, unless the point is specifically so decided by our Supreme Court, in a controlling decision to which we are bound to conform.
Our statute, Revised Statutes 1899, section 721, provides that, “In every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.” These actions for damages for personal injuries sustained are referable to no class of actions other than actions for the recovery of money only, and the jury can only enter a general verdict. It has been held in many cases that this is so even when there are several counts in the petition. Of what useful purpose is the instruction of the court to the jury to confine its verdict to the amount specified as to each item, if on the return of the general verdict which the law demands, it is impossible to determine, unless that amount happens to equal the sum of the amounts claimed, whether or not the jury has conformed to the instruction of the court? It has long been the recognized practice in this State to sustain as correct an instruction on the measure of damages which, in general terms, confines the jury to the award of damages not exceeding the amount claimed in the petition.
In Browning v. Railway Co., 124 Mo. 55 , 27 S. W. 644 , passing on such an instruction, it is held (l. c. 72) that the instruction, although general in its scope, is not for that reason erroneous. The opinion in this case was delivered for the court In Banc by Judge Barclay and referring to the part of the instruction as to the measure of damages, Judge Barclay says at page 71, that it was prepared by Judge Gantt. It is approved and adopted by all the members of the court, except Judge Burgess, who, having tried the cause as a circuit judge, took no part in the decision, but as he was the judge who had given the instruction which was approved, the result can reasonably be assumed to have *737 met with his concurrence. Furthermore, in the case before us, the defendant asked no corrective instruction as to the measure of damages. Quoting from that part of the opinion in Browning v. Railway which was prepared by Judge Gantt and is at page 72 of the report, it is said: “The instruction is not erroneous in its general scope; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury, it was the duty of the counsel to ask for modifications and explanations, in an instruction embodying its views.”
In Wheeler v. Bowles, 163 Mo. 398 , 63 S. W. 675 , in discussing the error urged to lie in the failure of the circuit court to instruct the jury as to the rule by which they should estimate plaintiff’s damage, Judge Gantt, speaking for Division Number 2, says: “As to this point it is only necessary to remark that this is a civil action and mere non-direction is no ground of error in this court. Defendant did not submit any instruction on the elements of damages, neither did plaintiff. If defendant desired the jury restricted to certain elements he should have offered an appropriate instruction on that subject.” Judge Gantt then refers to the fact that they are cited by counsel to the case of Carpenter v. McDavitt & Cottingham, 53 Mo. App. 393 , but. he calls attention to the fact that that was overruled in Haymaker & Crookshanks v. Adams & Son, 61 Mo. App. 581 , to conform to the opinion of the court In Banc in Browning v. Railway, supra.
Later, in Geismann v. Missouri-Edison Electric Co., 173 Mo. 654 , 73 S. W. 654 , the instruction as to the measure of damages was a general one, limiting the award of damages to the amount stated generally in the petition. Referring to this instruction, Judge Burgess, at page 679, cites Browning v. Railroad, supra, and quotes from it in support of the rule that where no instructions are asked by the defendant as to the
*738 measure of damages, an instruction couched in general language is correct. Judge Burgess also cites Barth v. Railroad, 142 Mo. 535 , 44 S. W. 778 , as establishing the proposition that the “generality of the instruction would not constitute reversible error, as the right was reserved to defendant to point out the elements limiting the damage in its own instructions.”
As I am not only bound by my oath of office to support the Constitution of our State, but am in thorough and hearty accord with the provision of that Constitution which requires us to follow the “last previous rulings of the Supreme Court, on any question of law or equity,” for in no other way can uniformity of decision be secured, I venture to call attention to the construction placed upon this constitutional provision by our Supreme Court.
In Bank v. Woesten, 144 Mo. 407 , 46 S. W. 201 , a case which this court had certified to the Supreme-Court because in its opinion, its own decision in the case was “not in harmony with the decision of the Supreme Court” in another and the last previous decision of the Supreme Court, Judge Gantt, then Chief Justice, speaking of this court and for the court In Banc, all of the judges except Judges Sherwood and Marshall concurring, says (1. c. 409, 410) : “When that court unanimously concurs in its interpretation of a decision of this court but one alternative remains, and that is, to follow it. If on the other hand it deems any decision of this court not applicable to the facts before it, in judgment, the mere fact that such decision of this court is later in date, and is cited as controlling authority, will not prevent that court from judicially determining which decision it regards as the last upon the question presented in their record. Indeed they are required to do so, and cannot evade that responsibility by sending it to this court to correct what the court of appeals may deem conflicting opinions of this court.”
*739 Later, in the case of M., K. & T. Ry. Co. v. Smith, 154 Mo. 300 , 55 S. W. 470 , Judge Eobinson speaking for all the members of the court then present in court In Banc, Judge Marshall being one, Judge Sherwood alone absent, quotes the above from the opinion of Judge Gantt approvingly. It is in entire harmony with this ruling of our Supreme Court, when having the question directly in judgment, and deciding it In Banc, that I hold that the decisions in Browning v. Railway, Wheeler v. Bowles and Geismann v. Missouri-Edison Electric Co., supra, are the “last previous rulings of the Supreme Court” on the question of law here involved.
In Smoot v. Kansas City and Tinkle v. St. Louis & S. F. R. R. Co., supra, relied on by my very learned and careful associates, the point involved in the cases cited by me was not raised and was not considered. No suggestion was made in either of them that a general verdict was insufficient and that judgment rendered in a "civil cause would not be reversed for non-direction as to amount of damage, no instruction being asked qualifying the one given. We have a right-to assume, in the light of the cases cited, that if it had been made, the Supreme Court, in Divisions 1 and 2 would have followed what the court In Banc had decided. In the Heinz case, in the decision of which the writer concurred, no snch proposition was made or considered as I have here put forward. So that I not only do not feel bound by it, but it affords a striking illustration of the proposition that I here make, namely, that a point not made and considered is not within the decision. The point of non-direction not made, was not in judgment in either of those cases. I think, therefore, that the latest ruling of the Supreme Court on the proposition that mere non-direction in a civil cause is not ground for reversal, is found in the cases I have cited and that the proposition so well made by Judge *740 Gantt in Bank v. Woesten, supra, namely, that the mere fact that a decision of the Supreme Court is “later in date, and is cited as a controlling authority, will not prevent (this) court from judicially determining which decision it regards as the last upon the question presented in (our) record,” is applicable here. I therefore repeat that in my judgment neither the Heinz case nor the cases therein relied upon should control in the disposition of this question in this case, for the reason that the points here involved were not presented for consideration or adjudicated in them and that on that, point, the last controlling rulings of our Supreme Court are against the positions now taken by my learned colleagues. Deeming that the decision of the court on this proposition is contrary to the decisions of the Supreme Court in the Browning, Wheeler and Geismann Cases, supra, and considering the point involved of sufficient importance, I most respectfully ask that this cause be certified and transferred to the Supreme Court of the State.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8265364. Public record. Not legal advice.