Scholl v. Grayson

127 S.W. 415, 147 Mo. App. 652, 1910 Mo. App. LEXIS 585

• Court: Missouri Court of Appeals
• Decided: April 5, 1910
• Status: Published

Opinion

GOODE, J.

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 •whom he afterwards discharged and sued for unskillful and careless treatment. The petition in that case was offered by defendant as an admission against the interest of plaintiff and being excluded by the court, an exception was taken to the ruling. Subsequently deceased employed other physicians who performed three operations on his arm; for the ends of the humerus bone which had been fractured in the accident had overlapped and never united. Portions of the ends-of the bone were taken off in order to obtain a better-healing surface, but notwithstanding the three operations, and the fastening of the parts of the bone together with silver wire, the ends never knitted perfectly to the time of the death of Hoefle, which occurred after the trial of the present action. A verdict was given for him for five thousand dollars and after a motion for a new trial had been overruled, he remitted five hundred dollars of the amount. The errors assigned on the appeal, besides the one mentioned, are, first, permit-’ ting deceased to testify what amount of money, if any, he had expended for medicines, surgical attention and hospital bills. The reason assigned for this objection was, the petition did not say anything about a hospital bill. Deceased answered he had spent about one hundred dollars for hospital services and three hundred dollars for medicines; but did not yet know what the bills of his physicians would be as he was still under their care. The next error assigned was permitting Dr. Raithel, one of the physicians who operated on deceased, to state the amount of his bill. The witness said deceased was being treated at the time and he could not tell exactly what the bill would be, but it would be between $250 and $300. It is also assigned for error that the court wrongly instructed the jury on the measure of damages by empowering them to award damages for loss of earnings-which they believed deceased had sustained or would thereafter sustain from his injuries, though the petition contained no allégation regarding future loss of earnings. Further, that the instruction on the measure of damages was erroneous because it. permitted the jury to award as damages expenses necessarily incurred for medical and surgical attention to deceased in consequence of his injuries and directly caused thereby, on an allegation, not that deceased had been compelled to incur the expense, hut that he had been compelled to expend large sums of money; namely, had paid out money for expenses. Exceptions were taken also to ■permitting a witness to state his opinion of the distance in which defendant’s machine could have been stopped, for the reason said witness was not qualified to testify as an expert, and to the testimony of this and another witness to the same point, as introducing an element of carelessness not alleged in the petition. We copy the part of the petition wherein the injuries of Hoefle are described:

“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 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.]

As regards the error assigned for permitting Dr. Raithel to state the amount of his bill, we remark the question was badly framed, for he should have been asked to state the reasonable value of his services. However, in view of the amount remitted from the verdict, this does not constitute reversible error, if it would in any event.

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 specially damages would accrue from loss in the future of earning capacity. Considering all the facts of the present case, we are not inclined to reopen-the question thus adjudged in a prior decision. Evidence was received, and without objection, as follows: The deceased had supported himself and family by his earnings as driver and collector for a laundry company; after his injury and to the time of the trial, fifteen months later, he had been unable to do anything, was then unable to do anything; had been in the hospital much of the time, had had three or four operations on his arm and the fractured bones never had united; the arm was shorter by some three inches than his other arm; he had undergone great suffering from it and, moreover, from hurts in the back and other parts of the body and had been knocked unconscious at the time of the accident. The physicians who attended him testified the prospect of recovery was gloomy and the arm never would be as good as before, which was nearly a self-evident fact. Plainly deceased' was so disabled that • diminution of earnings in the future was certain, and we cannot see how defendant was prejudiced by lack of a specific averment on the subject. Our minds are clear that he was not, and this being true, it is our duty to overrule the assignment of error. [R. S. 1899, sec. 865.]

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.

One of the eyewitnesses of the accident was permitted to state, against an objection, the distance in which the automobile could have been stopped, and the same testimony was drawn from a witness for defendant on cross-examination, defendant objecting to the question. The first witness was said not to be qualified to testify as an expert. He was an eyewitness of the accident and testified his opinion about the distance in which a machine like defendant’s and going at the speed it was on the occasion in question, could be stopped. We overrule the assignment, as the witness said he had had considerable experience in observing the speed of machines, had attended races, ridden in automobiles every day and read their speedometers, had been with the Diamond Rubber Company in its repair department for years and said company left to his judgment all matters based on speed. We think reason has not been shown for a reversal on this ground, as the trial court had some degree of discretion in the matter. The case of Sears v. Railroad, 6 Wash. 277, is exactly in point, though the witness therein was not so well qualified as the one who testified in this case. See, too, Bradford v. Railroad, 64 Mo. App. 475; Stotler v. Railroad, 200 Mo. 107, 98 S. W. 509. The objections to said testimony were directed likewise against its relevancy to the issues, as the petition did not assign for a cause of action, negligent failure to stop the car. In its answer defendant charged contributory negligence, saying deceased passed hurriedly from the sidewalk into the street near the automobile and so near it was impossible to stop, in time to avoid injuring deceased. Defendant put in evidence to prove those allegations, and to meet the defense thus attempted, it was proper to permit plaintiff to prove the possibility of stopping the machine after the dangerous position of deceased should have been seen; not as a basis of recovery, but to overcome the defense. The court allowed a verdict against defendant only on the ground of excessive speed and not for failure to nse ordinary care to stop the machine after the danger of an accident was visible.

The judgment is affirmed.

All concur.