Daly v. Falk Co.

SMITH, P. J. The petition, answer and evidence in this case are hut a counterpart or duplicate of those in Kane against the same defendant, as is seen by reference to 93 Mo. App. 209. The injury complained of in that case happened at the same time, under the same circumstances and in the same way as this. It would be impossible to differentiate the one case from the other. In Kane’s case, we held that an overthrown verdict for a much larger amount than that in this case was authorized by the evidence, and accordingly ordered that it be restored and judgment entered on it. And as there is no substantial difference in the constitutive' facts of the two cases, or in the evidence tending to prove such facts it is difficult to see why the conclusion reached in the one should not dominate the other. It is true the defendant during the progress of the trial of this case interposed an objection to the admission of certain evidence, but whether the ruling of the [102] court thereon was proper or improper is of no importance, since such evidence was most manifestly not prejudicial to the defendant on the merits. Without it, that remaining according to the ruling in Kane’s case was sufficient to justify the verdict. The judgment in the latter must he held in effect to foreclose the discussion of any question touching the merits of this. That case settles this. Finding no error prejudicial to the defendant on the merits, the judgment must he affirmed. All concur.