Batten v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts as above).— 1. The main contention of defendant is that the court erred in giving the following instruction on the measure of damages, to-wit: "3. If the jury find for the plaintiff they should [293] assess her damages at such sum as they may believe from the evidence will be a fair compensation to the plaintiff, first, for any pain or anguish of body and mind which the jury may find from the evidence she has suffered or will hereafter suffer by reason of her injuries and directly caused thereby; second, for any loss of the earnings of her labor which the jury may find she has sustained or will thereafter sustain by reason of said injuries and directly caused thereby; third, for any expenses she may have incurred for medical attention and nursing; the whole not to exceed the sum of ten thousand dollars, which is the amount claimed in the petition. ’ ’ It is insisted that there was no evidence of plaintiff’s earning capacity and that this element of damages should not have been incorporated in the instruction. Plaintiff testified that she was keeping a boardinghouse when she was injured; that prior to her injury she did certain necessary work in and about the keeping of the house; that after her injury she was unable to do any of this work and was compelled to hire others to do it for her; that this hired help cost her a certain sum each week. It seems to us that this evidence furnished a substantial and reasonable basis from which the jury could, with reasonable correctness, estimate the value of plaintiff’s individual labor in the conduct of her business and hence it was proper to call the juror’s attention to this element of damages. 2. It is next insisted that in a case like this, future mental anguish should not enter into a computation of damages; but future mental anguish can only be considered in estimating damages in a case where the injury complained of has resulted in the loss of an eye, or a limb, or in some external and visible injury that mars the beauty and symmetry of the body that the injured one should be “curtailed of this fair proportion . . . so lamely and unfashionably, that dogs bark at me, as I halt by them.” This contention would have force if [294] shame and mortification had been incorporated in the pleadings and instruction as elements of damages. But anguish may be produced without any disfigurement of the body. It is produced by extreme pain of body or mind or of both, and it may be presumed to exist where the nature, character and extent of the injury is such as to ordinarily produce it. Brown v. Railway, 99 Mo. 310; Newman v. Telegraph Company, 54 Mo. App. l. c. 443. If the injuries are permanent, or are reasonably certain to last an indefinite period and are reasonably certain to continue to cause bodily pain and mental anguish, such future pain and anguish, it has been repeatedly held, are proper elements of damages. Smiley v. Railway, 160 Mo. 629; Chilton v. St. Joseph, 143 Mo. 192; Bigelow v. Railway, 48 Mo. App. 367; Feeney v. Railway, 116 N. Y. 375. We think, under the evidence and on the foregoing authorities, the instruction was proper. 3. Complaint is made that the damages are excessive. If the injuries are of the nature, character and extent plaintiff’s evidence shows them to be, then it seems to us that plaintiff has more reason to complain of the inadequacy of the damages than has defendant to complain that they are excessive. Discovering no reversible error in the record, the judgment is affirmed. Reyburn and Goode, JJ., concur.