Opinion
No. 27958.
November 2, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied December 1, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM S. CONNOR, J.
Thompson, Mitchell, Thompson Douglas, John O. Hichew and William G. Guerri, all of St. Louis, for appellant.
Cox, Cox, Cox, George G. White, and William A. Moffitt, Jr., all of St. Louis, for respondent.
This is an action by Fred Stewart, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged by plaintiff to have been sustained on April 14, 1949, while a passenger on one of the defendant's motorbusses. The trial in the Circuit Court resulted in a verdict in favor of plaintiff in the amount of eight thousand dollars, which was reduced to four thousand five hundred dollars by a remittitur by plaintiff of three thousand five hundred dollars in response to an order of the Circuit Court.
Plaintiff sought recovery under the res ipsa loquitur doctrine. After formal allegations, and an averment that plaintiff was a passenger on one of defendant's motorbusses, the petition stated that: "as a direct and proximate result of the negligence, carelessness, failures and omissions of the defendant, said motorbus was caused to suddenly, violently and unexpectedly jump a curbing there, and was caused to suddenly, violently and unexpectedly collide with a telephone pole there, causing him to be violently thrown and hurled about in said motorbus in which he was riding as aforesaid, and to strike and be struck by parts thereof, seriously and permanently injuring him, as hereinafter more fully described."
The petition set out in great detail the injuries claimed to have been sustained by plaintiff, including permanent injuries to plaintiff's back and spinal column and the vertebrae thereof. It was also alleged that plaintiff had been caused to suffer, and would suffer in the future, attacks of nervousness, headaches and insomnia, and great pain and mental anguish. By the fourth paragraph, it was averred that a pre-existing arthritic condition in plaintiff's spine, which was not painful or disabling prior to the accident, had been aggravated and activated and rendered painful and disabling.
By its answer, defendant admitted its corporate existence and that it owned and operated the motorbus in question. All other allegations of the petition were denied.
The defendant on this appeal has briefed three points as grounds for reversal. They are: (1) that the court erred in not directing a verdict for the reason that plaintiff failed to prove that defendant's conduct was the direct and proximate cause of the plaintiff's alleged injuries; (2) that the court erred in permitting plaintiff to testify concerning the amount of his earnings at the Union Automobile Club where he was employed on a commission basis for a period of about six weeks prior to the accident; and (3) that the court erred in giving plaintiff's Instruction No. 8.
We find little dispute in the evidence with reference to the manner in which the accident occurred. Plaintiff, on April 14, 1949, was a passenger on one of defendant's motorbusses, traveling in a southerly direction on Bredell Avenue. According to plaintiff's testimony he was seated near the window on the first cross-wise seat back of the long seat on the right side of the bus. The bus approached Folk Avenue at a rate of speed estimated by plaintiff at ten miles per hour. There were stop signs at the intersection of Bredell and Folk Avenues. When the motorbus reached said intersection the bus driver made a right turn into Folk Avenue, without stopping, and in doing so caused the front wheel on the right side of the motorbus to go over the curb and the side of the bus to collide with a telephone pole.
The operator of the motorbus testified that when the motorbus reached the intersection in question he brought it to a complete stop, then proceeded around the corner into Folk Avenue at a rate of speed of about two miles per hour. He further testified that the right rear wheel of the bus went over the curb and the bus eased into the telephone pole at a point two or three feet in front of the rear exit door.
As to the effect of the unusual movement of the bus, plaintiff's testimony was as follows: "It threw me forward on to the long seat over to the small rail. When the bus came to a complete stop it jackknifed me back into the seat, the same seat I had originally been sitting in. * * * my abdomen struck this rail. I was thrown over the rail, and when the bus came to a complete stop it jackknifed me back into the original seat. My seat struck the seat and the lower portion of my back above the waist line."
Plaintiff further testified that when the bus came to a stop he walked to the front of the bus to see what happened, but when he stepped down from the bus he felt so bad he returned to the bus and sat down. After considerable delay the bus was backed away from the telephone pole and continued on its regular route. Plaintiff remained in the bus until it reached a point about two blocks from his home, at which time he alighted and walked home.
Defendant offered evidence to show that the collision was of such slight character that it could not have injured anyone. The operator testified that the bus was traveling about two miles per hour when it went over the curb and "eased" into the telephone pole, and that he (operator) was not thrown forward or backward in his seat or to either side.
Maggie Bailey, a passenger in defendant's motorbus at the time of the accident, testified, as a witness for defendant, that she did not recall the wheels striking the curb, but did recall the rear part of the bus, back of the exit door, hitting the telephone pole. She further stated that nothing happened to her when the accident occurred; that she was not thrown in her seat in any direction, and did not feel any jar, jolt or jerk. She stated that the contact of the bus with the pole "wasn't enough for me to feel it."
Plaintiff testified that as he walked home after alighting from the bus he suffered intense pain and had difficulty in walking when he arrived home; that his brother tried to contact the family doctor but the latter was not in his office at the time; that he then took aspirin in an attempt to get some rest, but was unable to rest; that the following morning he went to the office of Dr. Michael; that Dr. Michael examined him, taped his back, and gave him a diathermy treatment. On his second visit to Dr. Michael's office plaintiff was told to have X-rays taken in Dr. Levey's office. After these X-rays were taken Dr. Michael advised that plaintiff wear a support for his back and gave him medicine to ease his pain. Plaintiff testified that he purchased the support around May 4th and had worn it at all times since, except when he rested. He also stated that he had visited Dr. Michael's office for treatment about eighteen times, and that diathermy treatments were administered on these visits.
Plaintiff also consulted and was examined by Dr. F. G. Pernoud about ten or eleven times. He was referred to Dr. Pernoud about six weeks after his first visit to Dr. Michael's office. Dr. Pernoud did not prescribe any different treatment, and advised plaintiff to follow the treatments prescribed by Dr. Michael.
Plaintiff further testified: "I have a constant pain in the pit of my back, at times it reaches a proportion it is almost impossible to stand it. * * * Most times it is a dull pain, then it reaches to a sharp pitch as though there was a knife in the middle of my back. * * * I have a constant throbbing pain there all the time. * * * The knifelike pain will last for days and the dull throbbing, that is all the time. When the knifelike pain goes away the dull throbbing pain is still there. * * The striking point of the pain is right there in the pit of the back, the ache is there at all times. * * * Since the accident, at the time of the accident I also noticed a pain in the upper part of my neck, the upper part of the spine, that has given me pain, but I have suffered with severe headaches in the back of the head on numerous occasions also, and there have been times when I would have tremors since the accident that makes me nervous at times, I can't control my legs and sometimes my arms. * * * Any move I make aggravates it. * * * For a period of, I would say, approximately four weeks I worked an average of two hours a day after the accident. That was for the purpose of picking up collections on some sales here and there until the pain became so severe that I couldn't continue on."
Plaintiff further testified that he discontinued working about the middle of May, 1949.
On direct examination, plaintiff testified that prior to April 14, 1949, the date of the accident in question, he had had no serious illness in his life other than a gall bladder operation and that he had not had any serious injury prior to that date or any pain in his back. He also stated he had never suffered headaches, nervousness, sleeplessness, or body tremors prior to the date of the accident. On cross examination, plaintiff gave like testimony, but when pressed he testified:
"According to the report received from Dr. Michael it shows what seems to have been an injury to that back at some time or other * * *. I don't recall having an injury.
* * * * * *
"Q. Have you ever filed a claim against anyone else for injuries? A. No, not that I know of.
* * * * * *
"Q. As I understand the situation, your testimony is that prior to the time of this particular accident on April 14, 1949, you had never had any prior accident and had not suffered any prior back injury, is that correct? A. To my back, no, sir.
* * * * * *
"Q. Mr. Stewart, didn't you on January 24, 1948, fall on some ice in the city of Eveleth, Minnesota, in front of the Stop and Shop Grocery Store in that city? A. Yes, sir.
"Q. And didn't you on that occasion also suffer injury to your back? A. I suffered some torn ligaments, but I didn't suffer any very serious injury at all, and I didn't lose any work, I continued to work right straight through.
"Q. Didn't you on that occasion suffer a fracture of a vertebra in your back? A. Not to my knowledge. * * * I filed no claim, there was a gentleman came to me, he asked if I was hurt, I said, `nothing serious at all,' and he offered me a few dollars to settle the case for nuisance value * * * I filed nothing in writing. * * Mr. Constantine in the city was the mayor, and attorney, Mr. Greenberg was city attorney, when they heard I had slipped they called me on the phone and said: `How do you feel?' I said: `fine, I am working every day.' I said, `I am taped up, some of the ligaments in my back,' and they offered me a small sum of money if I wouldn't bring a claim against the city. * * * I said, `I have no intention of claiming,' and they said, `we would just as soon get the thing out of the way,' and they said, `If you will do this thing for us, it will clear the court record.' It was just merely two friends — there was no court action."
It further appears that plaintiff signed a notice of claim against the city of Eveleth. Plaintiff testified that he signed it at the request of Mr. Greenberg, and that he did not read it before signing. This notice was as follows:
"Mayor and Council City of Eveleth Eveleth, Minnesota "Gentlemen:
"You will please take notice that on the 24th day of January, 1948, at about two-thirty in the afternoon of said day, while the undersigned Archie Stewart was walking with due care in a southerly direction on the sidewalk immediately in front of the Stop and Shop Grocery Store located on Grant Avenue, in the City of Eveleth, the undersigned slipped and fell and suffered injuries to his back and was otherwise seriously injured about the legs and body. That the undersigned fractured a vertebra because of such fall."
It further appears that the above claim against the City of Eveleth, Minnesota, was settled for the sum of $100.
Plaintiff further testified that he lost no time from his work on account of the fall in Eveleth, Minnesota, and denied being treated for a fractured vertebra, and denied he had been placed in a body cast. He stated he suffered some torn ligaments and that Dr. John Siegel placed some heavy tape on his back.
Morris H. Greenberg, City Attorney of Eveleth, Minnesota, was called as a witness for defendant. He identified the claim heretofore set out as having been made by plaintiff and stated he did not personally have anything to do with its preparation. He further stated that he had had conferences with plaintiff about the claim, and suggested getting a medical report of plaintiff's doctor. This was received by him and was, in part, as follows:
"Cause of injury: walking in front of the Stop and Shop Store in Eveleth, `I slipped on the icy sidewalk and fell on my seat.'
"Date of injury: approximately 2:30 P.M. January 24, 1948.
"Nature of injury: Compression fracture of the first lumbar vertebra. He also complains of pain in the left hip. He was seen at 11 A.M., January 25, 1948.
"A body cast was applied. This was kept on about five weeks and then removed. X-ray examination at this time reveals the fracture site practically healed.
"I do not feel there will be any permanent disability. He is able to do a small amount of work at this time.
"My fee for care of Mr. Stewart is $100."
Mr. Greenberg testified that he discussed the medical report with the plaintiff on April 6, 1948, and that plaintiff represented that the report of the injuries and findings of Dr. Siegel were correct. Other conferences concerning the claim were held between Mr. Greenberg and the plaintiff on July 19th and July 23rd, 1948. The claim was finally disposed of on August 12, 1948.
Dr. V. E. Michael testified for the plaintiff. He stated that he saw plaintiff on April 15, 1949, which was the next day after the accident. At that time plaintiff complained of pain in the lower portion of the back, and pain in the upper portion of the spine in the region of the neck. The doctor's findings upon physical examination were: muscle spasms, localized tenderness to pressure and limitation of movement in all directions as a result of pain. X-rays were taken in Dr. Levey's office at the direction of Dr. Michael. The latter testified that these X-rays revealed the existence of arthritis and a narrowing of one of the lumbar vertebrae. He also stated it was his impression that plaintiff had experienced an aggravation of a previous existing arthritic condition which had resulted in pain, discomfort and disability.
Dr. Michael, while on the stand, interpreted the X-rays taken in Dr. Levey's office. Plaintiff's Exhibit C was an X-ray taken in an anterior-posterior position, showing that portion of the body extending from the second to last rib down to and including the pelvis. The doctor in interpreting this film said: "* * * and we see here the existence of an arthritis in that we have a bridging or deposit of calcium extending from one vertebra to the other. Along with that we have little exostosis or a little increase in the deposit of calcium laid down at the edges there * * *."
Plaintiff's Exhibit B was an X-ray taken on the same day showing a lateral view of the spine. The doctor stated that it showed a marked narrowing of the first lumbar vertebra and that the other lumbar vertebrae were normal except for calcium deposits. X-rays taken on September 30, 1949, showed essentially the same condition as shown in plaintiff's Exhibits B and C.
Dr. Michael further testified that he was unable to say how long the arthritic condition had existed but was of the opinion that it existed prior to April 14, 1949. Dr. Michael stated that it is possible for a person to have arthritic changes in the spine and not be troubled with it — a condition that the doctors refer to as a "quiescent state," indicating that there are no symptoms existing, but that trauma can activate or aggregate the condition and produce pain and disability. He further testified:
"Q. And that is the conclusion that was reached in this man's, Fred Stewart's, case? A. That is my opinion, yes.
* * * * * *
"Q. From your experience, Doctor, are you able to tell us whether or not arthritis is painful and disabling? A. Yes, I can give you my impression on that. Arthritis is very painful and very disabling at times.
"Q. Now are you in a position to give us your expert opinion as to Mr. Fred Stewart's disability? A. Yes. * * *
"Q. What is your opinion? A. My impression is that he is disabled."
Dr. Michael further testified that he had treated plaintiff on an average of two or three times a week since April 15, 1949; that there had been no change in his condition; that his disability had been total, and that he was not in physical condition to work. He further testified:
"He will not be cured. These changes that exist in the vertebra, they will be permanent. There will not be any absorption of those deposits of calcium * * * that is a permanent condition.
"Q. Is it probable that he will continue to suffer pain and disability? A. That is probable, yes."
Dr. Michael further testified that muscle spasm indicates pathology in the region where the muscle spasm exists; that it is nature's attempt to immobilize the area to prevent too much motion and is always attended with pain; that when you see a muscle spasm it points out an abnormality; and that he advised Mr. Stewart to wear a support.
On cross-examination, Dr. Michael testified that a quiescent arthritis can be activated by means other than trauma, such as a severe systemic involvement resulting from infection, or for some unexplained reason.
Dr. F. G. Pernoud first examined plaintiff on May 21, 1949, and saw him about eight times thereafter. Dr. Pernoud testified: "I found at the time of my examination that he was wearing a strong canvas supportive corset with some stays in it, so as to support the small of his back. * * * The large muscles on each side of the spine were very tense and were spastic, indicative of an inflammatory condition beneath the spot. And these muscles stiffened up so as to cut down movement of that spine. There was tenderness on pressure about the spine generally, but particularly about the first lumbar vertebra and that is the vertebra in the back just above where the belt crosses the back. All movements of the spine were limited, * * * after taking off his corset he was unable to bend his spine normally to its full extent in any direction. He had a tremor or quiver condition developed in both legs when he sits for any period of time * * * the X-ray picture shows that he has arthritis of the spine generally and a compression of the first lumbar vertebra and an arthritic bend joining the twelfth thoracic vertebra, that is the last vertebra to which ribs are attached and the first lumbar vertebra. It is my diagnosis that he had an arthritis, we doctors call it a hypertrophic, osteoarthritis to his back. This would mean the building up of spurs on the articulating processes along the vertebra."
When asked what was causing the tremors in plaintiff's legs, the witness replied: "It was my opinion that there was a combination of conditions, in fact that he was suffering from a considerable amount of pain and discomforture and possibly other conditions of which I don't know, that were joining in and creating those tremors."
Dr. Pernoud further testified that he last saw plaintiff on October 1, 1949, at which time there was no improvement in his condition over that found on the first examination. He further testified: "He will have it (disability) for an indefinite time in the future but I couldn't predict that time in weeks or months or years, but he will have pain for an indefinite period of time in the future, and the characteristic of these cases is for them to have pain for indefinite periods of time. Then they have recesses where there may be very little pain, and again for some reason often it is unknown, this condition will be reactivated and there will be a reactivation of these pains. * * * It is my opinion that he is all during the time I have treated him, he has suffered a total disability, I mean by that he is unable to do any form of work over the period of time * * *. It is my opinion that he is suffering pain."
Dr. S. A. Levey, an X-ray specialist, testified for plaintiff. He stated that he took two X-rays of plaintiff's back on April 20th and again on September 20, 1949. Viewing the X-ray taken on April 20, 1949, Dr. Levey testified that there was a compression or narrowing of the space between the first lumbar vertebra and the twelfth dorsal vertebra; that there were arthritic deposits on the anterior borders of the bodies of the first through the fifth lumbar vertebrae, with very little of that type of pathology on the fourth lumbar vertebra; that there were some bone deposits in the region of the twelfth dorsal and the first lumbar vertebrae causing a bridging due to the bone formation. Dr. Levey testified further that the changes in the plaintiff's back were very definitely these prior to April 14, 1949, the date of the accident in question; that they could not possibly have been built up in the six days elapsing from the date of the accident to the date of the taking of the first X-ray films; that it is possible for a person to have arthritic changes in his spine and not be bothered with it; that such a pre-existing arthritic condition may be activated and rendered painful by some means of trauma or other type of high grade infection; that arthritis is disabling during the active stages; that X-ray films do not show the degree of pain a person may have from arthritis; that a person with arthritic changes in his back is more susceptible to injury; that it is common in arthritis that there are periods of disability and pain and periods of quiescence; that trauma is one of the causes of activating a quiescent arthritis; that infections of various types, disassociated entirely from trauma, may also activate a preexisting arthritis; that plaintiff's arthritic condition might be the result of an old injury, and that it is quite possible that it could have been aggravated by a cause other than trauma.
Dr. John Patrick Murphy, an orthopedic surgeon, testified for the defendant. Dr. Murphy stated he examined the plaintiff on September 21, 1949; that plaintiff complained of backaches, headaches, nervousness, and had crying spells, and tremors of the upper extremities; that most of plaintiff's complaints were confined to the lumbar spine and lower part of the back. Dr. Murphy stated that upon examination he found no muscle spasm, no muscle contraction, which is a protective mechanism that the muscles go into to hold the back stiff when one has a great deal of pain. He stated that plaintiff bent forward to about eighty degrees, which is not quite normal; that plaintiff had some tremors in his hands which he attributed to plaintiff's nervousness; that this tremor to the hands could not have been caused by an injury to the back except mentally; that there is no mechanism that goes from the back to the brain and back down again to cause a tremor to the hand; that it is a mental factor. Dr. Murphy's X-rays of the plaintiff's back were negative except for an old compression of the first lumbar vertebra which was a result of an old injury. Dr. Murphy concluded that plaintiff could be having some discomfort in his back, but as to how long it would persist Dr. Murphy did not know. Dr. Murphy stated: "I don't believe it will persist permanently, I believe he will have periods of relief in which he has no pain, and periods of exacerbation in which he will have some pain." Viewing his own X-ray of the plaintiff's lower lumbar vertebrae in the lateral view, Dr. Murphy testified to a diminution in the space between the first lumbar and twelfth dorsal vertebrae which indicated a compression. Viewing his own X-ray of plaintiff's lumbar vertebrae in the anterior-posterior view, Dr. Murphy testified that there was some calcification between the twelfth dorsal and the first lumbar vertebrae. Dr. Murphy stated you might argue that there is a "very, very little" showing of calcification or arthritic change on the body of the fourth vertebra; that it was so minute he could not say whether it existed or not. Viewing the two X-rays of the plaintiff's back taken by Dr. Levey on April 20, 1949, Dr. Murphy testified that there was no difference between those X-rays and the ones that he had taken in his own office on September 21, 1949; that the only indication of any arthritic changes in Dr. Levey's X-rays appears in the twelfth dorsal and the first lumbar vertebrae.
Mrs. Ruth Stewart, plaintiff's sister-in-law, testified that prior to April 14, 1949, plaintiff was very active. She further testified that after April 14, 1949, "often during the night when I would hear him tossing in there, I would open the door and say, `Are you in pain?' He would say, `yes.' Then he would say, `I took my sedative and that is all I can do, I have to wait for it to take effect.' I would ask him if I could help him in any way and he would say, `I just have to wait for the sedative to take effect.' That happened on several occasions, on any number. * * * His knees do a tremble and things like that. He walks slower and looks older."
Mr. W. F. Dudley, a fellow employee with plaintiff at the Union Automobile Club, testified that he first became acquainted with plaintiff about the middle of March, 1949; that from then to April 14, 1949, he saw plaintiff at least once a week; that prior to April 14, 1949, plaintiff was very active and worked regularly as a salesman, but since said date the few times he had observed plaintiff the latter was moving around very slowly and could not work.
Mr. G. A. Hopkins, onetime fellow salesman of the plaintiff at the Union Automobile Club, testified that he saw plaintiff about twelve times in the office of the Union Automobile Club before April 14, 1949, at which times plaintiff was very active, and that he had seen plaintiff since that date and observed that he was very feeble in getting around.
Appellant advances two theories in support of its contention that its motion for a directed verdict should have been sustained. First, that from the evidence adduced it cannot be determined, without resort to speculation, that plaintiff's injuries were the result of defendant's acts rather than the proximate result of the previous accident which plaintiff sustained on January 24, 1948; and second, that, considering all the evidence in the case, it appears there was no such violent jolt or impact at the time in question as would cause plaintiff to be thrown about and injured, as claimed.
It is our opinion that neither of appellant's above mentioned contentions can be sustained. The medical evidence clearly shows that plaintiff had an arthritic condition present in his back and spine which had existed for a long period of time prior to April 14, 1949. It is also clear from the evidence that when plaintiff was examined by Dr. Michael, the day after the accident, plaintiff was suffering from an aggravation of this pre-existing arthritic condition. Dr. Michael found objective symptoms such as muscle spasms and localized tenderness in the area complained of which corroborated plaintiff's testimony that he suffered severe pain in the lower part of his back. Dr. Michael also gave it as his opinion that plaintiff was, at the time he examined him, suffering from an aggravation of a pre-existing arthritic condition.
The medical testimony was also to the effect that an arthritic condition such as plaintiff had could be activated and aggravated by trauma. Plaintiff's testimony was that he was thrown about in the bus on the occasion in question and did sustain severe blows to various parts of his body, including the lower portion of his back above the waist line. Plaintiff's testimony further shows that prior to the accident he was not bothered or disabled by the arthritic condition in his spine, but that immediately after the accident he suffered severe pain in the lower portion of his back and complained of other symptoms which had persisted and which rendered him totally disabled. There was testimony given by other witnesses that prior to the accident plaintiff was active and able to carry on his business, but that after the accident he complained of pain and was unable to work.
The fact that the testimony of plaintiff, wherein he denied having suffered any previous accident and injury, was shown to be false, is a circumstance which the jury had a right to consider in weighing the evidence and passing on the credibility of plaintiff's testimony. We cannot, as appellant contends, rule that this evidence nullified the probative value of the whole of plaintiff's testimony and made the issue of proximate cause rest in speculation and conjecture. Nor can we rule that the motion for directed verdict should have been sustained for the reason that defendant's witnesses gave testimony to the effect that there was no such violent jolt or impact at the time in question as would cause plaintiff to be thrown about as claimed. Plaintiff's evidence was contra, and in passing on the question here presented we must accept his evidence as true. We hold the court did not err in submitting the case to the jury.
Nor did the court err in permitting plaintiff to testify concerning the amount of his earnings at the Union Automobile Club where he was employed on a commission basis for about six weeks prior to the accident. The objection urged is that such testimony was too speculative and conjectural to prove loss of earnings. The evidence objected to was part of the proof offered by plaintiff on the issue of lost earnings.
Plaintiff testified, without objection, that he had been previously employed by the Prudential Insurance Company for fifteen years at a salary of sixty-five dollars a week, plus commission, which gave him earnings of approximately $4800 a year. Thereafter, he worked for two weeks at Sears-Roebuck Company at a guaranteed salary of $65 per week, plus an over-write on all electrical merchandise that went out of the store. Plaintiff was then permitted to testify, over defendant's objection, that his earnings while working for the Union Automobile Club for the six weeks' period of his employment averaged approximately $185 per week.
There are numerous decisions which hold that in suits for personal injuries the plaintiff may recover damages on account of loss of earnings or profits in his business, and as evidence thereof may show his earnings or profits before and after the injury. Ganz v. Metropolitan Street Ry. Co., Mo.Sup., 220 S.W. 490; Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W.2d 30; Northcutt v. St. Louis Public Service Co., Mo.App., 48 S.W.2d 89; Laycock v. United Railways Co. of St. Louis, 290 Mo. 344, 235 S.W. 91. In said cases the evidence was held admissible over the objection that it was speculative — the point urged here by appellant. Nor does the fact that plaintiff was employed for only six weeks call for a different rule. Such fact might lessen the value of the evidence as a guide to the jury in determining the issue, but it should not render the evidence inadmissible. It was proper evidence for the jury's consideration and they were at liberty to give it such value and weight as in their judgment it deserved.
Appellant next complains of Instruction No. 8, which was plaintiff's instruction on the measure of damages. Said instruction submitted loss of earnings as an element of damage to be considered by the jury. The point made is that there was no competent evidence in the case regarding the actual earnings which plaintiff lost. Since we have held that plaintiff's evidence concerning his earnings at the Union Automobile Club was competent and admissible, it necessarily follows that there is no merit to appellant's complaint with reference to said instruction.
Appellant's final contention is that Instruction No. 8 was erroneous because it submitted lost earnings as an element of damages under a petition which sought damages for impairment of plaintiff's capacity to labor. The petition alleged: " That prior to receiving said injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning the sum of One Hundred Eighty-five Dollars, ($185.00) per week in earnings and wages; that by reason of said injuries he has been rendered incapable of working and earning his livelihood and has lost his earnings since the date of receiving his said injuries and his ability to work and earn wages in the future has been permanently impaired, limited and destroyed." (Emphasis ours.)
We find no merit to the point raised by appellant with reference to the above mentioned instruction. We believe that under the foregoing allegations it was proper to submit to the jury the loss of earnings as an element of plaintiff's damage. See Bach v. Diekroeger, Mo.App., 184 S.W.2d 755.
The judgment appealed from is affirmed.
McCULLEN and HOUSER, JJ., concur.