Opinion
No. 39834.
December 9, 1946. Rehearing Denied, January 13, 1947.
1. APPEAL AND ERROR: Assignments Abandoned. Assignments which are neither briefed nor argued are deemed abandoned.
2. NEGLIGENCE: Streetcar Violating Speed Ordinance: Instruction Not Erroneous. The instruction on the Kansas City ordinance limiting the speed of streetcars did not make defendant an insurer of the safety of pedestrians.
3. NEGLIGENCE: Municipal Corporations: Statutes: Kansas City Streetcar Ordinances: Ordinances Not in Conflict: Earlier Ordinance Not Repealed. A Kansas City ordinance limiting the speed of streetcars to 15 miles per hour in a defined congested district was not in conflict with a subsequent ordinance which limited such speed to 25 miles per hour in a defined business district, so the later ordinance did not repeal by implication the earlier one.
4. DAMAGES: Injury to Minor Child: Loss by Parents: Instruction Limited to Minority. An instruction on the measure of damages in an action brought by the parents of a minor child for loss of services due to injuries was properly limited to the minority of the child.
5. DAMAGES: Use of Word "May" Not Misleading. The use of the word "may" in an instruction on the measure of damages for the loss of the services of a minor child was not misleading.
6. DAMAGES: Future Medical Treatment: Not Too Speculative. An instruction allowing as an element of damages future medical treatment which might be necessarily incurred by a small child during her minority as a result of injuries was based on evidence and was not too speculative.
7. DAMAGES: Loss of Future Earnings: Double Assessment Not Permitted. An instruction which allowed plaintiff parents loss of future earnings of their injured child during minority did not permit a double assessment, as plaintiffs were entitled to an award covering loss of both earnings and services.
8. TRIAL: Sympathy of Jury Not Improperly Aroused: Discretion of Trial Court Not Abused. The sympathy of the jury was not improperly aroused by an emotional opening statement, an argument to the jury, and a crying child. Nor does it sufficiently appear that the trial court abused its discretion in permitting a mutilated child to be kept in the courtroom during a trial lasting several days.
9. DAMAGES: Judgment Not Excessive. A judgment of $12,000, having been reduced by the trial judge from $20,000, was not excessive for the loss of earnings and services and other losses resulting to plaintiff parents from the amputation of the leg of their minor child.
Appeal from Jackson Circuit Court. — Hon. John R. James, Judge.
AFFIRMED.
Charles L. Carr, John T. Harding, R. Carter Tucker, John Murphy and William H. Wilson for appellant.
(1) The court erred in giving plaintiffs' Instruction One: The instruction erroneously misdirected the jury by submitting the so-called fifteen-mile speed ordinance, Chapter 61, Section 3, Revised Ordinances 1941, which appellant submits was not the law, said section having been incorporated in the revision of the traffic ordinance through error, though same had been repealed. (2) That said fifteen-mile speed ordinance, Chapter 61, Section 3, Ordinances of 1941 (No. 7100), which was erroneously included and had been repealed, was in direct conflict with Sections 11-38.3, 11-4, Subhead H; 11-1, and other subdivisions of said Section 11 of Ordinance 7100, in force and effect in Kansas City, Missouri, on the day of the accident, and authorizing a speed of twenty-five miles per hour upon said Twelfth Street at said time and place, by reason of which the jury was misdirected as to the authorized speed in effect. Fish v. Walsh, 154 N.E. 148, 323 Ill. 359; City of Chicago v. Degitis, 48 N.E.2d 930, 383 Ill. 171; Robertson v. State, 159 S.W. 713; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435. (3) Said instruction was erroneous because it made defendant an insurer. Clardy v. Kansas City Pub. Serv. Co., 42 S.W.2d 370, 227 Mo. App. 749. (4) The court erred in giving plaintiffs' Instruction Two: The instruction was erroneous and misleading and failed to direct the jury that any damages assessed and allowed to plaintiffs for loss of services of their daughter should be limited to the period until she attained her majority; the instruction as given was contrary to law and gave the jury a roving commission to consider loss of services from the daughter beyond her majority. Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326. (5) The instruction erroneously authorized the jury to assess damages for plaintiffs in such sum as "will be fair and reasonable pecuniary compensation to them for whatever damages resulting in loss of services of their daughter they may have sustained by reason of injury," because the word "may" does not sufficiently carry the idea of reasonable certainty and authorizes and invites the jury to speculate and guess, and gives the jury a roving commission, all to the prejudice of defendant. Evans v. Farmers Elevator Co., 147 S.W.2d 593; Krinard v. Westerman, 216 S.W. 938, 279 Mo. 680. (6) Instruction Two further misdirected the jury in that it improperly and erroneously authorized the jury to allow plaintiffs "the reasonable value of any medical or hospital treatment, if any, of any kind whatsoever which you may find and believe from the evidence will necessarily be incurred by the plaintiffs for treatment of their said daughter until she reaches the age of twenty-one years," because in the entire transcript there is no evidence or proof that any future medical or hospital care, treatment or surgery will be required before the child attains her majority, by reason of which the jury was misdirected, was given a general roving commission and invited to base a verdict on conjecture and speculation, all to the prejudice of this defendant and over its objections and exceptions. Noe v. Thompson, 173 S.W.2d 896; Seago v. New York Central Ry. Co., 155 S.W.2d 126, 348 Mo. 761; Rothe v. Hull, 180 S.W.2d 7, 352 Mo. 926; Budd v. Budd, 97 S.W.2d 149; Bante v. Wells, 34 S.W.2d 980. (7) Instruction Two further misdirected the jury and improperly and erroneously authorized the jury to award plaintiffs "the amount of earnings of daughter which you believe and find from the evidence she will necessarily lose, until she reaches the age of 21 years," etc.; because the daughter's potential loss of earnings is not necessarily the same as the plaintiffs', and because said instruction is broader than the pleadings or the evidence and proof, and gives the jury a roving commission to speculate and guess, all to the prejudice of this defendant. Schmitz v. St. Louis, I.M. S. Ry. Co., 46 Mo. App. 380. (8) The court erred in refusing to grant defendant a new trial because the verdict was grossly excessive and not supported by the evidence and the judgment after remittitur was still very excessive; that the verdict is so excessive as to show the jury was dominated by sympathy for plaintiffs and returned a verdict based on sympathy for plaintiffs which was highly prejudicial to defendant and to all of which defendant, this appellant, objected and excepted. Bryant v. Kansas City Rys. Co., 217 S.W. 632; Meeker v. Union Electric L. P. Co., 216 S.W. 933, 279 Mo. 574; Godfrey v. Kansas City P. L. Co., 247 S.W. 451; Williams v. Fleming, 267 S.W. 6, 218 Mo. App. 563; Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52; Lange v. Mo. Pacific Railroad, 91 S.W. 989, 115 Mo. App. 582; Samples v. Kansas City Rys. Co., 232 S.W. 1049; Speakman v. Kurn, 115 S.W.2d 185; Ponticello v. Lilliensiek, 83 S.W.2d 150; Kemp v. Doe Run Lead Co., 57 S.W.2d 758; McFetridge v. Kurn, 125 S.W.2d 912; Marx v. Parks, 39 S.W.2d 570. (9) The court erred in refusing to declare a mistrial in this cause when during his opening statement to the jury plaintiffs' counsel went into prejudicial and minute detail of alleged injuries and suffering of the plaintiffs' minor daughter, which were not relevant to the issues in plaintiffs' loss of service case and were not items upon which any recovery could be based, but appealed to the emotions of and inflamed the jury and aroused great sympathy for the child and her parents. Chawkley v. Wabash Ry. Co., 297 S.W. 20, 317 Mo. 782; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W.2d 607, 353 Mo. 458; O'Hara v. Lamb Construction Co., 197 S.W. 163; Haake v. Dulle Mill Co., 153 S.W. 74, 168 Mo. App. 177. (10) The court erred in admitting in evidence over defendant's objection Chapter 61, Section 3, Revised Ordinances of Kansas City, Missouri, 1941, also referred to as Chapter 61, Section 3, Ordinance Number 7100, entitled "Speed of Street Cars," and purporting to limit the speed of street cars to fifteen miles per hour, because said Section 61-3 of the ordinance was not the law, having been erroneously included in the general revision of the Traffic Code and Ordinances of 1941. Fish v. Walsh, 154 N.E. 148, 323 Ill. 359; City of Chicago v. Degitis, 48 N.E.2d 930, 383 Ill. 171; Robertson v. State, 159 S.W. 713; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435; State ex rel. Attorney General v. Heidorn, 74 Mo. 410; St. Louis v. Kellman, 139 S.W. 443, 235 Mo. 687. (11) The court erred in excluding from evidence Section 98, Ordinance 6312 of Kansas City, Missouri, which specifically repealed all the ordinances or parts of ordinances in conflict with Ordinance No. 6312, thereby repealing and nullifying Section 638 of Ordinance 56134, known as the Fifteen Mile Ordinance, by reason of which the jury was caused to be misdirected and this appellant was prejudiced. Same authorities as Point (10). (12) The court erred in excluding from evidence Section 11-38.1 of Ordinance 7100, (b) Section 11-38.3 of Ordinance 7100 of Kansas City, Missouri, (c) Section 11-1, "Defining Business Districts," (d) Section 11-4, sub-head H, of Ordinance 7100 of Kansas City, Missouri, for the reason that said subsections of Ordinance 7100 of Kansas City, Missouri, were in truth and fact the controlling ordinance governing and regulating the speed and operation of streetcars on Twelfth Street at the time and place in question and authorized a speed of twenty-five miles per hour by streetcars. Same citations as Point (10). (13) The court erred to the prejudice of the defendant in overruling defendant's motion to exclude the plaintiffs' young daughter from the courtroom during the trial as she was not a party to the suit and her continued presence could only serve to arouse sympathy for the plaintiffs. Bryant v. Kansas City Rys., 228 S.W. 472, 282 Mo. 342; Riepe v. Green, 65 S.W.2d 667. (14) The defendant was greatly prejudiced and sympathy was created in favor of the plaintiffs when the young child witness, Deloris Frakes, was placed on the stand as a witness and in the presence of the jury in the course of her testimony cried. Pearson v. Kansas City, 78 S.W.2d 81, 331 Mo. 885. (15) The court erred in denying defendant a new trial in this case because on the record as a whole it would appear that the jury became highly sympathetic with plaintiffs and prejudiced against defendant so that defendant was deprived of a fair and impartial trial; that the verdict of the jury was grossly excessive under the evidence in this case and wholly out of line and excessive when compared with comparable cases and rulings of the courts of this state; the excessive verdict reflects sympathy for the plaintiff.
Gilbert R. Titus, William F. Knowles, Paul C. Sprinkle and Sprinkle Knowles for respondents.
(1) The court did not err in giving plaintiffs' Instruction 1 because the instruction referred to ordinances which were in full force and effect and because the instruction did not make the defendant an insurer. Clardy v. Kansas City Pub. Serv. Co., 42 S.W.2d 370, 227 Mo. App. 749; Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 653. (2) The court did not err in giving plaintiffs' Instruction 2. Meeker v. Union Electric L. P. Co., 216 S.W. 933, 279 Mo. 574. Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326; Grubbs v. Kansas City Pub. Serv. Co., 45 S.W.2d 71, 329 Mo. 390; Kirk v. Kansas City Term. Ry. Co., 27 S.W.2d 739; Curtis v. Indemnity Co. of America, 37 S.W.2d 616, 327 Mo. 350; Boyd v. Andrae, 44 S.W.2d 891; Wolfe v. Kansas City, 68 S.W.2d 821, 334 Mo. 796; Page v. Payne, 240 S.W. 156, 293 Mo. 600. (3) The verdict of the jury was not excessive and the final judgment of $12,000 is not excessive. Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 653; Meeker v. Union Electric L. P. Co., 216 S.W. 923, 279 Mo. 574; Scanlon v. Kansas City, 81 S.W.2d 939, 336 Mo. 1058; O'Brien v. Vandalia Bus Lines, 173 S.W.2d 76, 351 Mo. 500; Jones v. Pa. R. Co., 182 S.W.2d 157; Schaefer v. Transamerican Freight Lines, 173 S.W.2d 20; Wright v. Spieldoch, 193 S.W.2d 42; Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 153; Lankford v. Thompson, 189 S.W.2d 217; Joice v. Railroad Co., 189 S.W.2d 568. (4) The court did not err in permitting counsel for the respondent to detail the injuries of the injured child nor in referring to the condition of the child in the closing argument. Cordray v. City of Brookfield, 88 S.W.2d 161; Kelley v. Ill. Central R. Co., 177 S.W.2d 435, 352 Mo. 301. (5) The court did not err in admitting evidence with respect to the 15 miles speed ordinance regulating streetcars. (6) The court did not err in excluding evidence with respect to Ordinance 6312. (7) The court did not err in excluding certain sections of Ordinance 7100 defining business districts. (8) The court did not err in refusing to exclude the respondents' daughter from the court room. (9) The court did not err because the witness cried upon the stand. (10) The court did not err in denying the appellant a new trial. Petty v. Kansas City Public Service Co., 191 S.W.2d 653.
This is an action by James Roy Petty and his wife for loss of services, the cost of artificial limbs, special training, care and attention and doctor and hospital bills resulting from the appellant's negligence in running over their minor daughter, Ruth Viola. At the time of her injury, February 1, 1943, Ruth Viola was three years of age. She sustained other injuries (Petty v. Kansas City Pub. Ser. Co., 354 Mo. 823, 191 S.W.2d 653) but the plaintiffs' principal losses are due to the fact that her left leg was amputated about three inches below the knee.
As a preliminary it may be noted that the appellant assigns as error the refusal of its motions for a directed verdict at the close of the plaintiffs' evidence and at the close of all the evidence and the action of the trial court in admitting in evidence a $295.00 bill from the Kansas City General Hospital. The appellant does not indicate why the motions should have been sustained. In addition, these three assignments are neither briefed nor argued and, for the purposes of this appeal, are abandoned. Supreme Court Rule 1.08; Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 1169, 88 S.W.2d 368, 372; Evans v. Farmers Elevator Co., 347 Mo. 326, 330, 147 S.W.2d 593, 594.
The plaintiffs' case was submitted upon the hypothesization of a violation of three ordinances of Kansas City. The appellant contends that the court erred in admitting one of the ordinances in evidence and in excluding as evidence two ordinances offered by it. It also urges that the instruction submitting the plaintiffs' case was prejudicially erroneous because one of the ordinances relied upon had been repealed, was in direct conflict with the ordinances offered by the appellant and was erroneously included in the traffic ordinances of Kansas City. It is further objected that the instruction erroneously makes the appellant an insurer of the safety of pedestrians.
As to the latter point, the argument is that because the instruction told the jury that the ordinances relied upon were in force and in reciting the substance of their provisions, among other things, said that under the ordinances the streetcar should not be operated, at such speed that the operator could not decrease it or stop the streetcar when necessary to avoid colliding with a person and then told the jury that if they found that the streetcar was operated at such speed that it could not be decreased or the streetcar stopped in time to avoid hitting the plaintiffs' daughter that thereby the appellant is made an insurer. It is not contended that the instruction in express language makes the appellant an insurer but it is argued that the language "could be interpreted by a jury of laymen to mean that regardless of the speed of the streetcar, if there were a collision with the plaintiffs' daughter the defendant was liable." The appellant says, under this instruction, that even though the streetcar could have been stopped in the shortest time and space possible yet if it struck the child the appellant would be liable. In the first place, in making its point, the appellant has separated two clauses from the context of a long instruction. Grubbs v. Kansas City Pub. Ser. Co., 329 Mo. 390, 45 S.W.2d 71. In the second place, the instruction is not comparable in language or effect to the one in Clardy v. Kansas City Pub. Ser. Co., 227 Mo. App. 749, 752, 42 S.W.2d 370, 371-372. Here the instruction correctly advises the jury of the substance and legal effect of the ordinances and hypothesizes the facts which the jury is required to find as constituting negligence and a violation of the [686] ordinances. Petty v. Kansas City Pub. Ser. Co., 354 Mo. 823, 191 S.W.2d l.c. 657. The instruction is long and rather involved and though possibly subject to the appellant's rather strained construction does not in fact make the appellant an insurer as appellant's instructions positively advised the jury.
Whether one of the ordinances was repealed is decisive of whether the instruction was erroneous as well as whether the court was in error in admitting it in evidence and in excluding the appellant's proffered ordinances. The respondents pleaded, offered in evidence and instructed upon Chapter 63, Section 3 of the 1941 Revised Ordinances of Kansas City, known in this record as Ordinance 7100 and particularly as Section 638 of the Traffic Code of 1928. This section was enacted as an ordinance in 1928 and provides that a streetcar shall not be run "at a greater rate of speed than fifteen miles per hour in the congested district" (defined as that portion of the city lying north of the south line of 19th Street and west of the east line of Troost) "nor more than twenty-five miles per hour in the noncongested district of the city." In 1940 a further traffic ordinance, No. 6312, was enacted and that ordinance was also included in the 1941 Revised Ordinances as a part of Ordinance 7100 and provides that a streetcar may not be operated "at a greater speed than is reasonable" and "in any residence or business district" (territory contiguous to a highway when fifty per cent or more of the frontage for a distance of 300 feet is occupied by buildings in use for business) "may be operated at a speed of twenty-five miles per hour." It is the position of the appellant that the ordinance enacted in 1940 (the appellant offered the original ordinances) repealed the ordinance enacted in 1928 and, therefore, Ordinance 638 was included in the revised ordinances through error.
The appellant says: "There could not be two speed limits for street cars in business districts, one of fifteen miles per hour and one at twenty-five miles per hour." It is argued that they are in direct conflict and, therefore, the later ordinance repealed the older one. Of course, if this is true, it was error to admit the ordinance in evidence and instruct the jury upon it. However, as the appellant concedes, the older ordinance was not repealed by number or in express terms by the later ordinance. If it had been it would not have been revived by inserting it in the new code without reenacting it and it is in this that the case differs from Fish v. Walsh, 323 Ill. 359, 154 N.E. 148 and City of Chicago v. Degitis, 383 Ill. 171, 48 N.E.2d 930. As the appellant argues, a mere revision of existing laws or ordinances into a code does not make the code a new law but only continues the former law and so, if there is a conflict between two provisions of the code a new or later section repeals the older. State ex rel. Attorney General v. Heidorn, 74 Mo. 410; City of St. Louis v. Kellman, 235 Mo. 687, 139 S.W. 443. But, in this situation, repeals by implication may only be found when there is conflict and the two laws or ordinances are irreconcilably inconsistent. 37 Am. Jur., Sec. 198; 2 McQuillin, Municipal Corporations, Secs. 875, 879. Here, there is no conflict in the ordinance's speed limit of fifteen miles an hour "in the (defined) congested district" and a reasonable speed up to twenty-five miles an hour in the defined "business district." The older ordinance merely carves a "congested district" out of a "business district" and there is no irreconcilable conflict. City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.W. 1045. The accident occurred at 12th and Harrison Streets, within a congested district, and there was no error in admitting the older ordinance (as it appeared in the 1941 Code) in evidence and instructing upon it to the exclusion of ordinances which the appellant claims repealed it by implication.
The appellant also urges that the court prejudicially erred in four respects in instructing the jury upon the measure of damages. It is urged that the instruction fails to limit the plaintiffs' recoverable losses to the period of Ruth Viola's minority; that the use of the word "may" in describing the plaintiffs' recoverable pecuniary compensation does not delimit with certainty the damages awardable; that future medical and hospital expenses "necessarily" incurred were authorized by the instruction [687] when there was no proof to support such an allowance and, fourth, that the instruction erroneously permitted an allowance to the plaintiffs of the amount of earnings the child would necessarily lose until she reached her majority when the child's potential loss was not necessarily the same as the plaintiffs and, in this respect, it is also urged that the instruction is broader than the pleadings and proof and gives the jury a roving commission.
In presenting the first point, however, the appellant quotes only the first clause of the instruction, separating the clause from its context. In three different places the instruction limits the plaintiffs' recovery to the period "until she reaches the age of twenty-one years" and if the appellant thought the instruction too broad or subject to misinterpretation should have offered an instruction limiting its effect. Kirk v. Kansas City Ter. Ry. Co. (Mo. App.), 27 S.W.2d 739. Considering the instruction as a whole the appellant's criticism is unwarranted. Grubbs v. Kansas City Pub. Ser. Co., supra.
So it is with the objection to the use of the word "may" in describing the pecuniary compensation allowable for loss of services, the word carries the possible connotation of bare possibility and its use has been criticized (Evans v. Farmers Elevator Co., 347 Mo. l.c. 341, 147 S.W.2d l.c. 601) but up to the present we have failed to find a case holding its use reversible error, especially so when the whole instruction is considered and the use of the word in its context does not appear to have positively misled the jury. Krinard v. Westerman, 279 Mo. 680, 698, 216 S.W. 938, 943.
The instruction authorized as an element of damages "the reasonable value of any medical or hospital treatment . . . necessarily . . . incurred" until Ruth Viola reached her majority. The appellant emphasizes the word "necessarily" and insists that there was no evidence that future medical and hospital expense would necessarily be incurred and that, therefore, the jury was invited to base a verdict on speculation and conjecture. However, the doctor stated that the bones in the stump "might have to be readjusted often." Furthermore, in addition to the amputated leg, there was a long scar down Ruth Viola's right thigh extending over the knee. The doctor said that the scar contracted when the leg was straight, he could not say definitely whether there would be future contracting of the scar as the child grew but he said that the only way to remove the scar, and inferentially any future disability from it, was by plastic surgery. It may be that this evidence does not show that further medical and hospital expense would "necessarily" be incurred in the sense of not being capable of being dispensed with or indispensable (Boyd v. Andrae (Mo. App.), 44 S.W.2d 891, 894) but it is evidence from which the jury could find that such future expense was necessary in the sense of being needful and so we cannot say that there was such a lack of evidence that it was erroneous to include it as an element which "will necessarily be incurred." While the items are not definitely certain, they are not left wholly to conjecture and specualtion.
The appellant's fourth point, as we understand it, is that in the beginning the instruction permitted the plaintiffs' damages for "loss of service of their daughter" and subsequently said "you in addition may also allow the plaintiffs the amount of earnings of the daughter which you believe and find from the evidence she will necessarily lose until she reaches the age of twenty-one years." It is said that this language authorizes a double assessment for loss of earnings, that the child's potential loss is not necessarily the same as the parents and finally that there is no evidence that the child would lose earnings. As to the latter point, the doctor said that the child could not engage in industry or labor during minority, which the appellant argues leaves open to her numerous sedentary occupations which if she follows will not result in a loss of earnings. It is argued that the word "service" in the beginning of the instruction is not defined or limited and that if the word means "both loss of direct personal service to the parents and also loss of earnings to the child" then a double assessment for one loss is permitted. We do not believe the quoted clauses are reasonably subject to the interpretation the appellant [688] places upon them. These clauses of the instruction, as we construe them, permit an award for loss of the child's services and any loss of earnings due to the child's injury during minority. Annotation 37 A.L.R. 11, 15. "The loss of earning capacity in a minor during minority is a loss to his parents who are entitled to both his services and his earnings." Evans v. Farmers Elevator Co., 347 Mo. 326, 341, 147 S.W.2d 593, 601. It is true that there is no direct evidence of any sums the child would or could earn during minority or of any specific occupations the child could or would not follow but these matters are not susceptible of direct proof. The child was three and one half years of age at the time of her injury and, of course, had never earned anything or performed any services for her parents. In this situation we have only the child's age, her previous physical condition and her present condition and in these circumstances the jury may only consider these facts in the light of their personal knowledge and experience in arriving at any lost services or earning capacity during minority. Meeker v. Union Electric L. P. Co., 216 S.W. 933, 934. A contrary view is indicated by Schmitz v. St. Louis, I.M. S. Ry. Co., 46 Mo. App. 380 but, as was pointed out in Blackwell v. Hill, 76 Mo. App. 46, the courts have not adopted or followed the Schmitz case on this point. In conclusion on this point, it cannot be said, considering the instruction as a whole, that it contains errors so prejudicial to the appellant as to materially affect the merits of the action. Civil Code of Mo., Secs. 123, 140(b); Baxter v. St. Louis Transit Co., 103 Mo. App. 597, 609-612, 78 S.W. 70, 73-74; Meeker v. Union Electric L. P. Co., supra; Blackwell v. Hill, supra.
Four of the appellant's assignments having to do with matters occurring during the trial of the cause, which the appellant claims were so prejudicially inflammatory that it was deprived of a fair trial, may all be considered together. There is a general assignment that upon the whole record the jury became unduly sympathetic with the plaintiffs and prejudiced against the appellant. In this connection, in his opening statement, plaintiffs' counsel described the manner in which Ruth Viola was injured and detailed the nature of her injuries. In his closing argument counsel pointed out the extra care and assistance required of the parents by reason of the child's artificial leg and said: "There is a child that when she starts across the street they must assist her. There is a child they will have to remember when she goes to bed at night. They must take the leg off and lay it one place and place the child in bed at another place." When the child was run over she was accompanied by her aunt, Deloris Frakes, who at the time of the trial was twelve years of age. Deloris was offered as a witness and at the beginning of her testimony cried when asked about the accident. At the time the court said: "Of course, she has been crying rather vigorously here when asked about the accident, but I do not see how it can be controlled very well at her age." At the commencement of the trial the appellant objected to Ruth Viola's presence in the courtroom and again, on the second day of the trial renewed its objection stating that her presence, sleeping in her mother's arms and lap and moving about in the presence of the jury unduly aroused the jury's sympathy. When the question first arose the court made some inquiry into the situation and stated that it was impractical under the circumstances to exclude the child.
Counsel's statement and argument to the jury and Deloris' crying were not so inflammatory as the similar occurrences in the child's case. Petty v. Kansas City Pub. Ser. Co., 354 Mo. 823, 191 S.W.2d l.c. 658. The argument and emotional demonstrations here are not comparable to the argument and incidents in Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Walsh v. Terminal Ry. Co., 353 Mo. 458, 182 S.W.2d 607. The trial court considered these matters and we cannot say that they were so obviously and unduly prejudicial that the court abused its discretion in not discharging the jury or in not granting a new trial. Kelley v. Illinois Central R. Co., 352 Mo. 301, 177 S.W.2d 435; Borrson v. M. [689]-K.-T. Ry. Co., 161 S.W.2d 227, 232; Cordray v. City of Brookfield (Mo.), 88 S.W.2d 161. Ruth Viola was not a party to this suit, neither was she a witness and so, while there is an analogy in the cases dealing with the problems of the exclusion or sequestration of witnesses and parties, (6 Wigmore, Evidence, Secs. 1837-1841; Bryant v. Kansas City, 286 Mo. 342, 228 S.W. 472) they are not necessarily identical with the question presented here. Here Ruth Viola's presence was not necessary either as a party or as a witness and, as far as necessity is concerned, was solely for the personal convenience of the plaintiffs or as the trial court said, it was impractical under the circumstances to exclude her. If the child's presence, either temporarily or continuously, tended to unduly and unnecessarily arouse the jury's sympathy or prejudice she should have been excluded from the courtroom. 64 C.J., Sec. 65. On the other hand, and we express no opinion on the subject at this time as she was not exhibited as evidence, it may be that the jury should see the child and thus have some idea of the future care required of the parents and of her future ability to earn. In this respect the fundamental problem may differ from the questions arising upon the presence or exclusion of the widow and children upon the trial of a wrongful death action or the presence of children at the trial of a parent's personal injury suit. Western Truck Lines v. Berry, 53 Ariz. 216, 87 P.2d 484; Louisville N.R.R. Co. v. Kelly, 19 Ky. L.R. 69, 38 S.W. 852. But, even though it be assumed that the jury could or should see the child, it does not necessarily follow that she should be permitted to remain in and about the courtroom for the duration of a three day trial in which she was neither a party nor a witness, especially so if there was likelihood of preventable emotional outbursts or the jury was likely to become unduly inflamed or prejudiced by reason of her presence. Some incidents or conditions naturally arouse a certain amount of sympathy and yet they cannot be held to constitute error, for example, exhibiting pictures of Ruth Viola's injuries in the other trial. Petty v. Kansas City Pub. Ser. Co., 354 Mo. 823, 191 S.W.2d l.c. 658. On the other hand, incidents, conduct or conditions not in same manner connected with the trial of the cause may be so inflammatory and prejudicial as to necessitate a new trial. 53 Am. Jur., Secs. 41-42, pp. 54-56. It may also be noted that in considering all these matters we are separating them from the context of a two and one half or three day trial and thus may over-emphasize or exaggerate their influence and effect. But, whether the child's continued presence in and about the courtroom unduly aroused the jury's sympathy and whether she should have been excluded is another matter, which, under the circumstances of this case, must be left to the discretion of the trial court and we cannot say upon this point and upon the whole record that the court abused its discretion. Stratton v. Nafziger Baking Co. (Mo. App.), 237 S.W. 538, 544-545; Annotation 131 A.L.R. 323.
Ten members of the jury returned a verdict for $20,000.00. Upon motion for new trial the court required a remittitur of $8,000.00 and judgment was entered for $12,000.00. The plaintiffs' hospital expense was $295.00 and they owed Dr. Petry $75.00. The first artificial leg and foot cost about $140.00. Throughout the years as the child grows it will be necessary to purchase new artificial legs every two or three years until age twelve and possibly not so often after that. The new legs will cost from $150.00 to $200.00. It is necessary to buy stockings for the stump rather frequently, the appellant estimates the maximum cost of the stump stockings at $380.00, and shoes on the artificial foot do not last as long as they do on her other foot. The appellant points to these items and contends that the verdict is yet excessive and not reasonably uniform with verdicts approved in similar cases, even conceding some change in economic conditions. Petty v. Kansas City Pub. Ser. Co., 354 Mo. 823, 191 S.W.2d l.c. 659. It is not necessary to again discuss in detail the allowable damages in this type case but the verdicts of $1,372.00 in Lange v. Missouri [690] Pac. R. Co., 115 Mo. App. 582, 91 S.W. 989, $3,350.00 in Samples v. Kansas City Rys. Co. (Mo. App.), 232 S.W. 1049, $4,000.00 in Williams v. Fleming, 218 Mo. App. 563, 267 S.W. 6 and $3,000.00 in Bryant v. Kansas City Rys. Co. (Mo. App.), 217 S.W. 632 do not necessarily mean that they represent maximum sums allowable or that verdicts in similar cases must conform to those cases. In Meeker v. Union Electric L. P. Co., 279 Mo. 574, 216 S.W. 933, a boy fourteen was horribly injured, possibly totally incapacitated and a verdict to his parents for loss of services for $9,500.00 was approved. In the unusual case of Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84 the court did not discuss the reasonableness of the $17,500.00 award for loss of services and expenses. But neither are these two cases necessarily controlling here. As the appellant concedes, the exact value of the child's services and the exact value of its earnings during minority cannot be accurately computed or proved and it is necessarily inherent in such cases that much must be left to the common sense, experience and judgment of the jury in the light of the few facts and data made available. This child, injured when she was three and one half years of age, will likely be totally incapacitated in a financial sense for most of her minority so far as earnings are concerned. Godfrey v. Kansas City L. P. Co., 213 Mo. App. 139, 247 S.W. 451, 456. The trial court considered and directly passed upon the excessiveness of the verdict when it required a remittitur of $8,000.00. Schaefer v. Transamerican Freight Lines (Mo.), 173 S.W.2d 20, 25. Considering all these circumstances we cannot say that the verdict is yet excessive.
The judgment is affirmed. Westhues and Bohling, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.