Certiorari to quash judgment of the St. Louis Court of Appeals.
This is an original action in this court to quash a .judgment entered by the St. Louis Court of Appeals affirming a judgment of the circuit court of St. Louis •city, in a case in which one Edward W. Nelson was respondent, and the United Railways Company (the relator herein) was appellant, for the alleged reason that •said Court of Appeals failed to follow the last previous ruling of this court, as required by section 6, article 6, Constitution of Missouri, as amended in the year 1884.
The particular issue upon which it is alleged that respondents, as such Court of Appeals, failed and refused to follow the last previous ruling of this court arose in this wise: The said Edward W. Nelson prosecuted an action in the circuit court of St. Louis City against the relator for personal injuries alleged to have been inflicted by or through the negligence of relator, in which action a judgment was entered in favor of *27■said Edward W. Nelson for $4200'. In the suit so prosecuted by said Nelson there was evidence tending to prove that he was confined to his bed three weeks, :and that he lost time from his work as a common laborer on account of his. injuries,-but there was no evidence as to what wages, if any, he had been receiving before his injuries, nor what his work was reasonably worth. The circuit court gave an instruction to the jury authorizing it to find for said Nelson for the time he had lost by reason of his alleged injuries. On appeal, •error was assigned by relator on account of the aforesaid instructions. In refusing to reverse the judgment •so rendered in favor of said Nelson, the relator asserts that said Court of Appeals failed to follow the ruling of this court in the cases of Slaughter v. Railroad, 116 Mo. 269, 274; Davidson v. Transit Co., 211 Mo. 320, 344, and Duke v. Railroad, 99 Mo. 347.
The instruction given by the circuit court, and which relator contends should have worked a reversal of the judgment obtained by said Nelson, reads as follows:
“The court instructs you that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and since receiving rthe injuries for which he sues (as shown by the evidence) his loss of time if any, and his physicial and mental anguish, if any suffered by him on account of his injuries at the time of and since such injuries (as shown by the evidence) and such damages, if any, as you may, from the evidence, find reasonably certain he will suffer in the future by reason of his injuries, and you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $10,000.”
(The italics are our own and are employed to the ■end of inviting attention to those words later in the opinion.)
*28The facts in said case of Nelson v. United Railways Co., and the reasons assigned by respondents for affirming the judgment of the circuit court in said cause, are set out in that part of their opinion which reads as follows:
“Plaintiff testified that he was in bed three weeks and four days and was unable to get out of the house until six weeks elapsed after his hurt. It appears, too, that he was unable to perform any bind of manual labor for a week thereafter. As above said, all of this evidence was received without objection on the part of defendant and, this being true, it was entirely proper for the court to submit the question arising thereon to the jury, though no claim was made in the. petition on that account. [See Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Loe v. Railroad Co., 57 Mo. App. 350.] The judgment is then not to be reversed for the reason a recovery was allowed as for loss of time in the past because not claimed in the petition, for it is clear that matter was waived by permitting the proof to be received without objection and is to be regarded as a mere immaterial variance under the statute. [Litton v. Railroad Co., 111 Mo. App. 140, 146.]
“In so far as the right to recover as for loss of earnings in the future is concerned, the petition expressly lays a claim for that and, of course, the evidence tends to prove it was properly received. By reference to the language of the instruction above set out, it will appear that it does not expressly direct the jury to consider plaintiff’s loss of time in the past but on the contrary authorizes a recovery alone for £his loss of time.’ See the words italicized in the instruction. But, of course, this authority to consider plaintiff’s loss of time as an element of damages is to be viewed as though the jury understood it to authorize a recovery for the time lost in the past as well as diminished earning power in the future. However this may be, the evidence of time lost as well as that *29tending to prove a diminished earning capacity was properly in, and the giving of the instruction as worded is not to he condemned’ for the mere failure to lay a claim in the petition for past loss of time.
“But it is argued though evidence was received as to the loss of time in the past and diminished earning power for the future, the court should not have submitted these elements of recovery to the jury for the reason no evidence Avas introduced tending to prove the value of plaintiff’s time. It is true nothing appears as to the amount plaintiff earned when employed and if the ease presented the feature of one following some particular calling touching the nature, character and compensation of which the jury were ’wholly unadvised, the argument would inhere with much force. It is not so, however, when it appears, as here, that the plaintiff’s calling is one of a character and kind which together with the usual compensation therefor is well known and understood by all fairly intelligent men in the community. In such cases, it is said the jurors in the box know something of the value of the time lost and the earning power diminished as well as the witnesses called to give testimony thereon. That plaintiff was employed at the time of his injury, the record reveals beyond question. Therefore, that his past loss of time was of value to him sufficiently appears. That his earning power was diminished for the future is not questioned, for the evidence amply reveals it, and then, too, it is said his injuries to the shoulder are permanent. While the amount of wages he received is not shown in the evidence, it appears that he was engaged in the capacity of a common laborer for a manufacturing company and had charge of hauling from the factory and loading on the cars ice cream cabinets for shipment. After his injury he engaged to work for a contractor in layr ing concrete, but was unable, because of his hurt, to perform the task assigned him and lost the place. It *30thus appearing that his occupation was that of common labor, almost any intelligent citizen, who employs common labor, is sufficiently familiar with the-value of the time of one so engaged to testify concerning it in court. This court has several times heretofore declared such to be true with respect to the competency of witnesses to speak on the question. [See Bogue v. Corwine, 80 Mo. App. 616, 620; Kelly v. Rowane, 33 Mo. App. 440.] The jurors as well as others, possess information touching this question and they know that the loss of time by and the diminished earning capacity of one engaged in common labor possesses some value for which a recovery should be allowed. Though it be that they are not informed as to the precise amount of the loss to be compensated and that a verdict therefor is not authorized without evidence tending to prove the value of the loss, it is certain that enough appears from the facts of employment, the injury and the loss of time as a consequence thereof to authorize a nominal recovery on that account. [See Mabrey v. Gravel Road Co., 92 Mo. App. 596; Jennings v. Appleman, 159 Mo. App. 12; Loe v. Railroad Co., 57 Mo. App. 350.] Therefore, the plaintiff’s instruction authorizing a recovery for ‘his loss of time’ is not to be condemned as without any warrant whatever in the evidence. It appears to-be well enough in its general scope, but, it may be defendant was entitled to have- the recovery on the score of loss of time and diminished earning capacity limited to that of nominal damages only. Though such be true, the judgment should not be reversed on account of plaintiff’s instruction, for it does not appear that defendant made any request whatever toward limiting the recovery on this account to nominal damages; [See Browning v. Ry. Co., 124 Mo. 55; Mabrey v. Gravel Road Co., 92 Mo. App. 596.]”
Respondents have filed herein their motion to-quash the preliminary writ issued in this cause on the *31following grounds: (1) That such writ was issued by a judge of this court in vacation, and not by the court in term time; and (2) that under the Constitution of this State this court is without power to review by certiorari and quash the judgment entered by respondents. Said motion was taken with the case.
OPINION.
^vacation. I. On the first point presented in this motion respondents cite State ex rel. v. Woodson, 161 Mo. 444; Newman v. Hammond, 46 Ind. 119; Reyburn v. Bassett, McCahon (Kan.), 86; Fisk v. Thorp, 51 Neb. 1; State v. Atherton, 19 Nev. 332; Constitution of Missouri, article 6, section 3.
The general purport of the cases above cited is-that when power is conferred by the Constitution or .statutes upon a court to perform specific acts, such acts cannot be. performed by the person, or persons, constituting the court at a time when such court is not in session.
On this point the relator cites the case of State ex rel. Macklin v. Rombauer, 104 Mo. 619, in which the rule is announced that under his combined powers-as a chancellor and at common law, a judge of this court in vacation may issue a temporary rule in prohibition returnable to and triable by the court when the same shall have been lawfully convened.
The power to exercise our superintending control over the courts of appeals by writs of certiorari is given to us by the same section of the Constitution (Art. 6, see. 8, Amendment of 1884) which authorizes-us to superintend such courts by prohibition. By analogy it seems that, if a judge of this court may lawfully issue a temporary rule in prohibition while the-court is not in session, by the same token he may law*32fully issue the writ of certiorari during vacation. Our Rule No. 25 seems to imply that such power exists. Therefore, the first insistence of respondents will be overruled.
power to Review by certiorari. II. On the second point in respondents’ motion to quash our preliminary writ is presented an argument far more ingenious and fervid than logical, in which we are invited to overturn the rules of law announced in our majority opinions in the cases of State ex rel. Curtis v. Broaddus et al., 238 Mo. 189; State ex rel. Evans v. Broaddus et al., 245 Mo. 123; and State ex rel. Iba v. Ellison et al., 256 Mo. 644. These cases will hereafter be referred to in this opinion as the Curtis, Evans and Iba cases.
In those cases we held, in effect at least, that it is just as much the duty of the courts of appeals to follow the last previous ruling of this court on questions of law and equity arising in cases pending before them, as it is to conform their proceedings to their jurisdictional limitations. In the. last named cases we also announced our power to quash judgments of courts of appeals where they refuse to follow the last previous rulings of this court.
Section 6, article 6, of the Amendment to our Constitution adopted in 1884 reads as follows:
“When any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pending the same term and not afterward, certify and transfer said canse or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by *33ordinary appellate process; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals.”
The above quoted section of our organic law was enacted to bring about uniformity in the rules of law and equity in all the appellate courts of this State. As no uniformity could be expected if each appellate court should be permitted to adopt its own construction of the law, it was ordained by a succeeding clause of the same amendment (See. 8, art. 6, Amendment 1884) that this court should have a superintending control over the courts of appeals by mandamus, prohibition and certiorari. No limits were fixed on such right to superintend, and we should not write á limitation into the Constitution-which its framers have not seen fit to place there.
The argument of respondents’ learned counsel to the effect that the courts of appeals may be supervised or superintended by this court when they exceed their jurisdiction, but cannot be supervised when they refuse to follow the last previous ruling of this court, is equivalent to saying that some of the provisions of our Constitution were intended to be obeyed, while the last provision of section 6, article 6, Amendment of 1884, was intended only as a joke, and may' be disobeyed at any time the courts of appeals see fit to disregard it. This insistence of respondents is unsound. The citizens of Missouri are one people, and" in furtherance of the spirit of another provision of the Constitution inhibiting local laws, it is their desire that the same rules of law shall prevail in all parts of the State' and in each court thereof.-
But, say respondents, unless we overrule the Curtis, Evans and Iba cases we must overrule the following decisions of this court: State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Bland, 168 Mo. 1; State *34ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 216 Mo. 336; and Missouri, Kansas & Texas Ry. Co. v. Smith, 154 Mo. 300.
We fully understand that situation, and, notwithstanding our high regard for the eminent jurists who fathered the decisions last cited, and our respect for their learning and judicial acumen, we are forced to take the Constitution as we find it — not necessarily as others have construed it. The Constitution is an instrument of such force that it perpetuates its own vitality, regardless of the number of times it be disobeyed. Past constructions of it, if correct, aid us in understanding its meaning, but erroneous interpretations of that instrument, however frequent and numerous, do not repeal its provisions or impair its virility. . •
Being fully convinced that the several cases last cited were incorrectly ruled, they are expressly overruled in so far as they conflict with the views expressed in the Curtis, Evans and Iba cases.
But, say respondents, the rule we have announced in the Curtis, Evans and Iba eases will force us to review by certiorari every case that may hereafter be adjudicated by our courts of appeals. This argument means that when a duty involves much labor it should be disregarded. We do not so understand the law, nor is that view in harmony with our official oaths. A few of the applications for certiorai i filed in this court would seem to support the pessimistic views of respondents’ learned attorneys, but the number of writs issued does not sustain such theory.
In speaking of our power to supervise the courts of appeals by 'certiorari, Lamm, C. J., in the Evans case (245 Mo. 1. c. 135), said: “That the power should be guardedly used with modest gentleness and always with circumspection argues nothing against its proper use. That its use is delicate and liable to abuse ar*35gues nothing against its nse when its nse is called for.”
By undertaking to make the rules of law and equity as announced by the courts of appeals conform to our own opinions it was never intended that the very language of the opinions of such courts of appeals should be made to harmonize with the decisions of this court as completely as the strings on a violin or the keys of instruments designed to transmit wireless messages. No such Utopian idea of judicial harmony can ever be hoped for. Before this court should quash by certiorari the judgment of one of the courts of appeals, the failure of such court of appeals to follow our last previous ruling should exist as a matter of real substance, and be so plain that no intelligent man with fair powers of discrimination would have difficulty in locating the conflict.
We may need rules which will require notice and an opportunity to be heard by written suggestions before writs of certiorari shall issue to quash judgments of our courts of appeals. If so, that is a mere matter of detail which does not detract from our jurisdiction to issue such writs.-
Instruction: Nondirection. III. Relator contends that as there is no evidence of the value of the time lost by Nelson, is was reversible error to- give to the jury the instruction herein-before quoted. Respondents assert that . . , the giving o± said instruction was not error, and that the affirmance of the Nelson judgment was not such a failure to follow the previous rulings of this court as to warrant us in quashing their judgment.
This raises, a question preliminary to the main •issue in the ease, to-wit: Shall we ascertain what the evidence was in the Nelson case by the statement thereof as prepared by the respondents and recited in their written opinion, or shall we-read and review the evi*36deuce in said Nelson case and ascertain if it has been correctly digested by respondents? We are of opinion that-we should not examine the evidence, but rely upon the facts as found and recited by respondents. We are aware that a somewhat different rule was adopted in the Curtis case (238 Mo. 189'), where the evidence was re-examined, but that case was in a different class to this one, having once been before us on the sufficiency of the evidence and a ruling made that such evidence for plaintiff made out a prima-facie case for the jury. We accordingly held in the Curtis case that our ruling on the evidence became the law of that case- and should not have been disturbed by the court of appeals without .a review of the evidence upon which our opinion was predicated.
The facts in the Nelson ease (now in judgment) have not heretofore been presented to us, and where that class of eases is brought before us by certiorari we will consider only the pleadings, evidence and facts as recited by the court of appeals whose judgment is sought to be quashed.
It may be argued that should the judges of the courts of appeals fail to state the pleadings and facts correctly (a point upon which I personally have no fears) it might- result in some individual case being decided incorrectly and not in harmony with our previous rulings; but that would not militate against the primary object sought by section 6, article 6, supra, i. e., the uniformity of judicial construction on issues of law and equity in this State.
The substance of the decisions of this court which relator claims the respondents have failed to follow in affirming the Nelson judgment are as follows: ' In Slaughter v. Railroad, 116 Mo. 269, 275, it was not charged in the petition that the plaintiff lost time by reason of his alleged injuries, and the trial court upon objection excluded evidence upon that point, but gave *37an instruction authorizing a recovery for loss of time. Held to constitute reversible error.
In the case of Davidson v. Transit Co., 211 Mo. 320, 344, there "was ah “entire absence of plaintiff’s probable impairment of earning capacity in the future, ’ ’ but the trial court, by its instructions, authorized a recovery for such impairment of earning capacity, and the judgment being for $12,000, the instructions were held to be erroneous and the judgment was reversed.
In the case of Duke v. Railroad, 99 Mo. 347, it was held that an instruction authorizing a recovery for “large sums incurred for medical services ánd nursing,” where there was no evidence as to the cost of such medical services and nursing, was reversible error.
Whether instructions were requested by defendants in the cases last cited limiting the recovery for loss of time to nominal damages does not appear.
Respondents contend that, under the facts disclosed in the Nelson case, there was enough evidence as to loss of time admitted without objection to raise a presumption that Nelson did lose some time and was entitled to at least nominal damages on that score; and that the relator has no just right to complain of said instruction. That if it was defective at all, such defect arose because it was too general, and that if relator was not satisfied therewith it should have requested an instruction on its own behalf limiting defendant’s recovery for loss of time to nominal damages. In this contention we think respondents are correct.
The opinion of respondents recites that Nelson was a common laborer and was confined to his bed more than three weeks. It is a matter of common knowledge that a man whose health and strength will enable him to perform common labor is able to earn some wages; but whether, a jury, will be presumed to *38know what the services of such common laborer are worth at a given time and place is a matter not necessary to a decision of this ease, and upon which we express no opinion.
In the recent case of King v. St. Louis, 250 Mo. 501, the evidence showed that the plaintiff was the keeper of a rooming house and before her injury was able to personally care for her rooms, but could not perform such work after she was injured. There was, however, no evidence introduced as to the value of her services, and it was held that an instruction authorizing a recovery for losses “directly caused” by her injuries did not constitute reversible error; the defendant in that case, as here, having failed to request an instruction limiting the plaintiff’s recovery to nominal damages for her alleged loss of earnings.
When the pleadings and evidence are sufficient to support an instruction on an issue, and the instruction submitting said issue is only objectionable on the ground that it is too general in form, it becomes the duty of the party who may wish to complain of said general instruction to request an instruction limiting the effect thereof so that it may not be misunderstood by the triers of the fact.
In Norris v. Railroad, 239 Mo. 695, l. c. 717 (a case more recent than any of those relied upon by relator), in discussing an instruction, it was said:
“In the trial of civil cases, many important duties rest upon the attorneys-for both plaintiff and defendant, among which is to aid the court in giving to the jury all the instructions which they need to enable them to arrive at a correct verdict; and the unsuccessful litigant is not entitled to a reversal because the instructions given at the request of his adversary do not cover all the points upon which instructions should have been given, unless such unsuccessful litigant has prepared and requested proper instructions on the points about which he complains. [Kerr v. Railroad, *39113 Mo. App. 5; Harmon, v. Donohoe, 153 Mo. 274; Matthews v. Railroad, 142 Mo. 666; Browning v. Railroad, 124 Mo. 55.] ”
■ We think the alleged error in the Nelson case is without merit. If relator had requested an instruction directing the jury that Nelson could in no event recover more than nominal damages for any loss of time he may have sustained by reason of his alleged injuries, there being no evidence of what his time was worth, and such instruction had been given, then the defendant would have no cause of complaint — that it failed to request such an instruction it has no one to blame but itself. It is the policy of the law to give every litigant one fair trial, and if he fail to get a fair trial by reason of his own neglect, the appellate courts should turn a deaf ear to his complaint.
Entertaining the views herein expressed, our preliminary writ of certiorari in this cause will be quashed. It is so ordered.
Lamm, G. J., concurs; Walker and Bond, JJ., concur in all except the paragraph holding that we have jurisdiction; Woodson, Graves and Faris, JJ., concur as to our jurisdiction in opinions filed by Graves and Woodson, JJ., and dissent from the result reached.