ON REHEARING. We think the conclusion reached on the former submission of the case was correct. The only matter that is now in controversy is whether there was any error in plaintiff's instructions on the measure of damages. Plaintiff insists that the instructions are proper as far as they went and if the defendant Packing Company was dissatisfied with them, the burden was upon it to request instructions embodying its ideas and views on the measure of damages, which was not done, and that under the circumstances the failure to limit plaintiff's damages to such sum as would reasonably compensate him for his injuries was a mere non-direction *Page 263 and not a mis-direction. In support of this, plaintiff in his brief on rehearing cites the followng cases;
(1) Minniea v. St. Louis Cooperage Co., 175 Mo. App. 91; in that case the instruction was not on the measure of damages but was one on the matter of plaintiff's contributory negligence; (2) Powell v. Union Pacific Ry. Co., 255 Mo. 420; the instruction in that case on the measure of damages provided that the damages should be "fair and just pecuniary compensation" and it is this feature that is omitted in the instruction in the case at bar; (3) Winderman v. United Rys. Co; this case is disposed of in the opinion on the original submission of the case at bar; (4) Bettoki v. Northwestern Coal Mining Co., 180 S.W. 1021; the instruction is not set out and it is impossible to tell the exact nature of the generality of its terms.
From an examination of the cases where the instructions on the measure of damages containing general language were approved, it is apparent, we think, that the generality in the instructions was considered from the standpoint that the jury might take into consideration elements of damages that would not be properly recoverable, it being the ruling that if defendant desired the jury to be restricted to the proper elements of damages, the defendant should offer instructions to accomplish this purpose. In the leading case of Browning v. Railroad, 124 Mo. 55, 71, the instruction read:
"`If the jury find for the plaintiff they will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of $5000.'"
This instruction contained the matter left out in the instruction in the case at bar. It is apparent that the instruction in the Browning case was assailed by the defendant on the ground that it did not limit the jury to the elements of damages that the jury should properly consider, for the court said — *Page 264
". . . `No attempt was made by it (defendant) to point out theproper elements of damage in such cases or to modify the general language of the instruction.
`The instruction is not erroneous in its general scope; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury, it was the duty of the counsel to ask the modifications and explanations, in an instruction embodying its views.
`The court is not required in a civil case to instruct on all questions, whether suggested or not, and as there is nothing in the amount of the verdict to indicate that the jury were actuated by any improper notice in their assessment, the general nature of the instruction is no ground for reversal.'" (Italics ours.)
In the case of Barth v. Kansas City Elev. Ry. Co., 142 Mo. 535, 555, commenting upon the language of an instruction which was general as to the measure of damages, the court said —
"Subsequently we ruled in the Browning case where the essentialelements of the damages were given to the jury for the plaintiff in the language of the statute, its generality would not constitute reversible error, reserving to the defendant the right to point out the elements limiting the damages in its own instructions." (Italics ours.)
In Harmon v. Donohoe, 153 Mo. 263, the instruction on the measure of damages was very general, more so even than those in the case at bar. While the nature of the attack on the instruction is not stated specifically, it is apparent that it was assailed for the reason that it permitted the jury to take into consideration any element of damage that it saw proper. For the court in discussing the instruction stated that its language was fuller than the instruction in the Browning case. In the instruction in the Harmon case the court laid stress on the fact that the elements of damage were specified in the instruction.
In the case of Wheeler v. Bowles, 163 Mo. 398, the language of the instruction was likewise very general. *Page 265 The court in passing upon the point made against it by the defendant stated, l.c. 409 —
"As to this point it is only necessary to remark that this is a civil action and mere non-direction is no ground of error in this court. The defendant did not submit any instruction on the elements of damages, neither did plaintiff. If defendant desired the jury restricted to certain elements he should have offered an appropriate instruction on that subject." (Italics ours.)
In Smith v. Fordyce, 190 Mo. 1, 30, the instruction on the measure of damages that was approved was very general in terms, as much so as the one in the case at bar, but it was assailed on the ground that it did not define the elements of damages which the jury should take into consideration in arriving at their verdict.
On an examination of the cases passed upon by the Supreme Court involving the generality of the matter of plaintiff's instructions on the measure of damages, it will be found that the question before the court was whether the instruction in a given case was erroneous because it was broad enough to allow the jury to consider elements of damages not recoverable and the instruction was approved on the ground that it was good as far as it went and that if defendant desired the jury to be restricted to the proper elements of damages he should give an instruction limiting them in that way.
The instructions in the case at bar cannot be successfully attacked on the ground that they permit the jury to considerelements of damages not properly recoverable and the attack is not on that ground but because the instructions permit the jury to allow any amount of damages that they in their fancy might see fit to allow. As was said in the original opinion in this case, the measure of damages was a question of law and when the court instructs on that it should instruct correctly. It is not a question of what elements of damages the jury were permitted to consider but one going to the amount of the recovery. As to the amount of damages recoverable *Page 266 the court improperly instructed the jury because the instructions permit the jury, if it sees fit, to allow more than a reasonable sum to compensate plaintiff for his injuries, and the jury proceeded to allow an excessive amount. The jury were not restricted in any way as to the amount they might find, neither as to the matter of reasonable compensation nor as to the amount asked in the petition. [Spohn v. Mo. Pac. Ry. Co., 116 Mo. 617, 633; 17 C.J., p. 1065.]
Plaintiff's instructions amounted to more than a non-direction, they were a mis-direction. The judgment is reversed and the cause remanded. All concur.