25 S.W. 893 (Mo. 1894), State ex rel. Robertson v. Hope

Citation:25 S.W. 893, 121 Mo. 34
Opinion Judge:Burgess, J.
Party Name:State ex rel. Robertson, v. Hope et al., Appellants
Attorney:Gage, Ladd & Small for appellants. Karnes & Krauthoff for respondent.
Case Date:March 13, 1894
Court:Supreme Court of Missouri
 
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Page 893

25 S.W. 893 (Mo. 1894)

121 Mo. 34

State ex rel. Robertson,

v.

Hope et al., Appellants

Supreme Court of Missouri, Second Division

March 13, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Gage, Ladd & Small for appellants.

(1) The question of interest should have been left to the jury under Revised Statutes, 1889, section 4430, authorizing allowance of interest, if the jury shall think fit to allow it. See Higgins v. Sargent, 2 B. & C. 384. Interest is the creature of the statute, and in no case not provided for by statute can it be recovered. Pekin v. Reynolds, 31 Ill. 529; Chicago v. Allcock, 86 Ill. 384; Railroad v. Conway, 8 Col. 1; State, etc., v. Harrington, 44 Mo.App. 301; Randall v. Greenhood, 3 Mont. 506; Supervisors v. Klein, 51 Miss. 808; Lincoln v. Claflin, 7 Wall. 132; The Scotland, 118 U.S. 507; The Alaska, 44 F. 498; Railroad v. Balthaser, 126 Pa. St. 1. The matter became a subject of statutory enactment in England in 1833. 3 and 4 William IV. ch. 42, sec. 29. The earliest legislation on the subject in Missouri appears in 1845. Revised Statutes, 1845, p. 834. Under section 4430, Revised Statutes, 1889, the jury in their discretion were to allow interest. See 18 Eq. Cases, L. R. 154; Uhe v. Railroad, 54 N.W. 601. (2) The error in the instruction as to interest can not be cured by a remittitur. Schilling v. Speck, 26 Mo. 487; Railroad v. Estill, 147 U.S. 592. (3) The damages were excessive. There is no legal evidence of value except that introduced by the defendants. Were it not for that, there would be a "failure of proof." Allen v. Kennedy, 91 Mo. 324; Rose v. Taunton, 119 Mass. 99; Archer v. Schaeper, 25 Mo.App. 1; Schnaider v. Niederweiser, 28 Mo.App. 233. "Damages adjudged must be supported by legal evidence. If they are not thus supported, they can not stand." Blackwell v. Adams, 28 Mo.App. 63. (4) The verdict is against the evidence and the instructions of the court, and for that reason the judgment ought to be reversed.

Karnes & Krauthoff for respondent.

(1) Plaintiff was entitled to interest. Polk v. Allen, 19 Mo. 467; Walker v. Borland, 21 Mo. 289; Woodburn v. Cogdal, 39 Mo. 222; Miller v. Whitson, 40 Mo. 97; Spencer v. Evans, 57 Mo. 427; Charles v. Railroad, 58 Mo. 458; Watson v. Harmon, 85 Mo. 443; Stevens v. Springer, 27 Mo.App. 375. (2) It is not the law of this state that interest can be allowed only when specially provided by statute. Gray v. Packet Co., 64 Mo. 47; Dunn v. Railroad, 68 Mo. 268; Arthur v. Wheeler, 12 Mo.App. 335; McBeth v. Craddock, 28 Mo.App. 380; Webster v. Railroad, 22 S.W. 474; Sedgwick on Damages [8 Ed.], sec. 316; Wilson v. Troy, 135 N.Y. 96. It is where the defendant receives no pecuniary benefit by the wrong that interest is not allowable. Kenney v. Railroad, 63 Mo. 99; Marshall v. Schneaker, 63 Mo. 308; Railroad v. Estill, 147 U.S. 591; Arpin v. Burch, 68 Wis. 619; Robinson v. Barnes, 48 Me. 190. (3) The plaintiff is entitled to remit the interest in this court. Warder v. Henry, 23 S.W. 776; McCullough v. Ins. Co., 113 Mo. 606; Furnish v. Railroad, 102 Mo. 438; Keen v. Schnedler, 92 Mo. 516; Smith v. Railroad, 92 Mo. 359; Kimes v. Railroad, 85 Mo. 611; Clark v. Bullock, 65 Mo. 535; Miller v. Hardin, 64 Mo. 545; Western v. Kribben, 48 Mo. 37; Railroad v. Estill, 147 U.S. 591; Anchor Milling Co. v. Walsh, 24 Mo.App. 97; Lower v. Harris, 57 F. 368; Bank v. Ashley, 2 Pet. 327; Railroad v. Harmon's Adm'r, 147 U.S. 571. (4) This case has been in court eleven years; has been tried three times in the circuit court in three separate counties, and is now here on the third appeal. The merits of the controversy have been settled, and a reversal now ought not to be allowed, unless positive error has been committed. (5) Where as in this case the evidence tends to establish the issues the court will not pass on its sufficiency. Moore v. Railroad, 73 Mo. 438; Grove v. Kansas City, 75 Mo. 672; Fulkerson v. Mitchell, 82 Mo. 13; Baum v. Fryrear,...

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