282 S.W. 389 (Mo. 1926), The State ex rel. American Car & Foundry Co. v. Daues

Citation:282 S.W. 389, 313 Mo. 681
Opinion Judge:Blair, C. J.
Party Name:THE STATE ex rel. AMERICAN CAR & FOUNDRY COMPANY v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals
Attorney:Watts & Gentry and Arnot L. Sheppard for relator; G. A. Orth of counsel. N. Murray Edwards and Douglass, Inman & Horsefield for respondents.
Case Date:April 09, 1926
Court:Supreme Court of Missouri
 
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Page 389

282 S.W. 389 (Mo. 1926)

313 Mo. 681

THE STATE ex rel. AMERICAN CAR & FOUNDRY COMPANY

v.

CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

April 9, 1926

Writ quashed.

Watts & Gentry and Arnot L. Sheppard for relator; G. A. Orth of counsel.

(1) This court has announced the rule to be that where a trial court has granted a new trial because the verdict of the jury was excessive, such action of the trial court should be upheld if there is any substantial evidence to support it. Respondents' opinion directly conflicts with the rule laid down by this court in the following cases: State ex rel. Ry. Co. v. Ellison, 268 Mo. 225; Spivack v. Bakery Co., 214 S.W. 168. (2) The opinions of this court hold that where the trial court grants a new trial because of the excessiveness of the verdict, its action must be considered by the appellate court in the same light as though a new trial had been granted because the verdict was against the weight of the evidence. Respondents' opinion failed to follow that rule and is in direct conflict with it, as announced in: State ex rel. Ry. Co. v. Ellison, 268 Mo. 225; Spivack v. Bakery Co., 214 S.W. 168; McCloskey v. Pub. Co., 163 Mo. 22. (3) Respondents' opinion is grounded upon the theory that where there is substantial evidence to support the original verdict which has been set aside by the trial court because of its excessiveness, the court's action amounts to an abuse of discretion. The rule as announced by this court is exactly to the contrary, viz., that where there is substantial evidence which would have supported a verdict for the opposite party had the jury found in his favor, the action of the trial court in granting the new trial should be sustained. In so holding, respondents' opinion is in direct conflict with the rule announced by this court in the case of State ex rel. Ry. Co. v. Ellison, 268 Mo. 225. (4) The opinion of respondents proceeds upon the theory that when passing upon the propriety of the action of the trial court in sustaining the motion for a new trial the same rule should be applied as when passing upon the action of the trial court in overruling the motion for a new trial. This holding conflicts with the following last and controlling decisions of this court: State ex rel. Ry. Co. v. Ellison, 268 Mo. 225; State ex rel. v. Ellison, 256 Mo. 661.

N. Murray Edwards and Douglass, Inman & Horsefield for respondents.

(1) The opinion of the Court of Appeals does not contravene any well-established principle of law based upon the facts set out in the opinion of the Court of Appeals as declared by this court in any of the cases cited by relator. (2) Where a trial court in granting a new trial abuses its discretion, or, acts arbitrarily, such action will be reviewed by an appellate court. Borach v. Mosler Safe Co., 288 Mo. 83. (3) A verdict of three thousand dollars is not excessive for the loss of seventyfive per cent of the sight of an eye by a young man the age of plaintiff, as has been repeatedly held by this court and the courts of appeals. See cases cited in opinion of Court of Appeals.

OPINION

[313 Mo. 684] Blair, C. J.

This is an original proceeding in certiorari whereby the relator seeks to quash the opinion of respondents in the case of Cobb v. American Car & Foundry Company, reported in 270 S.W. (Mo. App.) 398. Cobb recovered a judgment against relator in the sum of $ 3,000 on account of alleged injury to his eye through alleged negligence of relator. The trial court required Cobb to remit $ 1,000 of the damages awarded by the jury, on the ground that the verdict was excessive, or suffer a new trial. Cobb refused to make such remittitur. A new trial was thereupon granted to relator. Cobb appealed to the St. Louis Court of Appeals. That court reversed the order granting such new trial, and remanded the case to the trial court with directions to reinstate the verdict and enter judgment in accordance therewith.

It is the contention of relator that the opinion of respondents contravenes certain controlling decisions of this court, and it asks that such opinion be quashed. Said opinion is quite brief and we quote it practically in full, as follows:

"The sole question brought here for review is whether or not the learned trial judge abused his discretion in granting a new trial on the ground that the verdict was excessive. There is no controversy but that the sight of plaintiff's left eye is but twenty-five per cent of normal, or, in other words, that the plaintiff has lost seventy-five per cent of the sight thereof. The record discloses, however, a sharp conflict in the testimony adduced on behalf of the plaintiff and that adduced on behalf of the defendant as to the cause of the loss of sight. Plaintiff and his experts testified to facts tending to [313 Mo...

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