Clark v. Fairley

Decision Date10 April 1888
Citation30 Mo.App. 335
PartiesJOSEPH D. CLARK, JR., By Next Friend, Respondent, v. JAMES P. FAIRLEY, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Reversed and remanded.

FRANK A. HOBEIN and EDMOND A. B. GARESCHÉ , for the appellant: The court erred in admitting incompetent evidence offered on behalf of plaintiff. Rev. Stat. 1879, sec. 6688. The verdict and judgment in this case are overwhelmingly against the weight of the evidence and present a fit case for the interference of this court. Hipsley v. Railroad, 88 Mo. 348; Ackley v. Staehlin, 56 Mo. 558; Spohn v. Railroad, 87 Mo. 74, dissenting opinion of Judge Sherwood therein. Instruction number eleven tells the jury that if they find for plaintiff they are also at liberty to add to the actual damage which they may find, from the evidence, that plaintiff has sustained " such further sum as they might find would be just and fair (in view of all the facts and circumstances in evidence), to punish and make an example of defendant in the present case." This instruction is erroneous in that it fails to instruct as to mitigating circumstances. Morgan v. Durfee, 69 Mo 478; Joice v. Branson, 73 Mo. 28. It is also improper in that it leaves it to the jury to find by conjecture from the evidence what are aggravating circumstances, when, if any such existed, it was the duty of the court to tell them what would, under the evidence constitute mitigating or aggravating circumstances, leaving the jury to find the facts. Nichols v. Winfrey, 79 Mo. 553; Rains v. Railroad, 71 Mo. 169.

A. A. PAXSON, for the respondent: Evidence as to the wealth of defendant was clearly competent, as in all actions of tort exemplary damages are allowed. Klingman v. Holmes, 54 Mo. 304; Smith v. City, 55 Mo. 456; Howard v. Lillard, 17 Mo.App. 228. If, however, we concede that the evidence was improper, in the language of Judge Philips in the last cited case, " it would not in view of the record constitute reversible error. For it is manifest from the amount of the damages awarded the plaintiff that the jury did not allow any smart money."

OPINION

ROMBAUER P. J.

Our opinion on a former appeal in this case is reported in 24 Mo.App. 429, to which report we refer for a fuller statement of the facts. The action is one to recover damages for injuries sustained by plaintiff by the kick of a mule. Defendant is sought to be charged for such injuries because he forcibly threw the plaintiff near, or against the mule, which led to the accident.

Before the re-trial of the cause the plaintiff amended his petition so as to conform to suggestions made in our former opinion, and the defendant amended his answer so as to set up the plea of contributory negligence. The verdict upon the last trial was the same as upon the first, one in favor of the plaintiff for five hundred dollars.

The evidence upon the last trial was the same in substance as upon the former one. For the plaintiff, one witness, a boy companion of his, testified on his examination in chief: " Mr Fairley (the defendant) slapped Joe (the plaintiff) and knocked him under the mule, and the mule kicked him," and on cross-examination, " Mr. Fairley slapped him on the left side of the jaw, and Joe fell underneath the mule and the mule kicked him." There was, therefore, direct testimony of the fact that the defendant forcibly threw the plaintiff near or against the mule in some manner, which evidence, as we held formerly, was essential to plaintiff's recovery.

This evidence was directly contradicted not only by the defendant himself and a number of eye witnesses of the occurrence, all of whom concurred in the statement that the plaintiff never was struck, and that the defendant never was within striking distance of him until he picked him up after the injury, but it is also opposed to the probabilities arising from surrounding circumstances.

But while we readily concede that the verdict is opposed to the great preponderance of evidence, we must equally concede that it is supported by substantial evidence, and that it is not one of those extreme cases in which an appellate court is justified to vacate a verdict on the sole ground that it conclusively appears that it is the result of prejudice or mistake on part of the jury. Spohn v. Railroad, 87 Mo. 84.

It is to be regretted that the trial courts exercise too sparingly the discretionary power vested in them to vacate verdicts because opposed to the weight of evidence. When the case was last before us we expressed our opinion of its merits in unmistakable terms. The evidence at the last trial was stronger in favor of defendant than at the preceding trial, and if the court had sustained the defendant's motion for new trial on the sole ground that the verdict was opposed, not only to the great preponderance of evidence, but to all the probabilities arising from surrounding circumstances, it would have done no more than, under the circumstances, it was its clear duty to do.

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