Chrum v. St. Louis Public Service Co.

• Decision Date: 09 July 1951
• Docket Number: No. 42057,No. 1,42057,1
• Citation: 242 S.W.2d 54
• Parties: CHRUM et al. v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 54

242 S.W.2d 54

CHRUM et al. v. ST. LOUIS PUBLIC SERVICE CO.

No. 42057.

Supreme Court of Missouri, Division No. 1.

July 9, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

and Opinion Modified on Court's Own Motion Sept. 10, 1951.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.

Orville Richardson, Leland Jones, and Hullverson & Richardson, all of St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff recovered a verdict and judgment for $53,000 for personal injuries sustained as she attempted to alight from defendant's motorbus in the City of St. Louis. Upon defendant's motion for new trial, the trial court found the verdict excessive and conditionally ordered a remittitur of $20,000, with which plaintiff complied. Judgment was then rendered for $33,000. Defendant appealed, assigning as error: (1) rendition of a quotient verdict, (2) the declaration in a given instruction that plaintiff was a passenger on the bus, (3) improper argument of counsel, and (4) gross excessiveness of the verdict after remittitur.

Plaintiff, then aged six years, was injured on the morning of August 1, 1947. She and her cousin, Harry Williams, then aged twelve, were riding on a bus operated northward on Hamilton Avenue. As the bus approached Minerva Avenue, Harry pulled the signal cord for the bus to stop at Minerva, and he and plaintiff went to the central exit door to alight when the bus stopped. After the bus had stopped and the doors were opened, Harry got off and turned to assist plaintiff. As she, with Harry's aid, stepped to the street, the doors of the bus closed, catching her right arm. The bus moved forward, throwing Harry against its side and dragging plaintiff upon the street with her arm caught in the door and her back toward the front of the bus. Harry ran forward, yelling to the operator to stop the bus. Plaintiff's arm became free of the door and she fell to the street as the bus stopped. She then lay at the rear end of the bus, crying and vomiting. Shortly thereafter, she was taken to the hospital. Other facts will be stated as necessary.

The verdict, as returned by the jury, assessed plaintiff's damages at '$53.000 Dollars'. Counsel and the court conferred out of the hearing of the jury, during which counsel for defendant asked that the jury be returned to their room to return a proper verdict. The court, over the objection of counsel for defendant, asked the foreman to state in the presence of the other jurors the amount of the verdict. The foreman thereupon replied: 'The amount of the verdict, each one of us wrote down a number and * * *' The court interrupted him and directed him to state the amount, and he stated: 'All right, $53,000.' The court then directed the clerk to read the verdict. Counsel for defendant insisted that each juror 'put down the amount' and that each juror indicate how the verdict was reached, and moved that the verdict be stricken. An objection to this procedure was made by counsel for plaintiff and was sustained. The verdict was ordered received and filed. Thereafter fifteen slips of paper were found in the jury room with figures ranging from '275' to '65,000', but with many other unintelligible figures and notations thereon.

Defendant's contention that the above evidence shows a quotient verdict is without merit. The law is settled in this State that unless a prearrangement exists among the jurors to accept an unascertained quotient as their verdict, a verdict arrived at by the method of totaling suggested amounts and taking the quotient thereof, if then agreed upon, is not invalid; and the presumption is that there was no such prearrangement. There was no evidence to overcome the presumption. Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 977; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163, 170. Neither did the court err in refusing to permit the jurors to further reveal the manner in which they arrived at their verdict. A juror may testify in support of a verdict, but may not give evidence to contradict or destroy it. Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205, 210; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447, 457.

Defendant contends the court erred in declaring in Instruction No. 1 that plaintiff 'was a passenger on defendant's bus * * * even if she paid no fare * * * and therefore the defendant owed her * * * the highest degree of care * * *.' Plaintiff alleged in paragraph (4) of her petition that she was a passenger on the bus. Defendant admitted all of the allegations of this paragraph 'except that defendant denies that plaintiff was a fare paying passenger.' A mere denial that plaintiff was a fare paying passenger does not amount to a denial that she was a passenger. Moreover, she was a passenger if she rode as a passenger with the consent of defendant. The bus operator testified that although plaintiff made no statement as to her age he permitted her to ride without paying fare, believing she was only five years of age and entitled to free transportation. Succinctly stated, the evidence shows that plaintiff offered herself as a passenger without tendering fare and the defendant's operator-agent accepted her without demanding a fare. She did not enter the bus secretly not did she refuse to pay a fare. Under these circumstances, she became a passenger and entitled to all of the rights of a passenger. Buck v. People's Street-Railway & Electric Light & Power Co., 108 Mo. 179, 18 S.W. 1090; Graves v. Missouri Pac. R. Co., 342 Mo. 542, 548, 118 S.W.2d 787. The court did not err in so instructing the jury.

Defendant complains of a portion of the closing argument made by plaintiff's counsel. Contrary to plaintiff's evidence, certain of defendant's witnesses had testified that plaintiff stepped clear of the bus, the door was closed and she was seen by them to be walking away from the bus. One witness said she was upon the sidewalk as the bus moved forward, that she then heard a scream behind the bus, and it stopped. But these witnesses gave no testimony as to how plaintiff came by her injuries. In arguing this phase of the conflicting evidence, plaintiff's counsel stated: 'The evidence presents a rather clear-cut issue, I would say. Was this child injured by the closing of the doors and the starting of the bus, or was she safely on the sidewalk? The defense has not given you one iota--the bus company has not given you one iota of evidence of what caused that child to be injured--not one. She is taken to the hospital with multiple contusions and abrasions, a fractured pelvis, an injured diaphragm and the rest of her body in a mangled condition. How did she get that way? Mrs. Kaufmann says she was walking back by the fence. Where did she get those multiple contusions and abrasions of the body unless the bus dragged her along the street? Where did she get that fractured pelvis and injured diaphragm unless they had dragged that little body down the street? What single witness have they got to show how this little body came to be fractured and bruised.' The argument was pertinent and we hold the trial court did not abuse its discretion in permitting it to be made. Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519 527-531; Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 682-684.

Defendant finally contends that the judgment, reduced by remittitur to $33,000, is still grossly excessive. The test is whether the size of the judgment, reduced by remittitur, still is shockingly excessive. Eller v. Crowell, Mo.Sup., 238 S.W.2d 310, 316; Cruce v. Gulf, Mobile & Ohio R. Co., Mo.Sup., 238 S.W.2d 674. There was much evidence as to whether plaintiff's present physical condition is the result of injuries sustained in the accident or the result of childhood illnesses and infirmities. The trial court had the right and duty in the first instance to consider all of the evidence in determining whether the verdict was excessive. Steuernagel v. St. Louis Public Service Co., Mo.Sup., 238 S.W.2d 426, 430. But, in determining whether the trial court abused its discretion in ordering a remittitur of only $20,000, we review the evidence from the standpoint most favorable to plaintiff. Cruce v. Gulf, Mobile & Ohio, supra; Williamson v. Wabash R. Co., 355 Mo. 248, 196 S.W.2d 129, 134.

As stated, plaintiff fell to the street and lay there, vomiting and crying, until taken to the hospital. The hospital record shows:

'Chief complaint: Pain in abdomen; defect in breathing; pain in chest; some distress in throat. She had difficulty breathing and complained of pain in the throat around the larynx, and somewhat cyanotic in the lips and finger nails. Short inspirations followed by an expiratory grunt.

'Examination revealed she is conscious, a well-developed, white, six-year-old girl and having some difficulty in breathing.

'Examination: * * * neck, slight pain in upper trachea; thorax, symmetrical. Respirations are labored with short inspiratory phase and expiratory grunt. * * * Lungs: dullness to percussion over lower right ribs. Diminished breath sounds over the same area. Remaining lung areas are clear to auscultation and percussion. * * * Abdomen: tenderness to palpation over the bladder area and somewhat diffuse tenderness over the upper two quadrants of the abdomen. No palpable masses in viscera; mild rigidity of abdomen.

'Impression: 1. Possible internal abdominal hemorrhage. 2. Bruised...