Couch v. St. Louis Public Service Co.
| Decision Date | 06 July 1943 |
| Docket Number | 26380 |
| Citation | 173 S.W.2d 617 |
| Parties | FLORENCE E. COUCH, (Plaintiff) Respondents, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and GUY A. THOMPSON, Trustee of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Defendants, GUY A. THOMPSON, Trustee of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, (Defendant) Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. William H Killoren, Judge.
Affirmed.
W. E. Bennick
This is an action for damages for personal injuries sustained by plaintiff, Florence E. Couch, when a bus of St. Louis Public Service Company in which she was riding as a passenger was struck by a train of Missouri Pacific Railroad Company. Both the Public Service Company and Guy A. Thompson, trustee of Missouri Pacific Railroad Company, were joined as defendants to the action. Defendant Thompson (but not the Public Service Company) admitted liability for whatever injuries plaintiff had sustained, thereby restricting the issue, as between him and plaintiff, to the question of the damages she was entitled to receive. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of defendant Public Service Company, but against defendant Thompson for the sum of $ 11,000. Thereafter, as a condition to the overruling of defendant Thompson's motion for a new trial, the court required a remittitur of $ 4,500; and upon plaintiff's subsequent compliance with the order, the court entered judgment in favor of plaintiff, and against defendant Thompson, for the sum of $ 6,500. Notwithstanding the remittitur, defendant Thompson has appealed, his insistence being that the judgment, even after remittitur, is still grossly excessive for the injuries sustained, and that the verdict was in fact the result of passion and prejudice induced by alleged improprieties on the part of plaintiff's counsel so as to have entitled him to nothing short of a new trial of the case in order to relieve against the error.
If the record should bear out appellant's contention that the verdict was the result of passion and prejudice on the part of the jury, it would indeed become imperative that appellant should have a new trial, since in such a situation the error would inhere in the entire verdict so as to foreclose the possibility of its correction by ordering the remittitur of any portion of the damages awarded. However, an excessive verdict does not necessarily indicate that the jury was actuated by improper motives; and if all that appears by way of error is that the verdict was merely for a larger amount than the maximum which the proof of injuries would sustain, such error may be cured by adequate remittitur, and appellant may not thereafter complain, even though the judgment was based upon an excessive verdict. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Lepchenski v. Mobile & O. R. Co., 332 Mo. 194, 59 S.W.2d 610; Dees v. Skrainka Construction Co., 320 Mo. 839, 8 S.W.2d 873.
Plaintiff was thirty-three years of age at the time of the accident, which occurred on November 25, 1941. She had formerly lived at Piedmont, in Wayne County, Missouri, but for fifteen years before the accident had resided in the City of St. Louis or its immediate vicinity. While in Wayne County she had taught a rural school some ten miles out from Piedmont, but after coming to St. Louis had clerked in grocery stores and bakeries, and at the time of the injury in question was employed at the Hartman Sunlight Bakery on McCausland Avenue in the City of St. Louis.
It appears that plaintiff had been involved in two prior accidents, the one while she was still living at Piedmont, and the other in 1934, after she had moved to the City of St. Louis.
The first accident occurred when the buggy or spring wagon in which plaintiff was riding was struck by an automobile, resulting in injuries which she insists were trivial, notwithstanding the fact that she thereafter brought suit against the driver of the automobile in the Circuit Court of Wayne County. According to her testimony, she brought the suit at the suggestion of her then attorneys for the purpose of aiding her sister who had been somewhat severely injured in the same accident, and not primarily to be compensated for her own injuries, which, as she described them, only consisted of slight cuts and abrasions not sufficing to incapacitate her, and from which she entirely recovered with no ill effects whatever.
But while plaintiff, in all her references to the first accident, was inclined to minimize the importance of the injuries she had sustained on that occasion, appellant sought to show by cross-examination and otherwise that in the action brought in the Circuit Court of Wayne County she had both alleged and testified that she had sustained quite serious injuries, including, among other things, an injury to her back and nervous system of the same general character as that for which she was seeking to hold appellant accountable in this proceeding. Confronted with what purported to be a transcript of her own testimony in that case detailing injuries of far greater severity than she attributed to that accident in her testimony in this case, she insisted that she had no recollection of having given the testimony recited in the transcript; that the injuries so described in the transcript were actually those her sister had sustained in that accident, and not her own; and that if she had in fact testified, as the transcript seemed to indicate, that she herself had sustained such serious injuries in the Piedmont accident, it could only have been at the suggestion of her then counsel, who represented both her and her sister, and whose idea it was that she should also sue in order to aid her sister's cause.
In fairness to plaintiff, and particularly to her former counsel, it should be said that it was not originally her contention that such counsel, as a fact, had advised her to falsify her injuries in that case, but that instead, when pressed on vigorous, though entirely proper, cross-examination, she finally evolved such explanation for her testimony, if it was the fact that she had testified as indicated by the transcript from which she was being cross-examined. Incidentally, at the hearing on the motion for a new trial in this case, appellant produced the attorney who had actually handled plaintiff's former case, and who testified that he had not suggested to either plaintiff or her sister that they claim injuries they did not have; that all his preliminary information about the case had been given him by the two women personally; and that as he recalled the circumstances, plaintiff's injuries had consisted of a broken rib, with cuts and abrasions about the body, and a wrenching of her back or neck. He confessed his adherence to the not uncommon practice of pleading the allegation of injuries broadly enough to meet any technical proposition that might be presented during the course of the trial, and frankly admitted that the petition had charged an injury in connection with the spine in which he "didn't have much faith" at the time the petition was drawn.
Under the circumstances, neither plaintiff nor her counsel had seen the transcript before she was cross-examined regarding that portion of its contents contradictory of her testimony on direct examination, and at the close of her examination she called the reporter who had written up the transcript from what he claimed to be the notes which he had taken at the trial of her case in the Circuit Court of Wayne County, and interrogated him as to whether he might not have inadvertently written up the sister's testimony in the trial of her own case against the same defendants. The reporter insisted that it was plaintiff's testimony, and not that of her sister, which he had written up, and expressed his willingness to bring the original, notebooks into court, which he did on the following day.
The book which he identified as the one containing plaintiff's testimony was offered in evidence by plaintiff's counsel for the purpose of having the jury "look at the form and the appearance of the book, and the appearance of the notes that were made in 1930". Later, in argument to the jury, counsel submitted the question of whether the jury should conclude that the book, from its then appearance, was "a book twelve years old"; and inasmuch as the whole controversy growing out of and relating to plaintiff's first accident and her testimony at the trial in Wayne County was purely a question of veracity, the finding of the jury would have ended the matter and rendered it immaterial here except for appellant's claim that the conduct of plaintiff's counsel in connection with certain features of the controversy had contributed to bring about the alleged passion and prejudice on the part of the jury which appellant counts upon as sufficing to invalidate the verdict in its entirety.
Plaintiff's second accident, which occurred in St. Louis in 1934 unquestionably resulted in serious injuries, although there seems to have been no contention by appellant that the injuries then received had produced conditions for which plaintiff was seeking to be compensated in this proceeding. The injuries sustained in such second accident consisted of some broken ribs, a fractured collar bone, and a fractured leg, the latter of which proved to be the most serious of all in view of the development of an osteomyelitis, which did not heal for a period of two years, and which kept plaintiff away from work...
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