Devine v. City of St. Louis

• Decision Date: 02 April 1914
• Docket Number: No. 16,179.,16,179.
• Parties: DEVINE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

165 S.W. 1014

257 Mo. 470

DEVINE v. CITY OF ST. LOUIS.

No. 16,179.

Supreme Court of Missouri, Division No. 1.

April 2, 1914.

Motion to Amend Judgment Denied April 13, 1914.

1. APPEAL AND ERROR (§ 979)—NEW TRIAL— EXCESSIVE DAMAGES—DISCRETION OF TRIAL COURT.

The trial court's discretion in granting a new trial on the ground that the damages awarded are excessive will not be interfered with in absence of abuse.

2. JURY (§ 31)—INFRINGEMENT OF RIGHT— GRANT OF NEW TRIAL—INSUFFICIENCY OF EVIDENCE.

The granting of a new trial on the ground that the verdict is excessive as against the weight of the evidence does not violate Const. art. 2, § 22, as a denial of the right to a jury trial.

3. APPEAL AND ERROR (§ 979)—NEW TRIAL (§ 76)—GRANT OF NEW TRIAL—REVIEW.

The rule that the ruling of the trial court on motion for new trial will not be interfered with, unless discretion is arbitrarily exercised, applies where a new trial is granted because the verdict is excessive.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Katherine Devine against the City of St. Louis. From an order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Affirmed.

Glendy B. Arnold, of St. Louis, for appellant. William E. Baird and Truman P. Young, both of St. Louis, for respondent.

BROWN, C.

The appellant seeks to recover damages for personal injury suffered by her in the city of St. Louis by falling through a cinder sidewalk on Brannon avenue. The cinder surface broke under her weight, so that her foot went through into an excavation beneath it in such a manner as to seriously sprain her ankle. This occurred on January 4, 1908, and the ankle was still weak at the time of the trial, on March 14, 1910. There was much conflicting evidence as to her disability during the time intervening between the injury and the trial. The jury returned a verdict for $2,000. The defendant in due time filed its motion for a new trial, stating, among other grounds therefor, the following:

(6) "The court erred in overruling the demurrer to the evidence at the close of the whole case."

(11) "The amount of the verdict is excessive, and is not supported or justified by the evidence."

(12) "The verdict is the result of sympathy, passion, and prejudice for the plaintiff on the part of the jury, and against the defendant."

The trial court afterwards announced that it would sustain the motion and grant a new trial, unless the plaintiff should, within ten days thereafter, remit from said verdict the sum of $800. This she refused to do, and, after the expiration of the ten days allowed for that purpose, the court sustained said motion and granted a new trial on the ground that "the verdict of the jury is excessive." The appeal is taken from this order.

1. The appellant insists in her brief that the verdict is not excessive, that "no man who has ever carried a rheumatic pain in a joint for two years—just acute enough to keep one fully advised of its presence— will ever say that $25 or even $50 a month is excessive compensation for his suffering"; and expresses doubt that "the learned jurist nisi was ever a rheumantic, or had ever had a bone broken or an ankle sprained, else he would not have laid his heavy hand on this verdict." The inference is that some member or members of this court may have been favored with a broader experience, and therefore be qualified to check the exercise of the uneducated discretion of the trial judge. Whether or not we have that power in this case is the important question presented. In Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440, we held that, "if the action of the court in granting the new trial can be sustained upon any ground set forth in the motion for that purpose, that it is our duty to do so." This language was approved in Bank v. Wood, 124 Mo. 72, 76, 27 S. W. 554, 555, in which this court, after quoting it, said: "Circuit courts have large discretion in the matter of granting new trials, particularly upon the ground that the verdict is against the weight of evidence. This court has often ruled that, in law cases, where there is a conflict in the evidence, it would not review it and determine its weight, and it has as often declared it to be, not only the right, but the duty of circuit courts to supervise the verdicts of juries and grant new trials, if the verdict is, in their opinion, against the weight of evidence. When there is a substantial conflict in the evidence, we should no more interfere with the action of the circuit court in granting a new trial than we should, in such case, interfere with the verdict which has been approved by that court." In McCarty v. Transit Co., 192 Mo. 396, 401, 91 S. W. 132, 133, Judge Lamm for this court, after quoting a number of our own cases to sustain him, said: "This wise exercise of this judicial discretion on the part of circuit judge has always been encouraged by this court." In State ex rel. v. Shaw, 163 Mo. 191, 63 S. W. 371, we said that if, when the motion for a new trial is presented, the court was of the opinion that the finding of the jury on the merits of the case was against the evidence, "it was not only its province, but it was its plain duty to do as it did, set aside its finding and grant a new trial;" and it cites many cases in support of that statement. Coming to our later cases, we said, in Gould v. St. John, 207 Mo. 619, 631, 632, 106 S. W. 23, 26, that in granting new trials the courts have much discretionary power, and that, where the weight of the evidence is involved, this court will not interfere with that discretion, unless it has been unwisely exercised. We also said in that case, citing McKay v. Underwood, 47 Mo. 187, "that the granting of a new trial on the ground that the verdict is against the weight of the evidence rests peculiarly with the judge presiding at the trial." In Rodan v. Transit Co., 207 Mo. 392, 406, 105 S. W. 1061, 1065, we said: "It must be assumed as a commonplace of the law, arising to the level of an axiom, that the granting of a new trial rests within the sound discretion of the trial court; and its action in that behalf will not be disturbed on appeal, unless it appears that its discretionary power was abused, i. e., exercised in an arbitrary or improvident manner."

In Morrell v. Lawrence, 203 Mo. 363, 381, 101 S. W. 571, 575 (120 Am. St. Rep. 660, 11 Ann. Cas. 650), this court applied the same principle in a case where the ground assigned as a reason for granting a new trial was that the verdict was excessive. We said: "That is a point peculiarly within the province of the trial judge; it is one that he is better qualified to judge than an appellate court. The law puts that important responsibility upon him, and it advances the cause of justice when the trial judge courageously performs that duty." In this case we see no reason for departing from this rule. The evidence was conflicting, at least in its coloring as to the painful and disabling quality of the injury. The trial court had the plaintiff and all the witnesses before it, and was much better qualified than we to determine whether justice will be promoted by another trial. It may be that, as in Goetz v. Ambs, 27 Mo. 28, cited by appellant, the verdict will be increased in another trial. If so, the statute (R. S. 1909, § 2023) which permits but one retrial for this cause will relieve the courts of much of their responsibility.

2. The appellant insists that the action of the trial court and also of this court in the many cases to which we have referred are all in violation of article 2, § 22, of the Constitution of our state, because they amount to a denial of the right of trial by jury as enjoyed before the adoption of that instrument in 1875, and that we should overrule our own more recent cases and turn to the good old doctrine which she thinks was held by us in Gurley v. Railway Co., 104 Mo. 211, 16 S. W. 11, and Rodney v. Railway, 127 Mo. 676, 28 S. W. 887, 30 S. W. 150. She says that we should do this if we are of the opinion that, under the common and statute law of this state as it existed prior to that time, our own and English courts did not assert or...