Dodd v. Missouri-Kansas-Texas R. Co.

• Decision Date: 08 April 1946
• Docket Number: 39622
• Citation: 193 S.W.2d 905,354 Mo. 1205
• Parties: Ruth Dodd, Administratrix of the Estate of James C. Dodd, Deceased, Appellant, v. Missouri-Kansas-Texas Railroad Company, a Corporation
• Court: Missouri Supreme Court

193 S.W.2d 905

354 Mo. 1205

Ruth Dodd, Administratrix of the Estate of James C. Dodd, Deceased, Appellant, v. Missouri-Kansas-Texas Railroad Company, a Corporation

No. 39622

Supreme Court of Missouri

April 8, 1946

Respondent's Motion for Rehearing or to Transfer to Banc Overruled April 30, 1946. Appellant's Motion to Modify Opinion Overruled April 30, 1946.

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch Judge.

Remanded (with directions).

Charles A. Calvird, Crouch & Crouch, Cowgill & Popham and Sam Mandell for appellant.

(1) The record does not show that plaintiff's verdict of $ 20,000 was brought about by passion or prejudice or through any palpable error or total mistake of the jury in applying the rules of law by which damages were to be measured, and so the trial court erred in allowing defendant a new trial on the ground that the verdict was excessive after plaintiff refused to agree to a remittitur of $ 7500. The trial court sustained defendant's motion for new trial on the sole ground that the verdict was excessive and so overruled any complaint that it was the result of passion and prejudice. Sec. 115, Civil Code of Missouri; Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S.W.2d 610; Sakowski v Baird, 334 Mo. 951, 69 S.W.2d 649; Cole v. St. Louis-S.F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344. (2) In considering claimed excessiveness of a verdict this court will look to the evidence most favorable to plaintiff, and accept it as true. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W.2d 331; Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045. (3) Mr. Dodd's services in gardening, repairing, helping Mrs. Dodd, etc., constituted recoverable pecuniary services and advantages to plaintiff. Noce v. St. Louis-S.F.R. Co., 337 Mo. 689, 85 S.W.2d 637; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Mooney v. Terminal Railroad Assn. of St. Louis, 186 S.W.2d 450. (4) Absence passion or prejudice, the court can interfere with a jury's wide discretion in fixing damages for death only when the record discloses that the jury has committed palpable error or has totally mistaken the rules of law by which damages are to be measured. Steger v. Meehan, 63 S.W.2d 109; Mooney v. Terminal Railroad Assn., of St. Louis, supra; 15 Am. Jur., sec. 243. (5) The record shows that the verdict was not excessive, and that the jury committed neither palpable error nor total mistake in applying the rules of law by which the damages were to be measured. Moran v. Atchison, T. & S.F. Railroad, 330 Mo. 278, 48 S.W.2d 881; Miller v. Terminal Railroad Assn., of St. Louis, 349 Mo. 944, 163 S.W.2d 1034; Noce v. St. Louis-S.F. Ry. Co., 337 Mo. 689, 85 S.W.2d 637; Mooney v. Terminal Railroad Assn., St. Louis, 186 S.W.2d 450; Benner v. Terminal Railroad Assn., St. Louis, 348 Mo. 928, 156 S.W.2d 657; Sheehan v. Terminal Railroad Assn., St. Louis, 344 Mo. 586, 127 S.W.2d 657; Rules and Bulletins, Missouri Workmen's Compensation Commission, October 1, 1945.

Haysler A. Poague and Carl S. Hoffman for respondent.

(1) The trial court had the right to conclude that the amount of the verdict exceeded the income expectancy of deceased and for that reason alone to grant a new trial. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630; Midwest Natl. Bank v. Davis, 233 S.W. 406; Burtch v. Wabash Ry. Co., 236 S.W. 338; Pulliam v. Wheelock, 3 S.W.2d 374; Frese v. Wells, 40 S.W.2d 652. (2) The disregard by the jury of Instruction 10 requiring a reduction of recovery proportionate to contributory negligence justified the granting of a new trial on plaintiff's refusal to remit. Federal Employers' Liability Act, 45 U.S.C.A., Sec. 53.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff, Ruth Dodd, obtained a verdict in the sum of $ 20,000 against the defendant railroad company for the death of her husband. The action was brought under the Federal Employers' Liability Act. The trial court sustained defendant's motion for a new trial when plaintiff refused to enter a remittitur in the sum of $ 7,500. From the order sustaining the motion plaintiff appealed to this court.

This is the second appeal. The first trial resulted in a verdict for plaintiff in the sum of $ 18,000. The trial court refused to grant a new trial and the railroad appealed. This court reversed and remanded the case solely on the ground that plaintiff's counsel had made inflammatory remarks in the argument to the jury. See Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454. For a full statement of the case reference is made to the opinion on the first appeal. For the purpose of this opinion it will be sufficient to state only a brief account of how Dodd met his death. Dodd was a signal maintainer and his duties required him to travel over defendant's tracks by motorcar. On July 20, 1942, he left Windsor, Missouri, going south. A short time thereafter a freight train, traveling at a speed of about forty to forty-five miles per hour, also going south, struck Dodd's motorcar and he received injuries which resulted in almost instant death. Plaintiff, Dodd's widow, in her petition charged negligence under the humanitarian doctrine and the case was submitted to a jury on that theory.

The sole question for review on this appeal is the action of the trial court in granting a new trial upon plaintiff's refusal to enter a remittitur as ordered by the trial court. The railroad briefed two points to sustain that ruling. The first point is:

"The trial court had the right to conclude that the amount of the verdict exceeded the income expectancy of deceased and for that reason alone to grant a new trial."

The second contention is stated as follows:

"The disregard by the jury of instruction No. 10 requiring a reduction of recovery proportionate to contributory negligence justified the granting of a new trial on plaintiff's refusal to remit."

This court has authority to review the question presented and may sustain, modify, or reverse the action of the trial court with directions to enter such judgment as this court is of the opinion ought to be entered. See Cole v. St. Louis-San Francisco R. Co., 332 Mo. 999, 61 S.W.2d 344, l.c. 348 (10); Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332, l.c. 337 (13). Note that in the Cole case this court en banc overruled a ruling made in the case of Gaty v. United Rys. of St. Louis, 286 Mo. 503, 227 S.W. 1041, where this court held the question was not reviewable. The opinion in the Cole case did not mention Grzeskoviak v. Union Electric Light and Power Co., 299 Mo. 116, 252 S.W. 364, l.c. 365 (1, 3), but in effect overruled that case which had followed the ruling in the Gaty case. The opinion in the Cole case is in harmony with the provisions of the new code. See sec. 140 (c), Laws of Missouri, 1943, page 395.

Before considering the question on its merits we desire to state that we approach the subject with the following general principles of law in mind, one of which is well stated in 5 C.J.S., sec. 1626, as follows:

"Although the discretion is a legal one which is subject to review or reversal for clear abuse or arbitrary exercise, if no abuse of discretion is shown the action of the trial court in granting or refusing a new trial or in setting aside or refusing to set aside a verdict on the ground that the damages are inadequate or excessive will not be reviewed. This rule applies where the action of the court is made to depend conditionally on the remitting of a portion of the award."

The question of the amount of damages in cases of this nature is primarily for a jury. Courts should not interfere unless a verdict is grossly excessive or inadequate. 25 C.J.S., page 910, sec. 196, also page 1267, sec. 116. In considering the question of whether a verdict is excessive a court must take into consideration the plaintiff's evidence in its most favorable light to plaintiff. This for the reason that a jury has weighed the evidence and found in plaintiff's favor. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, l.c. 1083 (14); Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, l.c. 911; Frese v. Wells, 40 S.W.2d 652, l.c. 655 (6); Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331, l.c. 335 (8-10); Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045, l.c. 1049 (11).

Turning to the merits of the case, with the above rules in mind, we find from the record that the deceased was sixty-five years of age and had been employed by the defendant railroad for thirty-one years. He was an able-bodied man, strong and in good health. He was a trusted employee and his duties were designated as those of a signal maintainer. He received $ 231.00 per month as compensation. It was in evidence that sometime after his death the pay for this position was increased to $ 251.00 per month. Defendant introduced evidence showing that deceased was eligible to retire at a salary of about $ 90.00 per month. Plaintiff, deceased's wife, was forty-seven years of age and entirely dependent upon him for support. She testified that the deceased spent practically all of his earnings for living expenses at home; that in addition thereto deceased worked about the home; that he always had a large garden and made necessary repairs about the house from time to time. The defendant insists that plaintiff's damages must be measured by the present cash value of the future benefits which she might expect to receive. In considering that question many factors must be taken into account. In 25 C.J.S., page 1247, we note the following:

"The loss of decedent's prospective earnings...