Engleman v. Caldwell and Jones
| Decision Date | 16 February 1932 |
| Citation | 243 Ky. 23 |
| Parties | Engleman v. Caldwell and Jones. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Specific errors excepted to must be mentioned specifically in motion and grounds for new trial .
2. Appeal and Error. — Argument of counsel cannot be considered on appeal where no statement of argument appears in bill of exceptions.
3. Damages. — Conduct of defendant in persistently driving away trade from plaintiffs' store and shop by derogatory and offensive remarks held to authorize jury's allowance of punitive damages.
4. Damages. — $5,000 punitive damages for loss of grocery business and business of pressing shop, resulting from defendant's deliberate attempt continuously persisted in for two months to drive away plaintiffs' trade, held not excessive.
There was evidence that defendant, who lived across the street from plaintiffs' grocery, sat on his porch from day to day and called to his tenants and others passing that plaintiffs were not reliable and that their goods were trash, and that clothes would be burned up in plaintiffs' pressing shop. Plaintiffs also showed that defendant required several tenants in his lodging house, who continued to trade with plaintiffs, to move.
5. New Trial. — Court cannot set aside large verdict, unless so grossly excessive as clearly to show passion or prejudice.
6. Damages. — Jury may award punitive damages according to their conclusions from entire evidence respecting infliction of wanton injury.
7. New Trial. — Punitive damages cannot be considered to have resulted from passion merely because large in amount, where wanton conduct was shown and result of injury suffered was uncertain.
Appeal from Jefferson Circuit Court
DOOLAN & DOOLAN for appellant.
W.G. DEARING for appellees.
Affirming.
This appeal presents for review a trial before a jury in which a judgment was rendered in behalf of the appellees against the appellant. The verdict of the jury was $1,400 for loss of grocery business; $940 for loss of business of pressing shop; and $5,000 punitive damages.
The appellees of their own accord entered a motion for the remission of the item of $940 for loss of the business of the pressing shop. They were within their rights in entering this motion, and the court properly entered an order accordingly. Chesapeake & O.R.R. Co. v. Meyers, 150 Ky. 841, 151 S.W. 19; R. Burleigh & Sons v. Overton, 173 Ky. 70, 190 S.W. 472; Louisville Water Co. v. Scholtz, 140 Ky. 436, 131 S.W. 192; Security Benefit Assn. v. Kibby, 220 Ky. 330, 295 S.W. 164; Hickman v. Lay, 228 Ky. 656, 15 S.W. (2d) 515.
The appellant in his brief relies on alleged errors not mentioned in his motion and grounds for a new trial. It is shown by the clerk's transcript that he objected and saved exceptions to the ruling of the court to the giving of instructions 1, 2, and 3. In his brief he complains of the instructions on the measure of damages for loss of profits and punitive damages, but neither of these causes is found in his motion and grounds for a new trial.
Subsection 8 of section 340, Civil Code of Practice, has been uniformly construed by this court to mean that the grounds relied on for a new trial must be specifically set out in the motion and grounds therefor. The specific error to which the exception was taken during the trial must be mentioned therein. This construction of the Code was given it in 1868 in Slater v. Sherman, 5 Bush 206, and has since been applied in hundreds of cases and recently in the case of Brown v. Union Packing Co., 229 Ky. 198, 16 S.W. (2d) 1024, and Thompson's Admr. v. First National Bank, 234 Ky. 252, 27 S.W. (2d) 978. He sets out in his motion and grounds for a new trial, and argues, in his brief, grounds for reversal which are not found in his bill of exceptions. He complains of improper argument of appellees' counsel to the jury in both the motion and grounds for a new trial and in his brief, but we find nowhere in the bill of exceptions a statement of the argument of which he complains. The argument has not been preserved and presented by the bill of exceptions; therefore we are precluded from considering it. Illinois Cent. Ry. Co. v. Josey's Admx., 110 Ky. 342, 61 S.W. 703, 22 Ky. Law Rep. 1795, 54 L.R.A. 78, 96 Am. St. Rep. 455; George T. Stagg Co. v. Brightwell, 92 S.W. 8, 28 Ky. Law Rep. 1220; Louisville Ry. Co. v. Gaar (Ky.), 112 S.W. 1130; Bannon v. Louisville Trust Co., 150 Ky. 401, 150 S.W. 510. The appellant insists that evidence of his financial condition was not pertinent to the issue, and therefore inadmissible. We are not required to pass on its competency for the simple reason, when the question was propounded to the witness relating to the amount of property the appellant owned in that neighborhood, the court sustained an objection and the witness was not permitted to answer it. Only two questions during the examination of the witnesses were objected and excepted to by the appellant. This was one. The other was how many tenants the appellant "had in the neighborhood." This question was permitted to be answered over the objection of appellant. This ruling of the court is not complained of in the brief of counsel. However, it may be said in passing that on the issues made in this case, and to which the evidence was directed, it was competent to show how many tenants the appellant had in the neighborhood under investigation.
To properly consider and determine other questions presented, a summary of the evidence is required.
The appellees in March and April, 1930, were engaged at No. 639 and No. 641 South Tenth street, Louisville, Ky., in "the grocery and pressing business." The appellee Caldwell conducted the pressing shop, and the appellee Jones the grocery department. The appellant's residence was across the street at No. 636 South Tenth street, about opposite their place of business. Sarah Kelly, the mother of the appellee Mary Jones, resided at 634 Tenth street, close to and adjoining a lodging house which was owned and operated by the appellant. In March, 1930, Mary Kelly complained to the appellant of the conduct of the roomers in his lodging house. Deriving no satisfaction from so doing, she complained to the chief of police of Louisville. After she did so, it is claimed by the appellees and other witnesses that appellant immediately began to sit from day to day on his porch and to call to his tenants and others passing and to charge that appellees were "white folks niggers," "not reliable"; that their goods were "trash, refuse stuff." When customers would start into their place of business, he would tell them: "Don't get your groceries there, they have nothing in there that is any account." "Don't go in that place, that is no place for you." And to announce, "Caldwell knows nothing about pressing clothes, your clothes will be burned up if you take them in there."
The appellant notified his tenants that if they persisted in trading at the grocery store of appellees "and buying things from them they would have to move." One or two of his tenants who continued to trade with them were required by him to move. He audaciously boasted that he carried the law in his pocket, and declared that "here is the law right here," slapping his hand on his pocket; that "the court is nothing but a dollar"; and that he was going to put appellees out of business if he had to throw away a thousand dollars to do it.
At the time it is claimed appellant began...
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