Grodsky v. Consolidated Bag Co.

• Decision Date: 02 April 1930
• Docket Number: 27123
• Citation: 26 S.W.2d 618,324 Mo. 1067
• Parties: Bessie Grodsky, Appellant, v. Consolidated Bag Company and Philip Levine
• Court: Missouri Supreme Court

26 S.W.2d 618

324 Mo. 1067

Bessie Grodsky, Appellant, v. Consolidated Bag Company and Philip Levine

No. 27123

Supreme Court of Missouri

April 2, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Reversed and remanded.

Abbott Fauntleroy, Cullen & Edwards for plaintiff.

(1) The uncontradicted evidence established that plaintiff suffered great, painful and permanent injuries for which $ 10,000 or more would be reasonable compensation, and the verdict for $ 1,000, $ 839 of which represented expenses paid or incurred is so inadequate as to imperatively require the granting of a new trial. Fischer v. St. Louis, 189 Mo. 569; Platt v. Bell Tel. Co., 12 S.W.2d 933; Boggess v. Street Ry. Co., 118 Mo. 339; Watson v Harmon, 85 Mo. 446; Pritchard v. Hewitt, 91 Mo. 551; Fairgrieve v. Moberly, 29 Mo.App. 141. (2) The court erred in instructing the jury that all plaintiff could recover on account of surgical and medical bills, medicines and medical attention, hospitals, etc., should not exceed $ 839, because the uncontradicted evidence tended to prove that she paid and became liable for a much larger sum. Smith v. Railway, 127 Mo.App. 62; Murray v. Ry. Co., 101 Mo. 240; Cobb v. Ry. Co., 149 Mo. 629; Moran v. Railway Co., 74 N.H. 500, 69 A. 884; McGarrahan v. Railroad Co., 171 Mass. 217, 50 N.E. 611; Scullane v. Kellogg, 169 Mass. 544, 48 N.E. 622; Feeney v. Railroad Co., 116 N.Y. 375, 5 L. R. A. 544; Western Gas Constr. Co. v. Danner, 38 C. C. A. 528, 97 F. 882. (3) The court erred in admitting immaterial evidence and in compelling the plaintiff to be interrogated on immaterial matters, and mere matters of opinion, and erred in permitting the defendant to introduce evidence tending to contradict such immaterial evidence and statement of opinion. Sweeney v. Cable Ry. Co., 150 Mo. 400; McFadden v. Catron, 120 Mo. 252; Com. v. Mooney, 110 Mass. 99; Holmes v. Anderson, 18 Barb. 420; Hamburger v. Dinkel, 164 Mo. 398; Harper v. Railroad Co., 47 Mo. 581; Iron Mountain Co. v. Murdock, 62 Mo. 70. (4) The ruling of the court permitting plaintiff to testify to immaterial matters and to give her opinion and permitting the defendant to impeach plaintiff on such immaterial matters, prejudiced plaintiff as a litigant and destroyed her evidence before the jury, and such testimony, taken in connection with other testimony that she was in the habit of illegally operating a twin six Packard car which her father owned and that she was born in Poland and the suggestion that her father was named either "Isaac" or "Jacob" and engaged as a Shylock loaning money to salaried persons, created such prejudice -- racial and otherwise -- against the plaintiff, as to constitute reversible error and to demonstrate that the inadequate verdict was the proximate result of passion, prejudice and perverted judgment aroused by the aforesaid improper rulings. Authorities under Point 3.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) This court has no power and authority under the Constitution and laws of this State to assume or accept as fact the injuries of the plaintiff or of their nature and extent, because and as testified to by her witnesses. The jury have the right to believe or disbelieve the whole or any part of the testimony of the witnesses, whether contradicted or not, and find and fix their verdict accordingly, and while the trial judge who conducted the trial and saw and heard the witnesses, has the right to review the evidence and the verdict of the jury returned upon it and set aside the verdict, if he thinks it against the evidence, or the weight of the evidence, an appellate court has no such right, but is concluded by the verdict if approved by the trial judge. Bryan v. Wear, 4 Mo. 106; Steamboat City of Memphis v. Mathews, 28 Mo. 244; Bradford v. Rudolph, 45 Mo. 426; Reid v. Insurance Co., 58 Mo. 429; Randall v. Railroad Co., 65 Mo. 334; Gannon v. Gas Co., 145 Mo. 502; Johnson v. Grayson, 230 Mo. 394; State ex rel. v. Ellison, 286 Mo. 225; State v. Frederici, 269 Mo. 689; State v. Williams, 274 S.W. 50; St. Louis Union Trust Co. v. Hill, 283 Mo. 278; Burdict v. Ry. Co., 123 Mo. 221; Biel v. Fire Brick Co., 299 Mo. 660; State ex rel. v. Trimble, 307 Mo. 536, 551; Gould v. Railroad Co., 315 Mo. 713. (2) There is a wide difference between the scope and rules of action of nisi prius and appellate courts respectively in the exercise of their power and authority over verdicts; and hence even if the trial court in the exercise of its discretion might have set aside the verdict and judgment in this case, nevertheless, since that court refused to do so, and since the damages awarded were substantial and were the result of the jury's appraisal of the weight and credibility of the evidence of plaintiff's injuries, it by no means follows that this court, in the exercise of its more restricted authority in this regard, may now do so. Reid v. Ins. Co., 58 Mo. 429; Lockwood v. Ins. Co., 47 Mo. 51; Bank v. Armstrong, 92 Mo. 265; Bank v. Wood, 124 Mo. 72; Lowenhart v. Ry. Co., 190 Mo. 342; Settles v. McGinley, 296 S.W. 846; Cochran v. Wilson, 287 Mo. 230. (3) Inadequacy of damages awarded by a jury is insufficient alone to raise a presumption of passion or prejudice on the part of the jury. Sullivan v. Wilson, 283 S.W. 744; Cochran v. Wilson, 287 Mo. 230; Dowd v. Air Brake Co., 132 Mo. 582; Pritchard v. Hewitt, 91 Mo. 547. (4) There is a vital distinction in the call for interference with verdicts on the ground of the inadequacy of the damages awarded, between cases such as tort for personal injury where "there is no definite criterion . . . by which the jury can be aided" in fixing compensation for damages and other cases such as breach of contract, injury to property, etc., where the evidence furnishes the definite means of fixing the damages. Watson v. Harmon, 85 Mo. 443; Pritchard v. Hewitt, 91 Mo. 547; Dowd v. Air Brake Co., 132 Mo. 579; Morris v. Railroad, 136 Mo.App. 393; Cochran v. Wilson, 287 Mo. 210; Busse v. White, 302 Mo. 672. (5) The statement of the plaintiff made in her signed statement, to-wit, that "it is my opinion the truck driver was entirely responsible for the accident" was competent evidence and properly received as an admission against interest. Ruckert v. Moor, 295 S.W. 794; Runyan v. Coal & Mining Co., 172 S.W. 1165; Ginter v. O'Donohue, 179 S.W. 732; Freedman v. O. Rys. Co., 293 Mo. 235; Atkinson v. School of Osteopathy, 199 Mo.App. 265; Mitchell v. Violette, 221 S.W. 777.

OPINION

Atwood, P. J.

This is an action for personal injuries and specified expenses growing out of an automobile collision wherein plaintiff sought damages in the sum of $ 25,000. A verdict was rendered in her favor in the sum of $ 1,000. From the judgment entered thereon plaintiff has appealed on the grounds of inadequacy, error in giving an instruction and error in the admission of evidence.

Plaintiff went to trial on her second amended petition alleging that she was injured on July 13, 1922, while riding in an automobile belonging to defendant Consolidated Bag Company, a corporation, on a trip from St. Louis to Chicago; that said automobile was in charge of and directed by defendant Levine who was the chief managing officer of said corporation; that when near the town of Watseka, Illinois, said automobile was so carelessly and negligently driven by defendants, their agents, servants and employees, that a collision occurred with a truck upon the highway, directly resulting in certain serious and permanent injuries to her. Defendant corporation filed answer in the nature of a general denial, and codefendant Levine, after generally denying the allegations of the petition, set up contributory negligence on the part of plaintiff in failing to protest against or warn the driver of the automobile of the speed complained of, and of the impending danger of collision. Plaintiff replied to each answer with a general denial.

It appears from the evidence that defendant corporation owned the car and that defendant Levine, intending in its behalf to make a trip from St. Louis to Chicago, invited plaintiff to ride in the car with him and his sister. The fourth occupant of the car was the driver, Jack Grodsky, who was an employee of defendant corporation. Inasmuch as the jury found for plaintiff and defendants have not appealed, a statement of the evidence tending to show liability is not deemed material to the issues here raised.

The gravamen of this appeal is the inadequacy of plaintiff's judgment. This complaint appears in her motion for a new trial, in her first and second specifications of error, and in the first point urged on this appeal. Other grounds of error are also urged and they will be considered first. One is set forth in the second point in appellant's brief, as follows:

"The court erred in instructing the jury that all plaintiff could recover on account of surgical and medical bills, medicines and medical attention, hospitals, etc., should not exceed $ 839, because the uncontradicted evidence tended to prove that she paid and became liable for a much larger sum than $ 839."

The matter here complained of is the action of the court in modifying plaintiff's offered instruction by inserting the words, "if any not exceeding the sum of $ 839 for this item," appearing in parentheses in the following instruction numbered 12:

"The court instructs the jury that if, under other instructions of the court, you find for the plaintiff, then, in assessing her damages, you may take into consideration the nature of whatever injuries you may find and believe from the evidence plaintiff sustained on account of her pelvis bones having been broken and on account of any bruises and contusions about her back, as a direct result of the collision...