Harper v. St. Louis & S. F. R. Co.

• Decision Date: 31 December 1914
• Docket Number: No. 1164.,1164.
• Citation: 172 S.W. 55
• Parties: HARPER v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

172 S.W. 55

HARPER v. ST. LOUIS & S. F. R. CO.

No. 1164.

Springfield Court of Appeals. Missouri.

December 31, 1914.

1. APPEAL AND ERROR (§ 1177) — VERDICT — VACATION — EVIDENCE.

It is the duty of the appellate court, on concluding that the defeated party has not had a fair trial, and that an excessive verdict has been rendered by passion and prejudice, to reverse and direct a new trial, instead of reducing the verdict.

2. APPEAL AND ERROR (§ 1171) — VERDICT — REVIEW — EXCESSIVE DAMAGES.

Where plaintiff suffered an assault at the hands of a news agent employed on one of defendant's trains, and recovered a verdict of $5,000 actual damages, which the trial judge reduced to $2,000 on motion for a new trial, and from the evidence it appeared that the verdict was the result of passion and prejudice, the judgment will be reversed and the case remanded.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by W. F. Harper against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. Ward & Collins, of Caruthersville, for respondent.

FARRINGTON, J.

A judgment was rendered in the circuit court of Pemiscot county for the sum of $2,000 in plaintiff's favor. His cause of action was based upon an alleged assault made upon him by the defendant's brakeman, and the said brakeman knowingly permitting a news agent on the train to assault plaintiff. From the record we gather that there had been a former trial of this case, which for some reason not appearing did not result in a final determination. When this trial was had, resulting in the judgment appealed from, a verdict for $5,000 actual damages was returned which ten of the jurors signed. While a motion for a new trial was pending, in which complaint was made that the verdict was excessive and the result of bias and prejudice, the trial judge required plaintiff to enter a remittitur of $3,000 of the verdict, which he did, and judgment was then rendered for $2,000, and the motion for new trial overruled. The defendant (appellant) assigns a number of errors, which we have examined, and find that none would justify a reversal, excepting the one we will discuss in this opinion, namely:

"Because the verdict of the jury is so much against the evidence as manifestly to be the result of bias or prejudice."

We think the record sustains appellant's contention; and realizing that it is only in extraordinary and extreme cases, where appellate courts grant new trials on the ground that the judgment is against the weight of the evidence, when the trial court has refused to do so, but entered a remittitur instead, we have, after much consideration, concluded that the interests of justice require that this case be retried. The trial judge found that the verdict was so excessive as to demand that it be reduced. In such cases it is to some extent discretionary whether the verdict be reduced by remittitur or a new trial be granted; and that discretion is subject to review by this court. In some cases the demands of justice may be met by a remittitur; in others, only by a new trial.

Plaintiff's Account of his Case.

Plaintiff testified that at the time of the trial he resided at Blytheville, was 54 years old, a member of the church, and did not get drunk; that in August, 1912, he was running a hotel at Luxora, Ark., and that in his business he sold soda pop at five cents a bottle; that on Sunday morning, August 11, 1912, he boarded one of defendant's north-bound trains, having purchased a ticket to Caruthersville, Mo., and took a seat in the smoking car beside a man whom he did not know and has not since seen, and began talking to him; that during the journey he bought two bottles of soda pop from a news agent, paying ten cents a bottle, and drank one and gave the other to the man beside him, and when they had finished he took both bottles and threw them out of the car window; that this occurred at a point some three or four miles below Caruthersville. He testified that, when the news agent charged him ten cents a bottle for the pop, he remarked, "This is more than I am in the habit of paying," and that the news agent replied, "It is none of your damn business how much we sell soda for;" that when he threw the bottles out the window, the news agent said, "You son of a bitch, I'll learn you how to throw my bottles away," and began fighting him, and broke a glass bottle over his head, and that while this was going on the defendant's brakeman came up and grabbed plaintiff by the right arm, pulled it back over the seat, and said, "Put it on the son of a bitch, he needs it." Plaintiff testified that he was struck several times with the glass bottle while his arm was being held back by the brakeman; that the result was some scalp wounds, which bled profusely, and a few minutes of unconsciousness; that as a result of the brakeman pulling his arm around back of the seat it has been in such shape since that he could not use it; that he cannot lift anything, or use his arm to amount to anything, and that it pains him all the time, and that he has to carry it with his hand or thumb resting in his shirt bosom like a sling. He testified that he lost two months' time when he could do nothing, and that his time was worth $50 per month; that since that time he has been canvassing and selling fruit trees, but that his arm pains him and he cannot write with his right hand; that before the assault he was right-handed, and that his right arm was larger than his left, but that since then, and for several months prior to this trial, the right arm has been one-half inch smaller than his left and he had a doctor measure his arms. The trouble occurred on August 11, 1912. This trial was had on July 30, 1913. The injuries to his head soon healed, and he claimed no damages for permanent injuries, except as to his arm. He testified that when he reached Caruthersville he was cut about the head and was bleeding, and that he went to Mr. Butler's barber shop and had him wash and clean him up, and that the barber then put a bandage on his head; that he then went out on the street and met Lee Hooper, an acquaintance of five years, who conducted a saloon; that he told Hooper of the trouble, and complained of his arm hurting, and that Hooper took him to the office of Dr. Phipps, who gave him an "antiseptic" that put him to sleep, and that the doctor put his arm back in place and bandaged it. On cross-examination he was asked: "Did he put a bandage on, or simply put your arm in a sling?" He answered: "He put a bandage on." Plaintiff testified that the doctor charged him $22, and that he had also expended some $15 for liniments, ointments, and the like. He testified that that same afternoon he telephoned and had a lawyer come down town, where he met him (in the lawyer's office). Plaintiff admitted that he had used a hoe a little in his garden, but only with his left hand, and that he had used his left hand in setting out some trees. He could not remember whether there was more than one news agent on the train. He was asked if he tried to buy any more soda pop after they beat him up, and he replied:

"I believe I did; I am not sure. Q. From the same fellow? A. Well, it might have been."

He testified that the fight was with the same news agent that sold him the two bottles at ten cents each; that he knew but one man on the train who saw the fight, a Mr. Mayhon, who lived at Blytheville, plaintiff's home at the time of the trial. This man was not a witness in the trial. Plaintiff testified that from the time he boarded the train until he alighted at Caruthersville he did not leave his seat, with the possible exception that he may have gone to get a drink of water once.

Plaintiff's Witnesses.

C. E. Butler, the barber, testified that he washed plaintiff's head, and saw one or two cut places in his scalp, and found a small piece of glass, but that he did not put a bandage on plaintiff's head; that plaintiff held his arm down at his side; that he did not know whether plaintiff was "grunting" from his arm or his head. He testified:

"Wasn't complaining of his arm in particular. Could not say what his condition was as to being drunk or sober; he was `grunting' and `taking on' so much."

Lee Hooper testified that he met plaintiff on the street after the latter came out of the barber shop, and that he complained of injuries to his shoulder, and that the witness took him to Dr. Phipps' office; that plaintiff was holding his right hand down by this side; that he (the witness) saw the doctor examine the arm and give plaintiff a hypodermic, and saw the doctor prepare to bandage the arm, but left the office before this was done. He testified that plaintiff was not intoxicated, but that he did not know whether or not plaintiff had been drinking.

Dr. Phipps testified, for plaintiff, that the injured man came to his office and that he treated the cuts in the scalp and put a bandage on plaintiff's head, and went into detail about the treatment to the head. He did not recall that plaintiff complained of his arm, or that he treated or bandaged the arm, or that he gave plaintiff a hypodermic injection; nor did he recall that anything was wrong with plaintiff's arm, and thinks he would remember if he bandaged the arm. He thought from plaintiff's action that he had been drinking some. He testified that he might have charged plaintiff $2, but that he did not charge him anything like $22; that he made no charge on his books, as plaintiff paid him cash at the time, and that he has no account against plaintiff for any amount.

In rebuttal, J. F. Sanders testified that, since the last of January or the 1st of February before the trial in July, plaintiff had resided next door to him, and that he had heard plaintiff complain of his arm, and had seen plaintiff...