Kennon v. Gilmer

• Decision Date: 05 October 1889
• Citation: 9 Mont. 108
• Parties: KENNON v. GILMER et al.
• Court: Montana Supreme Court

9 Mont. 108

KENNON

v.GILMER et al.

Supreme Court of the Territory of Montana.

Oct. 5, 1889.

Appeal from district court, Deer Lodge county.

W. W. Dixon, for appellants.

Robinson & Stapleton, for respondent.

BLAKE, C. J.

This action was commenced by Kennon to recover damages from Gilmer et al. for personal injuries sustained in 1879 through the negligence of the latter. Kennon was then a passenger upon the stage coach of Gilmer et al., who were common carriers for hire. At the first trial in 1881 the jury returned a verdict for Kennon for the sum of $17,167, and judgment was entered accordingly. Upon an appeal to this court it was adjudged that the cause be remanded for a new trial, but the questions which were discussed in the opinion do not arise upon this hearing. 4 Mont. 433, 2 Pac. Rep. 21. At the second trial by a jury a judgment was obtained by Kennon for the sum of $20,750. Another appeal was taken by Gilmer et al., and heard by this court at the January term, 1885, when the following judgment was rendered: “The judgment is hereby reduced to the sum of $10,750, and affirmed as to that amount.” 5 Mont. 274, 5 Pac. Rep. 847. Both parties sued out writs of error, and the case was remanded to this court by the supreme court of the United States “for further proceedings in conformity with this opinion,” which is reported in 131 U. S. 22, 9 Sup. Ct. Rep. 697. The scope of our investigation is readily ascertained by observing the concluding paragraph of the opinion by Mr. Justice GRAY: “The erroneous judgment of the supreme court of the territory being reversed, the case will stand as if no such judgment had been entered, and that court will be at liberty, in disposing of the motion for a new trial according to its view of the evidence, either to deny or grant a new trial generally, or to order judgment for a less sum than the amount of the verdict, conditional upon a remittitur by the plaintiff.” The error committed by this court is clearly pointed out in this language: “The judgment of the supreme court of the territory, reducing the amount of the verdict and the judgment of the inferior court thereon, without submitting the case to another jury, or putting the plaintiff to the election of remitting part of the verdict before rendering judgment for the rest, was irregular, and, so far as we are informed, unprecedented; and the grounds assigned for that judgment, in the opinion sent up with the record, as required by the rules of this court, are far from satisfactory.” The legal questions relating to the admission of testimony, the assessment of damages, and the instructions to the jury, which were considered and determined by this court, were settled according to the opinion cited by Mr. Justice GRAY, and are not before us for review. It is contended by the appellants that the ruling of the court below in denying their motion for a change of venue must be again considered. It was held by Mr. Justice GRAY in this case that “the granting or denial of a change of venue, like the granting or refusal of a new trial, is a matter within the discretion of the court, not ordinarily reviewable by this court on writ of error,” and that “the refusal to grant a change of venue on the mere affidavit of the defendants' agent to the state of public opinion in the county clearly involves matter of fact and discretion, and is not a ruling upon a mere question of law.” While it seems a needless task to pass upon the matter at this time, we deem it proper to remove all doubt, and state that we adhere to the conclusions which have been expressed in the former opinion of this court.

According to our view of the evidence, the motion for a new trial should be denied generally. Conceding that the testimony is conflicting, we must be governed by the familiar rule that prevents us, under these conditions, from disturbing the verdict. The last question for our decision is whether we should order a judgment for a less sum than the amount of the verdict. The ground of the motion for a new trial is this: “Excessive damages, appearing to have been given under the influence of passion or prejudice.” The testimony concerning this point can be embodied in the following statement: Kennon testified that his age was 54 years when the accident occurred; that his ankle joint was dislocated; that he remained under medical attendance in Helena over two months; that his foot was amputated on account of this wound; that it was over a year before the leg healed up; that small pieces of bones came out three or four different times; that at all times he had been unable to walk without crutches; that he had an artificial foot, but usually could not wear it more than two or three hours without much pain; that his leg is very weak, although healed up; that his bill for the treatment of the leg in Helena footed up nearly $800; that his wound was very painful until it healed; that his leg continued...