Kennon v. Gilmer Gilmer v. Kennon

Decision Date13 May 1889
Citation9 S.Ct. 696,131 U.S. 22,33 L.Ed. 110
PartiesKENNON v. GILMER et al. 1 GILMER et al. v. KENNON
CourtU.S. Supreme Court

M. F. Morris, for Kennon.

Nathaniel Wilson and J. Hubley Ashton, for Gilmer and others.

GRAY, J.

This action was brought April 4, 1882, in a district court in the county of Deer Lodge and territory of Montana, against Gilmer and others, common carriers of passengers for hire by stage-coaches between the towns of Deer Lodge and Helena by Kennon, a passenger in one of those coaches, to recover damages for personal injuries sustained by him on June 30, 1879. The complaint alleged that the defendants were guilty of negligence in failing to provide a safe and competent driver and safe and well-broken horses, by reason of which, and of the negligence and mismanagement of their servants, the horses became unmanageable, broke the pole of the coach, and took fright, so that it was apparently unsafe for the plaintiff to remain in the coach, and he jumped to the ground, and in so doing broke his leg, and it became necessary to amputate it, whereby he sustained damages in the sum of $25,000, and was obliged to pay $750 for necessary medical and surgical expenses. The answer denied these allegations. Before a jury had been called, the defendants moved for a change of venue, on the ground that an impartial trial could not be had in the county of Deer Lodge; and in support of the motion filed an affidavit of one Riddle, deposing 'that he is agent of defendants in the above-entitled cause; that he resides in the county of Deer Lodge, where said action is depending; that he is acquainted with and knows the general sentiments and opinions of the public in reference to said action and the parties thereto, and from his knowledge of such public opinion has reason to believe, and does believe, that the defendants cannot have a fair and impartial trial of said cause in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, as far as concerns said action; that one trial has already been had of said cause in this county, in which heavy damages were awarded to the plaintiff by the jury which tried said cause; that said verdict and the judgment rendered thereon have been generally canvassed and commented upon by the public in a manner favorable to the plaintiff and unfavorable to the defendants, and thereby has produced a general prejudice against the defendants which cannot fail to have an influence on the second trial of said cause.' The court withheld its decision on the motion until a jury had been called and examined on their voir dire, and then denied it, and the defendants excepted to the denial.

At the trial the defendant took exceptions to evidence introduced by the plaintiff, and to instructions given to the jury at his request. The jury returned a verdict for the plaintiff, assessing his damages at 'the sum of $20,000 for general damages, and also for the sum of $750 for medical expenses and surgical operations.' The defendants moved for a new trial, for excessive damages appearing to have been given under the influence of passion or prejudice, for insufficency of the evidence to justify the verdict, and for errors of law in the rulings excepted to. The motion was denied, and judgment entered on the verdict, and the defendants appealed to the supreme court of the territory, which ordered the judgment to be reduced to the sum of $10,750, and affirmed it for this amount. Its opinion is reported in 5 Mont. 257, 5 Pac. Rep. 847. Writs of error were sued out by both parties, by the defendants on January 1, 1885, and by the plaintiff on May 1, 1885, both returnable at October term, 1885; and the plaintiff's writ of error was docketed first in this court.

The questions arising out of the exceptions taken by the defendants to the rulings of the inferior court present no difficulty. By the statutes of the territory, 'the court may, on good cause shown, change the place of trial, when there is reason to believe that an impartial trial cannot be had therein;' and an appeal lies to the supreme court of the territory form an order granting or refusing a new trial, or from an order granting or refusing to grant a change of venue. Code Civil Proc. Mont. 1879, §§ 62, 408; act of amendment Feb. 23, 1881, § 7. But the statutes of the territory cannot enlarge the appellate jurisdiction of this court. 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. McFaul v. Ramsey, 20 How. 523; Kerr v. Clampitt, 95 U. S. 188; Railway Co. v. Heck, 102 U. S. 120. And 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 la .

The only objection to the admission of evidence, relied on in argument, is that the plaintiff, who introduced evidence tending to support the allegations of his complaint, as well as evidence that one of the leading horses in the defendants' coach had been fractious and vicious on former occasions, was permitted to introduce evidence that in March, 1881, twenty months after the accident, this horse, when being driven in a buggy, kicked and broke the pole, and tried to run away. But evidence of subsequent misbehavior of the horse might properly be admitted, in connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit, and to support the plaintiff's allegation that the horse was not safe and well broken. The length of time afterwards to which such evidence may extend is largely within the discretion of the judge presiding at the trial. As observed by Chief Justice BIGELOW, delivering the judgment of the supreme judicial court of Massachusetts, overruling exceptions to the admission of evidence of the conduct of a horse as long after the accident as in the case at bar: 'The objection to the evidence relating to the habits of the horse subsequent to the time of the accident goes to its weight, rather than to its competency. The habit of an animal is in its nature a continuous fact, to be shown by proof of successive acts of a similar kind. Evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident.' Todd v. Rowley, 8 Allen, 51, 58. To the same effect are Maggi v. Cutts, 123 Mass. 535; and Chamberlain v. Enfield, 43 N. H. 356.

The defendants' exceptions to the instructions on the question of their liability to the plaintiff are based upon some expressions in the fifth and sixth instructions given at the plaintiff's request, considered separately, and disregarding subsequent and perfectly definite instructions, which put it beyond doubt that the jury could not have been misled. The qualification supposed to be omitted in the sixth instruction is distinctly stated in the seventh, and the supposed implication in the fifth instruction is absolutely refuted by the twelfth instruction given at the request of the defendants themselves. It would therefore be a waste of time and space to state or to comment upon those instructions at greater length.

The remaining exception taken at the trial is to the instruction on the measure of damages, by which the jury were directed that they should assess the general damages claimed 'in such sum as will compensate the plaintiff for the injury received, and in so doing may take into consideration his bodily and mental pain and suffering, both taken together, but not his mental pain alone, the inconvenience to him of being deprived of his leg, and loss of time and inconvenience in attending to his business generally, from the time of the injury to the present time, such as the plaintiff may have proved, and the jury are satisfied, to a reasonble certainty, inevitably and necessarily resulted from the original injury.' The defendants object to this instruction that the jury were permitted to assess damages for mental suffering. But the instruction...

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214 cases
  • Roy v. Oregon Short Line Railroad Co., 6115
    • United States
    • United States State Supreme Court of Idaho
    • December 18, 1934
    ...... R. Co. v. Ferebee , 238 U.S. 269, 35 S.Ct. 781, 59 L.Ed. 1303; Kennon v. Gilmer , 131 U.S. 22, 9. S.Ct. 696, 33 L.Ed. 110.) It has likewise ......
  • Denver & R.G.R. Co. v. Roller
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 5, 1900
    ...... mental suffering in a greater or less degree. And as said. in Kennon v. Gilmer, 131 U.S. 22, 26, 27, 9. Sup.Ct. 697, 33 L.Ed. 112: 'The ......
  • Johansen v. Combustion Engineering, Inc., 97-8726
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 1, 1999
    ...of this appeal. 4 II. A federal court has no general authority to reduce the amount of a jury's verdict. Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 33 L.Ed. 110 (1889). The Seventh Amendment prohibits re-examination of a jury's determination of the facts, which includes its assessment ......
  • Sunray Oil Corporation v. Allbritton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 15, 1951
    ...Procedure; with decisions of the Sixth and Ninth Circuits; and with the actual decision of the Supreme Court in Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110, the final disposition of which it is impossible to reconcile with the Seventh Amendment except upon the basis that the de......
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1 books & journal articles
  • State farm and punitive damages: call the jury back.
    • United States
    • The Journal of High Technology Law Vol. 5 No. 1, January 2005
    • January 1, 2005
    ...Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830). (110.) Colgrove v. Battin, 413 U.S. 149, 152 n.6 (1973). (111.) Kennon v. Gilmer, 131 U.S. 22, 30 (1889). Nor, for the same reason, may a federal appellate court order the district court to enter judgment for such an amount. Hetzel v. Pr......

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