McLean v. Eddy

• Decision Date: 04 June 1935
• Docket Number: No. 22940.,22940.
• Citation: 83 S.W.2d 230
• Parties: McLEAN v. EDDY et al.
• Court: Missouri Court of Appeals

83 S.W.2d 230

McLEAN v. EDDY et al.

No. 22940.

St. Louis Court of Appeals. Missouri.

June 4, 1935.

Appeal from St. Louis Circuit Court, Division No. 17; Claude O. Pearcy, Judge.

Action by Mary Cecilia McLean against Harold Eddy and another. Judgment for plaintiff, and named defendant appeals.

Affirmed.

Leahy, Saunders & Walther and Lyon Anderson, all of St. Louis, for appellant.

Eagleton, Henwood & Waechter, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit, which was begun on the 8th day of March, 1931, in the circuit court of the city of St. Louis, is an action for damages growing out of personal injuries sustained by plaintiff on account of the overturning of an automobile in which she was riding on the 4th day of July, 1930.

On that day plaintiff and defendants Eddy and Moseley were members of a holiday party at a clubhouse in the village of Crescent in St. Louis county. At about 4 o'clock in the afternoon eight members of the party left the clubhouse in two automobiles and started to the Meramec river to swim. Defendant Eddy was driving his Hudson coupé with his brother in the front seat with him, and plaintiff and her escort were in the rumble seat, plaintiff sitting on the left side. Defendant Moseley was driving his Pontiac sedan with his wife in the front seat with him and Miss Viola Voight and her escort in the back seat. After they had traveled about a mile from the clubhouse, the Eddy coupé in front and the Moseley sedan following in close proximity, Moseley sounded the horn on his sedan, and Eddy, thinking he wanted to pass, turned his coupé somewhat sharply to the right, and thereby caused it to run off the somewhat narrow road and down a steep embankment and to turn over on its right side, and plaintiff was thrown out and pinned under the car.

Plaintiff's version of this incident is as follows: "When the front right wheel of the Eddy car went over the bank I was thrown back and forth several times, rocked back and forth, and was thrown out and pinned under the car. My back fell on a rock or something hard, and my legs were over my head, and the car was resting on my thighs, between my hips and my knees, on the back part of my legs. When I was caught under the car I was in that kind of position. My legs were extended out and up." She remained in this position, pinned under the car, from three to five minutes, during which time they jacked the car up and extricated her, and then she was unable to walk but had not lost consciousness. They put her in the Moseley machine and she was taken back to the clubhouse and from there to the Moseley home, reaching there around 7 o'clock in the evening, where Dr. Heideman made his first examination and gave her treatment. She was taken to her own home the next day, the 5th of July, around 7 o'clock in the evening and later was taken to a hospital.

In the petition various acts of negligence were charged against defendant Eddy and defendant Moseley, which are unnecessary to notice on account of the fact that the issues in this court have been narrowed down to one sole issue, that the verdict is excessive.

After the testimony was finished on both sides and the instructions read to the jury and the arguments of counsel made on the respective sides, the jury returned a verdict in favor of the plaintiff and against the defendant Harold Eddy in the sum of $5,000 and found in favor of defendant Raymond Moseley, on which verdict judgment was rendered. After an ineffective motion for a new trial, defendant Eddy brings the cause to this court by appeal for review, and, as stated, makes a sole assignment of error to the effect that the verdict is excessive.

Appellant Eddy in support of his contention cites more than twenty personal injury cases where the plaintiffs were awarded amounts less than $5,000.

In the case of Evans v. General Explosives Co., 293 Mo. 364, loc. cit. 379, 239 S. W. 487, 492, being a case wherein a $20,000 verdict was upheld for the loss of a right arm, the court said: "Citations to cases for like losses of limbs furnish no reliable criteria for the determination of the proper amount of damages that should be awarded in a given case. A life or a limb may justly be of far more value in one case than in another. * * * A comparison therefore of the amounts awarded for damages in other cases cannot constitute a fair basis from which a reliable estimate can be made as to the reasonableness of this verdict. * * * The jury are far better judges as to the amount that should have been awarded to him than others."

In Hughes v. Schmidt, 325 Mo. 1099, loc. cit. 1104, 30 S.W.(2d) 468, 470, the court said: "Appellant cites a number of cases in which we have not disturbed much smaller verdicts. However, they are of little assistance because it does not follow that in those cases we would not have approved larger verdicts had the juries seen fit to return them."

We have carefully examined the entire record in this case, and find that the case was tried on both sides on a high plane, with due decorum on the part of the respective counsel. There was no complaint on the part of defendants' counsel as to any conduct on the part of plaintiff's counsel which would have the slightest tendency to arouse an undue bias or prejudice in the minds of the jurors in favor of the plaintiff in respect to her injuries. There were no clashes and no request to discharge the jury on account of untoward conduct tending in the direction of unduly influencing the jury. So that, we are justified in holding that the verdict of $5,000 was the result of cool, dispassionate deliberation on the part of the jury without anything occurring during the trial of the case to stir up their passions or prejudices in favor of the injured party which might tend to warp their judgment. In addition, the mere size of a verdict does not establish passion or prejudice. Beall v. Kansas City Rys. Co. (Mo. App.) 228 S. W. 834; Goetz v. Ambs, 27 Mo. 28; Merrill v. St. Louis, 12 Mo. App. 466; Wells v. Sanger, 21 Mo. 354; McGraw v. O'Neil, 123 Mo. App. 691, 101 S. W. 132.

Taking the testimony in respect to plaintiff's injuries as it appears in a light most favorable to the plaintiff, and...