Murray v. Buell

• Decision Date: 12 March 1889
• Citation: 41 N.W. 1010,74 Wis. 14
• Parties: MURRAY v. BUELL ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 14

41 N.W. 1010

MURRAY

v.BUELL ET AL.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Waukesha county.

Action by John Murray against Frederick R. Buell and others. Verdict for plaintiff. On motion of defendants, the verdict was set aside unless plaintiff would remit a certain part thereof, which he declined to do, and a new trial was granted. Plaintiff appeals.Clarke & McAuliffe and J. C. McKenney, for appellant.

Shepard & Shepard, Markham, Williams & Bright, and Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

ORTON, J.

The main facts stated in the complaint are substantially as follows: During the season of 1886 the defendants and others, (except the defendant McGarigle,) who were engaged in the business of selling coal in the city of Milwaukee, conspired and formed an association for the purpose of controlling and monopolizing the entire sale of coal in said city, and preventing competition therein, and of fixing uniform prices at which the various kinds of coal should be sold in said city, and of preventing all dealers in coal in said city from selling coal at less rates than the price so fixed. The defendant McGarigle had opened the business of selling coal in the city for that season on his own account, and at the request of the plaintiff they became associated in the business from May 1, 1886, and McGarigle agreed to pay the plaintiff one-half of all of the profits of the business, and allow him to draw upon his share of the business $35 per month for five months, and after that date such sums of the profits as the business would allow. The business was conducted in the name of McGarigle, and the plaintiff was to do the business of selling and delivering coal, and keep the books. When the plaintiff made bids to sell large amounts of coal to the school board of Milwaukee, and to other institutions and persons, at a certain price, and could have obtained the contracts, the defendants, “maliciously, unlawfully, and wickedly,” conspired to compel him to withdraw his bids, by threatening him to shut up his business, and that they would furnish him no more coal if he did not do so. Believing himself unable to contend against the defendants, he withdrew his bid to furnish coal to said school board, and they paid him and McGarigle $700, one-half of which he received for doing so, but he thereby lost a profit of $1,000. The defendants, in furtherance of the conspiracy, refused to sell the plaintiff and McGarigle coal to fill contracts they had to sell and deliver coal to Robert Chivas Post, and the Knights of Labor, and others, and wrote letters addressed to their customers stating that, if the plaintiff had contracted to sell coal for less than $6.50 per ton, such contracts were unauthorized and were canceled. By these means the defendants caused the plaintiff to lose large profits upon sales of coal, and drove him out of the business, and injured his reputation, to his damage of $10,000. These facts, excepting the amount of damages, were substantially proved upon the trial, and the jury found a verdict for the plaintiff of $4,750. The defendants moved for a new trial, mainly on the ground that the verdict was excessive.Before disposing of the motion, the court, believing that the verdict was excessive, ordered that, if the plaintiff would remit $3,250 from the verdict, the motion for a new trial would be denied, otherwise it would be granted; and, the plaintiff having refused to so remit, the motion was granted. The plaintiff has appealed from said order.

There is probably nothing to be considered on this appeal except the order granting the new trial on the ground that the verdict is excessive. But counsel having raised the question whether the trial court had the right to require the plaintiff to remit the excessive damages as a condition of denying the motion for a new trial on that ground, it may be proper to say that such right is undoubted. Schultz v. Railway Co., 48 Wis. 375, 4 N. W. Rep. 399;Corcoran v. Harran, 55 Wis. 120, 12 N. W. Rep. 468;West v. Railway Co., 56 Wis. 324, 14 N. W. Rep. 292;Mechelke v. Bramer, 59 Wis. 58, 17 N. W. Rep. 682;Wright v. Ft. Howard, 60 Wis. 125, 18 N. W. Rep. 750;Baker v. Madison, 62 Wis. 150, 22 N. W. Rep. 141, 583;McLimans v. Lancaster, 63 Wis. 609, 23 N. W. Rep. 689. Whether the sum which the circuit court required the plaintiff to remit as a condition of judgment for the residue of the verdict was reasonable we will not undertake to determine. The circuit court is more competent to determine such specific amount than this court can be from the mere record, and the question is scarcely involved in the order appealed from. The practice of granting new trials for excessive damages is too well established to need reference to authorities, and the true ground for such interference with verdicts is equally well established. It should appear to the trial court that the jury have been influenced or misled by “passion, prejudice, or ignorance.” Whether a less stringent rule would justify the court in requiring the successful party to remit a specific part of the damages found by the jury, as a condition of rendering judgment for the residue, need not be determined in this case. The very large proportion of the damages required to be remitted, sufficiently evinces that it was the opinion of the court that the verdict was so outrageous as to make it appear that the jury was misled by passion, prejudice, or ignorance. We can scarcely conceive how a jury, in such a case, could find a verdict of so large an amount, and over two-thirds, or 317 per cent., too much, to be justified by any possible reason or testimony, except through passion,...