Richardson v. Missouri Fire Brick Co.

• Decision Date: 05 February 1907
• Parties: RICHARDSON, by STRODE, Curator, Respondent, v. MISSOURI FIRE BRICK COMPANY, Appellant
• Court: Missouri Court of Appeals

99 S.W. 778

122 Mo.App. 529

RICHARDSON, by STRODE, Curator, Respondent, v. MISSOURI FIRE BRICK COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

AFFIRMED.

STATEMENT.--At the age of eleven years, plaintiff having neither father nor mother living, entered the service of defendant (a corporation) under a contract, whereby he was to receive fifty cents per day for his labor. One of the duties assigned plaintiff was to close the windows of defendant's four-story factory building on every workday, between the hours of five and six o'clock p. m. An unguarded belt attached to a wheel or pulley, was operated through an opening in the floor of the fourth story of the factory. This opening was within about two feet of one of the windows which it was plaintiff's duty to close, and the floor was greasy and slippery, and covered with fine particles of clay and brick dust. Within a few minutes of six o'clock p m., on September 7, 1904, plaintiff went to the fourth floor of the factory for the purpose of closing the windows. He closed the window in close proximity to the belt, and turned to go down to the floor below. As he turned, his foot slipped and slid into the opening through which the belt was operated, and he was carried up four or five feet by the belt and dropped to the floor, causing a fracture of his right arm about an inch above the elbow. The action was to recover the consequential damages, laid at fifteen thousand dollars. The trial resulted in a verdict in plaintiff's favor for five hundred dollars. Plaintiff moved the court to set aside the verdict and grant a new trial for the following reasons:

"First. That the verdict is grossly inadequate.

"Second. That the verdict is so inadequate as to indicate that it was the result of passion, prejudice or mistake on the part of the jury.

"Third. That the verdict is against the weight of the evidence as to the damage sustained by plaintiff."

The motion was taken up and, after considering the same, the court made the following order:

"The motion of the plaintiff for a new trial, having been submitted to the court and duly and fully considered, it is now ordered and adjudged by the court that said motion be and that same is hereby sustained on the grounds stated in said motion; i. e.,

"'1. That the verdict is grossly inadequate.

"'2. That the verdict is so inadequate as to indicate that it was the result of passion, prejudice or mistake on the part of the jury.

"'3. That the verdict is against the weight of the evidence as to the damages sustained by the plaintiff,' and which is accordingly ordered and adjudged, by the court, that the judgment heretofore entered herein on the fifth day of December, 1905, be and the same is hereby set aside and vacated and that a new trial be and hereby is granted herein to which order and judgment in sustaining said motion for a new trial the defendant duly excepted at the time."

Defendant appealed from this order.

Judgment affirmed.

Jamison & Thomas for appellant.

(1) To warrant interference, on the ground of excessiveness or inadequacy, with the verdict of the jury in a case of damages, the verdict must be so excessive or inadequate as to indicate prejudice, passion or mistake. Goetz v. Ambs, 27 Mo. 28; Kennedy v. Railway, 36 Mo. 351; Whalen v. Railroad, 60 Mo. 323; Walker v. Railroad, 87 Mo. 37; Cochran v. Railroad, 131 Mo. 607; Boyd v. Westinghouse, 132 Mo. 579; Merrill v. City, 12 Mo.App. 466; Hemelrich v. Garlos, 24 Mo.App. 264; Brown v. Railway, 51 Mo.App. 192. (2) Cases wherein damages were held to be inadequate: Donovan v. Gay, 97 Mo. 440; Choquette v. Railway, 152 Mo. 257; Welch v. McAllister, 13 Mo.App. 89. (3) Cases wherein damages were held not to be inadequate: Pritchard v. Hewitt, 91 Mo. 547; Bogges v. Railroad, 118 Mo. 328; Leahy v. Davis, 121 Mo. 227; Dowd v. Westinghouse, 132 Mo. 579. (4) Appellate court will reverse action of trial court in granting new trial of suit for damages, where the new trial is ordered under the erroneous view that damages allowed by the jury were inadequate. Lee v. Knapp, 173 Mo. 385; Edwards v. Railway, 82 Mo.App. 478; Yates v. Shanklin, 85 Mo.App. 358.

A. R. Taylor and Morris Tucker for respondent.

OPINION

BLAND, P. J. (after stating the facts).

--1. Appellate courts will reverse the action of trial courts in granting new trials in suits for damages whenever it satisfactorily appears the discretion of the trial court was arbitrarily and unreasonably exercised. [Whitsett v. Ransom, 79 Mo. 258; Chouquette v. Railway, 152 Mo. 257, 53 S.W. 897.]

In Goetz v. Ambs, 27 Mo. 34, in respect to the granting of new trials, on account of the awarding of excessive or inadequate damages by the jury, in actions of tort, the court said: "The general rule on this subject is well stated by Mr. Sedgwick, in his work on Damages (p. 466): 'That, although the courts are entirely satisfied that the damages are excessive and altogether beyond a compensation for the actual loss sustained, they will not, on motion for a new trial, interfere with the finding unless the verdict is so extravagant as to bear evident marks of prejudice, passion or corruption.'" This general rule has been adhered to by the appellate courts of this State. [Dowd v. Air Brake Co., 132 Mo. 579, 34 S.W. 493, and cases cited.] It is also the rule in this State, that the appellate courts possess the power to order a remittitur when the verdict is excessive. [Chitty v. Railway, 166 Mo. 435, 65 S.W. 959; Broyhill v. Norton, 175 Mo. 190, 74 S.W. 1024; Barnes v. Lead Co., 107 Mo.App. 608, 82 S.W. 203.] To a much greater degree is the trial court possessed of this power, and the power to set aside inadequate verdicts.

2. In Chouquette v. Railway, supra, it is said: "It is the peculiar duty of trial courts to grant a new trial where the verdict is arbitrary or the result of passion, prejudice or misconduct on the part of the jury." And in Yates v. Shanklin, 85 Mo.App. 358, it is said that the court's action in such circumstances will not be questioned in the appellate court, except in case of manifest abuse.

The action of the court in setting aside the verdict should be sustained, unless it appears from the evidence it acted arbitrarily, or that its discretion was unreasonably exercised. The contention of defendant is, that the evidence in regard to the injury does not warrant the finding of the circuit court. This contention requires that some attention be paid to the evidence in respect to the injury.

Dr. Frank Ring, an experienced physician and surgeon, testified on behalf of plaintiff as follows:

"Q. Did you ever have occasion to examine the right arm of the plaintiff, Robert Brent Richardson? A. Yes, sir.

"Q. When did you first examine it? A. On March second of this year.

"Q. Have you examined it since? A. Yes, sir.

"Q. When did you examine it last? A. Two or three weeks ago.

"Q. Will you tell the jury what evidence of injury you found on that right arm? A. There is evidence of fracture above the elbow joint, involving the joint.

"Q. How does that affect the arm? A. He is unable to extend it fully. Its flexion is impaired--the flexion of the elbow joint is impaired.

"Q. To what extent can he extend it? A. About an angle of forty-five degrees, or a little beyond a right angle, I should say he can go now.

"Q. In your opinion, Doctor, will that injury affect the use of the arm in the future? A. The flexion of the arm is impaired permanently."

On cross-examination the above witness further testified as follows:

"Q. Doctor, you say you examined him on March 2, 1905? A. Yes, sir.

"Q. And also two or three weeks ago? A. Yes, sir.

"Q. Did you notice any difference in the condition of the arm as it was on March second and two or three weeks ago? A. Practically, the same.

"Q. Was there any difference? A. An extension was made then and is made now.

"Q. You say it is practically the same; isn't it in better condition now than it was then? A. I don't think so, about the same.

"Q. It isn't any worse? A. I think not.

"Q. Now, Doctor, you simply made an examination of it by baring the arm and passing your hands over the parts, and then drew your conclusion from that, didn't you? A. Partly and partly by palpation.

"Q. What do you mean by that? A. Feeling it and partly by trying to extend the elbow joint.

"Q. You didn't use an X-ray on this arm? A. No, sir.

"Q. Isn't it a fact that you can't really tell actually to what extent these injuries have been, or are, without an X-ray examination? A. No, sir; it isn't a fact.

"Q. Can you tell us what kind of a fracture that is? A. It is a fracture of the lower end of the humerus involving the joint. The inflammation extending into the joint, making it impossible to straighten the joint out. He can raise it up and down, but that is the most he can do with it."

Dr. Brent Murphy, who treated the injury, testified for defendant. After stating that he had examined plaintiff's arm on or about October 5, 1904, witness testified as follows:

"Q. What condition did you find the arm in at that time, Doctor? A. Well, the motion of the arm is all right except that it doesn't straighten perfectly. He can't straighten his arm perfectly, but he can straighten it out about that far (illustrating).

"Q. How many degrees is that, about ninety degrees?

"Mr Taylor: Forty-five degrees is a right angle.

"Court: Ninety degrees.

"A. This would be about 180 degrees, halfway between right angles--halfway between a right angle and being perfectly straight.

"Q. About halfway between a right angle and being perfectly straight? A. Yes, sir.

"Q. You say he could use it in every respect...