Sofian v. Douglas

• Decision Date: 07 June 1927
• Docket Number: No. 19797.,19797.
• Citation: 295 S.W. 828
• Parties: SOFIAN v. DOUGLAS.
• Court: Missouri Court of Appeals

295 S.W. 828

SOFIAN v. DOUGLAS.

No. 19797.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Ida Sofian, by her next friend, Mollie Sofian, against Thomas H. Douglas. Judgment for plaintiff. From an order sustaining a motion for new trial after plaintiff's refusal to make remittitur, plaintiff appeals. Affirmed and remanded.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Wilbur a Schwartz, of St. Louis, for respondent.

DAUBS, P. J.

This is an action by a minor, through her next friend, for damages for personal injuries. There was a verdict and judgment for plaintiff in the sum of $5,000. The defendant filed a motion for new trial, asserting, among other grounds, that the verdict was excessive. The court ordered a remittitur in the sum of $1,500. Plaintiff declined to make such remittitur, whereupon the court made an order setting forth the failure of plaintiff to comply with the order and then sustained defendant's motion for new trial solely on the ground that the verdict was excessive. From the order sustaining the motion for new trial, plaintiff has appealed.

The pleadings are not involved. The action is for injuries sustained by plaintiff, who, as a pedestrian, was struck by an automobile driven by defendant on one of the streets in the city of St. Louis. The petition relied upon a violation of the speed ordinance of the city of St. Louis, a violation of certain statutes, and the humanitarian doctrine.

The answer is a general denial, with a plea of contributory negligence.

The sole question, then, is whether the court erred in granting a new trial on the ground that the verdict is excessive. In ordering the remittitur, it appears that a clerical error was made in writing $15,000 instead of $1,500. However, that no one was misled by the clerical error is certain, since the order of the court granting a new trial sets forth the figure as $1,500 instead of $15,000, and counsel for appellant in pointing out this irregularity say they have not brought this appeal "on such narrow ground," and treat the remittitur as being for $1,500 rather than for $15,000.

As to the injuries, the evidence is: That plaintiff, a girl about 18 or 19 years of age, was knocked down by defendant's automobile. That she was unconscious and was taken to a hospital, where, she says, she remained dazed for a day or two. She remained in bed for two weeks. That she vomited for three days, and that she had headaches and dizzy spells thereafter at intervals for about six weeks. That the injury caused bruises to her legs and knees. She testified also as to having lost the sense of smell entirely, and that her sense of taste was impaired. On cross-examination, she said she had suffered no cuts or marks in the accident and that she lost no blood. She said she was nervous.

There was a sharp conflict in the proof as to the extent of these injuries. Plaintiff says that she could taste bitter, sweet, sour, and salty things, but could not detect blended flavors; that before the accident she was normal in that sense; and that her sense of smell was now entirely gone. She testified that two weeks after the injury she went back to work as a stenographer, but that her employer was lenient and did not require her to work very hard.

X-ray photographs taken of plaintiff's head showed no fractures, and it is not contended that any of the injuries are permanent, excepting to the taste and smell.

Dr. M. W. Hoge, a nerve specialist, testifying for plaintiff, said that the condition she complained of with reference to being dizzy and vomiting, etc., could have been caused from a concussion of the brain; that by concussion of the brain is a shaking up of the brain substance, but that those conditions often subside. As to the condition of her sense of smell, he said he could not make an examination because he would have to rely upon her answers, and that such testimony on his part therefore would not be of much advantage. He testified as to finding certain symptoms indicating that she had had concussion of the brain, and that an injury such as complained of by plaintiff could cause a total loss of smell and taste, but that he did not test the sense of smell especially because he intended to refer plaintiff to a nose specialist he testified that plaintiff gave evidence of some nerve disturbances.

Dr. E. J. Norris testified for pla...