Sofian v. Douglas

• Decision Date: 30 December 1929
• Docket Number: No. 29487.,29487.
• Citation: 23 S.W.2d 126
• Parties: IDA SOFIAN, By Her Next Friend, MOLLIE SOFIAN, v. THOMAS H. DOUGLAS, Appellant.
• Court: Missouri Supreme Court

23 S.W.2d 126

IDA SOFIAN, By Her Next Friend, MOLLIE SOFIAN, v. THOMAS H. DOUGLAS, Appellant.

No. 29487.

Supreme Court of Missouri, Division One.

December 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor Falkenhainer, Judge.

AFFIRMED AND REMANDED.

Wilbur C. Schwartz for appellant.

(1) The verdict of the jury in the sum of $1,000 is a substantial sum under the evidence in this case, and is the second verdict returned by a jury in favor of the plaintiff, and the court erred and abused its discretion in setting aside the verdict of the jury. Boggess v. Street Railway Co., 118 Mo. 339. (2) The amount of the verdict itself is no indication of bias on the part of jury. Cochran v. Wilson, 287 Mo. 210; Clifton v. Railroad, 232 Mo. 715.

Banister, Leonard, Sibley & McRoberts for respondent.

(1) The trial court has the widest latitude and discretion in awarding a new trial for inadequacy of damages. Our appellate courts refuse to interfere unless this discretion has been clearly and manifestly abused, or has been "unmistakably unwisely exercised." Kelly v. Columbia Box Co., 248 S.W. 589; McCarty v. Transit Co., 192 Mo. 396; Settles v. McGinley, 296 S.W. 846; Dorset v. Chambers, 187 Mo. App. 276; Sofian v. Douglas, 295 S.W. 828; Bergler v. University City, 233 S.W. 753; Sullivan v. Wilson, 283 S.W. 743. Our appellate courts are less inclined to interfere where a new trial has been granted than where it has been refused. Devine v. Wells, 300 Mo. 177. This court may consider the former verdict of $5,000 in determining whether or not the trial court clearly abused its discretion in setting aside the last verdict of only $1,000. Hackett v. Ry. Co., 170 Ill. App. 140; Loker v. Elec. Ry. Co., 94 Mo. App. 481. (2) The verdict of $1,000 for the serious and permanent injuries sustained by plaintiff was ridiculously small, and the trial court was well within its discretion in setting aside such a verdict. For loss or impairment of the sense of smell, see Jones v. Ry. Co., 99 App. Div. 1; Cent. Ry. Co. v. Bannister, 96 Ill. App. 332, 195 Ill. 48; Brown v. Evans, 8 Sawy. 488, 109 U.S. 180; Ott v. Tel. Co., 127 Minn. 373, sense of smell impaired, severe headaches, nasal bones fractured, fracture of lower jaw. Fordyce v. Jackson, 56 Ark. 594. (3) The trial court thought this $1,000 verdict so grossly inadequate as to indicate bias, a circumstance to be considered by this court. Kelly v. Columbia Box Co., 248 S.W. 589.

ELLISON, C.

This is an action for personal injuries sustained by plaintiff, then a girl some nineteen or twenty years of age, in being run down by defendant's automobile, driven by himself, while she was walking across a public street in the city of St. Louis. The jury gave her a verdict for $1,000. She filed a motion for a new trial upon the grounds, among others, that the verdict was against the weight of the evidence, was inadequate and was the result of passion and prejudice of the jury. The motion was sustained by the trial court for the reason, as assigned of record, that "the court feels that the verdict of the jury in assessing damages shows a prejudice and bias in that the amount awarded is inadequate." From that order the defendant has appealed. The damages being laid in the petition at $10,000, the appeal was brought to this court.

Upon a former trial the plaintiff recovered a verdict for $5,000. The defendant filed a motion for a new trial. The court made a conditional order for a remittitur of $1500. The order was not complied with and the court sustained defendant's motion for a new trial on the stated grounds that the verdict was excessive. The plaintiff appealed from that order to the St. Louis Court of Appeals. The Court of Appeals affirmed the order and remanded the case. [Sofian v. Douglas, 295 S.W. 828.] The same learned judge presided at both trials.

The petition charges that while the respondent was walking across a public street in the city of St. Louis the appellant violently and negligently drove his automobile against her and knocked her down upon the street, thereby causing her serious and permanent injuries. Negligence is predicated upon a violation of a traffic ordinance, a statute and the humanitarian rule. The answer was a general denial, supplemented with a plea of contributory negligence. The reply denied the latter plea.

As the sufficiency of the evidence to justify the trial court's action in granting the new trial is challenged, a consideration of the evidence is necessary. The evidence, summarized in part and quoted in part, is as follows:

The impact of the automobile against the respondent was of such force as to shatter a headlight, bend a front fender of the car and to knock her down upon the paved street, rendering her unconscious. She was at once picked up by eye-witnesses and taken to Barnes Hospital.

At the trial she testified she had no memory of anything that happened after she had proceeded to about the middle of the street. She became partially conscious later that night or early next morning. When she saw doctors and nurses she realized that she was in a hospital. She had "terrific" pains in the head all over, particularly in the front part; she was dazed. After being in the hospital about a day she was given food. She could not smell or taste it. She vomited on numerous occasions, especially on the first two days. She remained in bed in the hospital nearly two weeks.

Upon leaving the hospital she went to her home, where for a few days she remained in bed before resuming her work as a stenographer. Although weak, nervous and dizzy, she was able to perform her work by resting occasionally. Her work was light, owing to the leniency of her employer. On one occasion she fell at her home from dizziness. She had suffered attacks of dizziness ever since the injury and down to the second trial. She was dizzy about once a week the first six months and occasionally thereafter. She had never regained the sense of smell in any degree. Her sense of taste was still impaired to the extent that she could taste sweet, sour, salt and bitter, but no blended flavors in food or otherwise.

While in the hospital the respondent was attended by Dr. Ernest Sachs, a specialist in brain surgery and a staff surgeon of that institution. His attendance began on the morning following the injury and he made and kept a record of the case.

A fair summary of Dr. Sachs's testimony reduced to narrative form is as follows: she was semi-conscious; she had vomited — when she came in she had evidence of abrasions — bruises on her arms and legs, and when I saw her she was semi-conscious — she could be roused, but she didn't answer questions intelligently. There was no evidence of bleeding, either from her nose or her ears, and examination of her nervous system showed nothing abnormal. She had an X-ray picture taken on admission and that showed no evidence of a fracture. The diagnosis at that time was made that she had a severe injury to her brain — so-called concussion, and these abrasions to her arms and legs. She continually complained of pains in the head. She said she couldn't smell.

In my own hand-writing I wrote this: "Complete loss of smell" — anosmia. She had about a degree of temperature for about four days. That is consistent with an injury to the brain or concussion, but doesn't necessarily have any connection. I put down also that the "patient evidently had a severe cerebral concussion, with nausea and vomiting; X-ray negative; has complete loss of smell; to have nasal examination to determine if there is a fracture to account for this." That is my note. The nausea persisted about two days. Nausea is a very common symptom of concussion of the brain. It is consistent with brain injury, but lots of people are nauseated who haven't any brain injury. Vomiting is also — corroborative. The loss of the sense of smell could have been caused by the injuries. The seat of the sense of smell is in the temporal lobe of the brain; it is the ultimate source of the sense of smell. If a person were thrown down in the street with sufficient violence to make that concussion it was perfectly possible to do permanent damage to that part of the temporal lobe that controls smell. It has been shown, and I have seen it frequently myself, that in a large number of cases where death followed injury the place where the brain was more frequently injured was at the tip of this portion of the brain. The jolt to the brain struck this bone and the individual was injured in that way. The nerves of smell start in the nose and come in through these little holes of the cribriform plate and go in a certain route (stated) and end in the temporal lobe.

I have seen the plaintiff (the respondent) twice since she left the hospital; first, just before the first trial and next just before this trial. I tested her and found no change in her condition, so far as the sense of smell is concerned, from what I found from prior examinations. The sense of smell plays some part in the taste or aroma of some food, some things. That is, some things we think we taste we really smell. The basic things we taste are sweet, sour, bitter, salt. The loss of the sense of smell is determined subjectively and by tests, not objectively. Each time I blindfolded her so she couldn't see what I brought and tested her sense of smell with such substances as oil of cloves, wintergreen and asafetida. She breathed the asafetida for fifteen seconds at least; it almost made me sick. She said she couldn't smell it, and so far as I could observe from watching her she didn't smell it. She didn't bat an eye.

Dr. M.W. Hoge, a neurologist, of St. Louis, had made four examinations of the respondent in different years, one of them shortly before the second trial. He found the right pupil larger than the left in a dim light, some damage to that part of the motor tract coming from the left side of the brain, no impairment of sensation over...