St. Louis, I. M. & S. Ry. Co. v. Adams

• Decision Date: 18 March 1905
• Citation: 86 S.W. 287
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. ADAMS.
• Court: Arkansas Supreme Court

86 S.W. 287

ST. LOUIS, I. M. & S. RY. CO. v. ADAMS.

Supreme Court of Arkansas.

March 18, 1905.

On motion to allow remittitur. Granted.

For former opinion, see 85 S. W. 768.

Dodge & Johnson, for appellant. Oliphint & Hardcastle, for appellee.

RIDDICK, J.

On motion of plaintiff to be allowed to enter a remittitur. We have heretofore decided that the judgment of the circuit court in this case should be reversed, and a new trial ordered, on account of error in the admission of evidence which, to quote from the opinion delivered, was "calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted." The court was of the opinion that the evidence was sufficient to warrant a verdict against the defendant, and that the error committed did not affect the finding of the jury on the question of whether the defendant was liable for the injury suffered by plaintiff, but that it probably enhanced the damages found by the jury. The counsel for plaintiff now asks leave to be allowed to enter a remittitur for such sum as will relieve the judgment of any excess in the way of damages, and remove the effects of the error in the admission of improper testimony.

The first question presented is whether a judgment for any amount can be permitted to stand in a case of this kind, where there has been improper evidence admitted. "The tendency of the late decisions," says Mr. Sutherland in his work on Damages, "is in the direction of unqualified support for the practice which allows the appellate and trial court, in cases in which excessive damages have been awarded, and in which the plaintiff is entitled to substantial damages, to indicate the excess, and give him the option to remit and take judgment for the residue, or to be awarded a new trial." Sutherland on Damages (3d Ed.) § 460. A question similar to this was considered by this court in a recent case, where it was said that the "theory upon which a remittitur is allowed is that the appellant has no just complaint, save that the damages are excessive, and that, inasmuch as the appellate court can say that the given verdict is excessive, it can designate an amount that will not be, and give the successful party the option to remit the excess or submit to a new trial." But in that case the court held that the remittitur could not be allowed, because the error complained of might, in the opinion of the court, have affected the verdict on the question of whether the defendant was liable for damages or not. Railway Co. v. Waren, 65 Ark. 628, 48 S. W. 222. The court in that opinion was discussing a case in which the damages were held to be excessive. But a remittitur may be permitted not only to cure the excess in a verdict which is plainly excessive, but also to cure any possible effect of evidence improperly admitted, the effect of which may have been to unduly enhance the amount of the damages. For, to quote the language of a late decision of the Supreme Court of Wisconsin, "There is no good reason to restrict the practice so as to exclude any case, whether on contract or sounding in tort, where the plaintiff is clearly entitled to recover, and a sum can be named which, in all reasonable probability, will not exceed the amount which a jury will ultimately give him." Baxter v. Ch. & N. W. Ry. Co., 104 Wis. 307, 80 N. W. 644. Where the right to recover is clear, and has been established by the verdict of a jury, and where the errors committed in the trial go only to the enhancement of the amount of the verdict, and do not affect the question of whether defendant is liable or not, then, if the verdict be excessive, or if, on account of improper evidence, or improper argument of counsel, tending to enhance the amount of damages allowed, the court is not able to say from the evidence that the verdict is not excessive, and that the defendant was not prejudiced in respect to the amount of the damages assessed by such improper evidence or argument, the court may, in its discretion, name a sum which is clearly not excessive, and, as a matter of grace to the plaintiff, allow him to accept judgment for that amount, instead of a new trial. Railway Co. v. Waren, 65 Ark. 628, 48 S. W. 222; Little Rock & Ft. S. Ry. Co. v. Barker, 39 Ark. 491; Baxter v. Ch. & N. R. Co., 104 Wis. 307, 80 N. W. 644; McCarthy v. Whitcomb, 110 Wis. 113, 85 N. W. 707; Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113; Rueping v. Ch. & N. W. Ry. Co., 116 Wis. 625, 93 N. W. 843, 96 Am. St. Rep. 1013; Telegraph Co. v. Frith, 105 Tenn. 167, 58 S. W. 118; Trow v. Village of White Bear, 78 Minn. 432, 80 N. W. 1117; Wimber v. I. C. Ry. Co., 114 Iowa, 557, 87 N. W. 505; Ribich v. Lake S. S. Co., 123 Mich. 401, 82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215; Belt v. Lawes, 12 Q. B. Div. 356; 2 Sutherland on Damages (3d Ed.) § 460; 13 Cyc. 134. In doing this the court does not invade the province of the jury, for the court is not undertaking to state the exact amount of pecuniary loss which plaintiff has suffered, but is only naming an amount which, under the evidence, the court can see is clearly not excessive. As the matter of permitting a remittitur to be entered, and allowing the judgment to stand for the remainder, is largely a matter of discretion, the court will be less inclined to grant this privilege where the errors at the trial have been gross, or where improper conduct on the part of plaintiff or his counsel has been such as to excite the prejudices of the jury; and it will be more inclined to grant it in cases where there has been a fair and impartial trial, but where, on account of mere error in the finding of the jury, the damages allowed are greater than the evidence justifies.

As the error pointed out in this case was not a very culpable one, or one that involves any reflection on plaintiff or his counsel, and as, in the opinion of the majority of the judges, the only just ground for objection to the judgment rendered is that, on account of the improper evidence admitted, it may be, and probably is, larger than would otherwise have been rendered, and to that extent excessive, we are of the opinion that it is within our discretion to permit a remittitur to be entered, and to allow the judgment for the remainder to stand. But before naming the amount that we think should be remitted, we will call attention to the principles by which it seems to us that the court should be guided in ascertaining the amount to be remitted. In the case of Railway v. Hall, 53 Ark. 7, 13 S. W. 138, where the trial court erroneously instructed the jury that they might allow exemplary damages, the learned judge who delivered the opinion of the court, refusing to permit a remittitur, called attention to the various elements that went to make up the damages in a case of tort for personal injury, such as loss of time, pain and suffering, etc., said: "The difficulties which beset a court in determining the justness or excessiveness of a verdict based on these premises alone would not be inconsiderable. But superadd the element of punitive damages erroneously allowed, and...