State v. Daues

Citation282 S.W. 389
Decision Date09 April 1926
Docket NumberNo. 26183.,26183.
PartiesSTATE ex rel. AMERICAN CAR & FOUNDRY CO. v. DAUES et al., Judges.
CourtUnited States State Supreme Court of Missouri

Certiorari to St. Louis Court of Appeals.

Original proceeding in certiorari by the State of Missouri, at the relation of the American Car & Foundry Company, against Charles H. Danes and others, Judges of the St. Louis Court of Appeals, to quash their opinion in the case of Cobb v. American Car & Foundry Co., which can be found in 270 S. W. 398. Writ quashed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for relator.

N. Murray Edwards and Douglass, Inman & Horsefield, all of St. Louis, for respondents.

BLAIR, C. J.

This is an original proceeding in certiorari whereby the relator seeks to quash the opinion of respondents in the case of Cobb v. American Car & Foundry Co. (Mo. App.) reported in 270 S. W. 398. Cobb recovered a judgment against relator in the sum of $3,000 on account of alleged injury to his eye through alleged negligence of relator. The trial court required Cobb to remit $1,000 of the damages awarded by the jury, on the ground that the verdict was excessive, or suffer a new trial. Cobb refused to make such remittitur. A new trial was thereupon granted to relator. Cobb appealed to the St. Louis Court of Appeals. That court reversed the order granting such new trial and remanded the case to the trial court with directions to reinstate the verdict and enter judgment in accordance therewith.

It is the contention of relator that the opinion of respondents contravenes certain controlling decisions of this court and it asks that such opinion be quashed. Said opinion is quite brief and we quote it practically in full as follows:

"The sole question brought here for review is whether or not the learned trial judge abused his discretion in granting a new trial on the ground that the verdict was excessive. There is no controversy but that the sight of plaintiff's left eye is but 25 per cent. of normal, or, in other words, that the plaintiff has lost 75 per cent. of the sight thereof. The record discloses, however, a sharp conflict in the testimony adduced on behalf of the plaintiff and that adduced on behalf of the defendant as to the cause of the loss of sight. Plaintiff and his experts testified to facts tending to show that plaintiff's loss of sight is the result of an injury to his eye received in defendant's plant, while the experts of the defendant testified to facts tending to show that whatever loss of sight plaintiff suffered was due to trachoma, a disease which plaintiff had been afflicted with long prior to the time that plaintiff was hurt in defendant's plant.

"Under this record, then, the real question in issue was whether the loss of sight in plaintiff's left eye was entirely due to the injury alleged to have been sustained at defendant's plant, or whether the loss of sight was entirely due to trachoma, a disease which plaintiff admitted he has been suffering with for years. In light of the sharp conflict in the testimony on this question, the issue was peculiarly one for the jury, and they determined it in plaintiff's favor. Having done so, we can but rule that the verdict of $3,000 for the loss of 75 per cent. of the vision of an eye of a man 29 years of age, in good health and with good sight up to the time of the alleged accident, is not excessive.

"The trial court did not set aside the verdict herein as against the weight of the evidence, but sustained the motion for new trial (plaintiff having failed to enter a remittitur) on the ground that the verdict was excessive. Therefore, the trial judge must necessarily have been of the opinion that there was substantial evidence adduced that plaintiff met with his injury as set out in his petition, and that the verdict was not against the weight of the evidence. In this state of the record, it may well be said that the only question to be considered on this appeal is whether or not a verdict of $3,000 is excessive for the loss of 75 per cent. of the sight of an eye of a man 29 years of age.

"We fully appreciate the rule that it is peculiarly within the province of the trial judge to set aside a verdict which is excessive, and particularly so in cases where the extent of the injury or disability is disputed. One of the reasons assigned for the rule is that the trial judge has an opportunity of being present throughout the trial, hearing the testimony of all the witnesses, and observing their manner in testifying. In the instant case, however, since the order of the trial court clearly shows that in his view there was substantial evidence to support a verdict on the issue of fact in plaintiff's favor (and the record does abundantly so show), and there is no dispute but that the plaintiff has lost 75 per cent. of the sight of his left eye, we are of the opinion and it becomes our duty to rule that the verdict of the jury, namely, $3,000, was not excessive, and that the learned trial judge abused his discretion in setting aside the verdict on the ground that it was excessive. Heeter v. Boorum & Pease Loose Leaf Book Co. (Mo. App.) 237 S. W. 902, and cases therein cited. See, also, as to size of verdict, Knott v Missouri Boiler & Sheet Iron Works, 253 S. W. loc. cit. 758, 200 Mo. 613, loc. cit. 641; Adams v. Ry. Co., 229 S. W. 790, 287 Mo. loc. cit. 554; Laycock v. United Rys. Co., 235 S. W. 91, 290 Mo. 344."

Respondents made it very clear that they were distinguishing the case before them from cases where the evidence upon the extent of the injuries sustained is conflicting and a remittitur has been ordered by the trial court. Respondents held that there was no controversy that Cobb had sustained the loss of 75 per cent. of the sight of his left eye and that the sole controversy in the trial court was concerning the cause of such loss of sight. That is to say, that there was no issue in the trial court that the loss of sight was partly due to trachoma and partly the result of the injury there in question. Relator makes no contention that respondents' ruling that $3,000 is not an excessive award of damages for the loss of 75 per cent. of the sight of one eye conflicts with any controlling decision of this court. The cases cited in respondents' opinion well support the amount of the award made by the jury, if such loss of sight was due solely to the alleged injury.

Relator contends that respondents' opinion conflicts with State ex rel. A. T. & S. F. Ry. Co. v. Ellison, 186 S. W. 1075, 268 Mo. 225, and McCloskey v. Pulitzer Publishing Co., 63 S. W. 99, 163 Mo. 22. In State ex rel. v. Ellison, the plaintiff below had been put off a train for failure to pay fare at a rate of more than two cents per mile. He recovered $5 compensatory and $500 punitive damages. The trial court required a remittitur of $400 of such punitive damages on the ground that the amount awarded by the jury was excessive. Plaintiff refused to remit, and a new trial was granted. The Kansas City Court of Appeals reversed the judgment of the trial court and directed that judgment be entered upon the verdict. Smith v. Atchison, T. & S. F. R. Co., 180 S. W. 1036, 192 Mo. App. 210. The Court of Appeals so ruled because, as it said:

"If there is evidence in a case which tends to support a verdict for punitive damages, the court cannot interfere as to the amount, except it be so disproportionate to the wrong committed by the defendant as to strike all reasonable men that the jury, in fixing upon the sum found, have acted corruptly, or from passion and prejudice. It is a species of allowance made to the plaintiff, not because it is his due, but as a punishment to the defendant and a deterring example to others. While a plaintiff has an absolute right to compensation for a wrong committed against him, he has no absolute right to demand that the defendant be also punished. The jury may inflict the punishment, but it is left absolutely with them."

This court en banc quashed the opinion of the Kansas City Court of Appeals. 186 S. W. 1075, 268 Mo. 225. It was first held, in harmony with all the cases, that the action of a trial court in setting aside a verdict as being against the weight of the evidence will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial was granted would be allowed to stand. This court then considered whether an award of punitive damages could be reduced when deemed excessive. Judge Faris said:

"But be this as may be, the modern rule in this (Cook v. Globe Printing Co. 227 Mo. 471), as well as in a great majority of other jurisdictions, is trending toward the fixed view that trial and appellate courts have the same power of supervision over the one sort of damages as they have over the other sort. (8 R. C. L. 680, 681). The differences are only in degree, growing out of difficulties met by the courts in exercising this power. (Sperry v. Hurd 267 Mo. 628.)"

It thus appears...

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