State v. Ellison

• Decision Date: 02 June 1916
• Docket Number: No. 19329.,19329.
• Parties: STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

186 S.W. 1075

268 Mo. 225

STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. ELLISON et al., Judges.

No. 19329.

Supreme Court of Missouri, In Banc.

June 2, 1916.

Certiorari by the Atchison, Topeka & Santa Fé Railway Company against James Ellison and others, Judges of the Kansas City Court of Appeals, to quash the record of said Kansas City Court of Appeals. Record and judgment quashed.

This is an original proceeding by certiorari to bring up the record of the Kansas City Court of Appeals in the case of H. C. Smith, Appellant, v. Atchison, Topeka & Santa Fé Railway Company, Respondent, 180 S. W. 1036, lately pending in that court, and wherein the judgment of the court nisi was reversed and the case remanded, with directions to enter judgment below in accordance with the verdict. From this it will be seen that the appellant, Smith, had judgment below, which, upon motion of respondent therein, was set aside, and Smith appealed.

The facts in the case of Smith v. Railway, supra, are brief, and these facts, together with the action of the jury and the court nisi therein, are thus stated by the learned Kansas City Court of Appeals in their opinion now before us:

"Plaintiff boarded defendant's electric passenger car at Gower, Missouri, for the purpose of being carried as a passenger to St. Joseph, in the same state, a distance of twenty miles. He did not have a ticket, stating that he had not time to purchase one after his arrival at the station. The legal rate of fare was 2 cents per mile, and according to that rate he tendered the conductor 40 cents for the full distance he wished to go. The conductor refused the offer, and demanded 60 cents, which would be 3 cents per mile. Plaintiff refused to pay it, and the conductor, in the presence of the passengers, told him he would stop the car and put him off. Plaintiff persisting in his refusal, the conductor stopped the car, took plaintiff by the arm and led him to the door and put him off. After being put off he stated to the conductor that he was a deputy sheriff and he `would like to go on.' The conductor replied with an oath that he did not care who he was; he would not take him.

"Plaintiff brought an action for $1,000 compensatory and the same amount as punitive damages. A trial was had, and a verdict returned for $5 for the former, and $500 for the latter. On motion for new trial the court suggested that the punitive damages were excessive, and that, if plaintiff would remit $400, the motion for new trial would be overruled; if he did not, it would be sustained. Plaintiff refused, and a new trial was thereupon granted."

The Court of Appeals, as forecast above, held that the action of the court nisi in granting a new trial to defendant railroad, for the failure of plaintiff Smith to enter a remittitur therein, was wrong and thereupon reversed and remanded the case, with directions to the trial court to enter judgment on the verdict as returned by the jury. As reasons for its action in such behalf the Court of Appeals said:

"But defendant insists that, instead of looking into the record to see if there was any evidence in plaintiff's favor tending to support the verdict, we should endeavor to ascertain if there was any evidence in defendant's favor tending to support the conclusion of the trial court that the verdict was excessive. It being conceded that, if a trial court granted a new trial on the ground that the verdict was against the weight of the evidence, an appellate court will only look to see if there is any substantial evidence supporting the court's order, defendant claims that there is no difference in that instance and the case at bar. It therefore claims that, as there was substantial evidence in the record tending to show the punitive damages assessed by the jury were excessive, we should affirm the order granting a new trial.

"We think defendant misconceives both what the court did and what it had the power to do. In the first place, the trial court did not grant a new trial to defendant because the court thought no case was made against it, or that there had been any error in the trial. The court found that plaintiff had a case both for compensatory and punitive damages, and would have overruled the motion for new trial, except the court took upon itself the duty of measuring the punitive damages, and in so doing found they were too much, and that, unless plaintiff would remit down to $100, a new trial would be granted. Plaintiff's refusal to do so was the sole ground and immediate cause of granting a new trial. Therefore, as we have said, there being substantial evidence to support the verdict, it should be allowed to stand, unless the trial court properly ordered it to be reduced.

"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 due, but as a punishment to the defendant and 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."

Relator contends that the judgment in said case of Smith v. Railway, supra, ought to be quashed and for naught held, for that it is contrary to the decision of this court in the case of McCloskey v. Publishing Co., 163 Mo. 22, 63 S. W. 99, and other cases ruled by us, which either expressly or tacitly followed the McCloskey Case.

Toward an ascertainment and discussion of this contention what we say below will be directed.

Culver & Phillip, of St. Joseph, for relator. Charles F. Strop and Graham & Silverman, all of St. Joseph, for respondents.

FARIS, J. (after stating the facts as above).

I. Our statute (section 2022, R. S. 1909) and the decisions of all of the appellate courts construing it have been peculiarly benevolent and encouraging to the trial courts in the matter of giving such courts a broad discretion in passing upon the weight of the evidence in their consideration of motions for a new trial. The statute is definitely expressive of a few phases of the court's inherent powers, and our own rulings upon it are so sanctified by age and uniformity as to have become almost elementary. Regardless of the seeming weight of the evidence opposed to the action of the court nisi in setting aside a verdict of a jury on this ground, we do not interfere so long as there is any substantial evidence to bolster up the trial court's action. It is only when, had the verdict been the other way about, we would not for lack of supporting evidence have permitted it to stand, that we interfere with the trial court's discretion.

In a late case en banc (Lyons v. Corder, 253 Mo. loc. cit. 561, 162 S. W. 606) Bond, J., properly and succinctly stated the trial court's powers in these behalves thus:

"The law is well settled in this state, that where a trial judge exercises his discretionary power of setting aside a judgment on the ground `that it is against the weight of the evidence,' his action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. In which event, the exercise by the trial court of his power to grant a new trial, although put upon a discretionary ground, is deemed to be unjudicial, and it is the duty of this court to reverse his ruling in that respect. Foley v. Harrison, 233 Mo. loc. cit. 507, 508, 136 S. W. 354; Smoot v. Kansas City, 194 Mo. loc. cit. 532, 92 S. W. 363; Casey v. Transit Co., 186 Mo. loc. cit. 232, 85 S. W. 357; Fitzjohn v. Transit Co., 183 Mo. loc. cit. 78, 79, 80, 81 S. W. 907."

II. But the moment the trial court has ruled adversely upon the motion for a new trial, and has thus put the seal of its approval upon the verdict of the jury, the point of view of the appellate court upon matters having reference to the weight of the evidence changes diametrically, and all presumptions are to be exercised in favor of the verdict (Gould v. St. John, 207 Mo. 619, 106 S. W. 23), and it must be upheld if there is any substantial evidence to uphold it. Hence the seeming contrariety of ruling and the futility of citing cases which rode off upon the latter point in aid of a state of facts in which the former point is...