The State ex rel. American Car & Foundry Co. v. Daues

• Decision Date: 09 April 1926
• Citation: 282 S.W. 389,313 Mo. 681
• Parties: THE STATE ex rel. AMERICAN CAR & FOUNDRY COMPANY v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

282 S.W. 389

313 Mo. 681

THE STATE ex rel. AMERICAN CAR & FOUNDRY COMPANY v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

April 9, 1926

Writ quashed.

Watts & Gentry and Arnot L. Sheppard for relator G. A. Orth of counsel.

(1) This court has announced the rule to be that where a trial court has granted a new trial because the verdict of the jury was excessive, such action of the trial court should be upheld if there is any substantial evidence to support it. Respondents' opinion directly conflicts with the rule laid down by this court in the following cases: State ex rel. Ry. Co. v. Ellison, 268 Mo. 225; Spivack v Bakery Co., 214 S.W. 168. (2) The opinions of this court hold that where the trial court grants a new trial because of the excessiveness of the verdict, its action must be considered by the appellate court in the same light as though a new trial had been granted because the verdict was against the weight of the evidence. Respondents' opinion failed to follow that rule and is in direct conflict with it, as announced in: State ex rel. Ry. Co. v. Ellison, 268 Mo. 225; Spivack v. Bakery Co., 214 S.W. 168; McCloskey v. Pub. Co., 163 Mo. 22. (3) Respondents' opinion is grounded upon the theory that where there is substantial evidence to support the original verdict which has been set aside by the trial court because of its excessiveness, the court's action amounts to an abuse of discretion. The rule as announced by this court is exactly to the contrary, viz., that where there is substantial evidence which would have supported a verdict for the opposite party had the jury found in his favor, the action of the trial court in granting the new trial should be sustained. In so holding, respondents' opinion is in direct conflict with the rule announced by this court in the case of State ex rel. Ry. Co. v. Ellison, 268 Mo 225. (4) The opinion of respondents proceeds upon the theory that when passing upon the propriety of the action of the trial court in sustaining the motion for a new trial the same rule should be applied as when passing upon the action of the trial court in overruling the motion for a new trial. This holding conflicts with the following last and controlling decisions of this court: State ex rel. Ry. Co. v Ellison, 268 Mo. 225; State ex rel. v. Ellison, 256 Mo. 661.

N. Murray Edwards and Douglass, Inman & Horsefield for respondents.

(1) The opinion of the Court of Appeals does not contravene any well-established principle of law based upon the facts set out in the opinion of the Court of Appeals as declared by this court in any of the cases cited by relator. (2) Where a trial court in granting a new trial abuses its discretion, or, acts arbitrarily, such action will be reviewed by an appellate court. Borach v. Mosler Safe Co., 288 Mo. 83. (3) A verdict of three thousand dollars is not excessive for the loss of seventyfive per cent of the sight of an eye by a young man the age of plaintiff, as has been repeatedly held by this court and the courts of appeals. See cases cited in opinion of Court of Appeals.

OPINION

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 Company, reported in 270 S.W. (Mo. App.) 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 twenty-five per cent of normal, or, in other words, that the plaintiff has lost seventy-five 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 he 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 the 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 had been suffering with for years. In the 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 seventy-five per cent of the vision of an eye of a man twenty-nine 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 seventy-five per cent of the sight of an eye of a man twenty-nine 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 seventy-five 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., 237 S.W. 902, and cases therein cited.] See, also, as to size of verdict, Knott v. Missouri Boiler & Sheet Iron Works, 299 Mo. 613, l. c. 641, 253 S.W. l. c. 758; Adams v. Ry. Co., 287 Mo. l. c. 554, 229 S.W. 790; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91."

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 seventy-five 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 seventy-five 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, 268 Mo. 225, and McCloskey v. Pulitzer Publishing Co., 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. 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...