Wells v. Sanger

• Citation: 21 Mo. 354
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 July 1855
• Parties: WELLS, Respondent, v. SANGER & OTHERS, Appellants.

21 Mo. 354

WELLS, Respondent,

v.SANGER & OTHERS, Appellants.

Supreme Court of Missouri.

July Term, 1855.

1. The supreme court will not reverse for excessive damages, unless they are so exorbitant as at first blush to show malice or improper bias.

2. Surprise of a defendant by the unexpected close of plaintiff's case, no ground for a new trial.

3. Newly discovered cumulative evidence no ground for a new trial.

Appeal from Callaway Circuit Court.

The case is stated in the opinion of the court.

Gardenhire, for appellants.

1. The verdict was obtained by the fraud of the plaintiff in suppressing the truth, and should be set aside. 2. The damages are excessive. (15 Mass. 365.4 Mass. 1. 16 Pick. 541. 13 Mo. 427. 5 Mo. 205.) 3. The surprise of the defendant at the trial is a ground for setting aside the verdict. (Practice Act, art. 11, § 3. 1 A. K. Marsh. 334. 2 McCord, 313. 3 McCord, 258. 9 Dana, 134. 25 Wend. 263. 1 Iowa, 134. 7 Monroe, 59. 2 Sm. & M. 313.) 4. The newly discovered evidence was good cause for a new trial. (7 Metcalf, 478. 18 Vermont, 460. 20 Conn. 305.)

P. R. Hayden, J. W. Morrow, and J. F. Jones, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was an action by plaintiff against Sanger & Burnell, part owners of a stage coach, for injuries received by the plaintiff from the upsetting of the coach in which the plaintiff was at the time a passenger.

During the progress of the case in the court below, the defendant, Burnell, died, and Preston B. Reed, the administrator of his estate, was duly made a party defendant.

The case was tried by a jury in the Callaway Circuit Court, at the April term, 1855, and a verdict rendered for the plaintiff for eleven hundred dollars. A motion was made by defendants for a new trial, which being overruled, they bring the case here by appeal.

The refusal of the Circuit Court to grant a new trial is the principal ground relied upon here by the defendants for a reversal of this judgment. They contend that the verdict was obtained by fraud, and also that the damages are excessive.

The plaintiff, in his petition, stated that, by the overturning and upsetting of the defendants' stage, he had his right shoulder and shoulder-blade, and three of his ribs broken, fractured and mashed; and that he was also, in other respects, greatly hurt, bruised and wounded, by means of the turning over and upsetting of the said stage coach.

On the trial before the jury, the great struggle seemed to be, to show when the injuries to the plaintiff were in reality received by him. The defendants contended, and endeavored to show to the jury, that the plaintiff received the injuries in the state of Ohio, before he started to Missouri, by means of his riding horse falling down with the plaintiff and fracturing his shoulder, and dislocating it; and that the injuries stated in his petition were not received by him by the overturning and upsetting of the defendants' stage coach, but by the fall of the horse. The plaintiff endeavored to show a complete recovery from the effects of the fall of his horse, and that the overturning of the stage was the cause of his injuries. The proof showed that the stage driver was drunk, and that he overturned the stage in a level piece of prairie, with some seven or eight passengers, besides the plaintiff, in it. The plaintiff complained very much of the injuries received at the time. The defendants contended that this was a fraud on the part of the plaintiff, in order to recover from them compensation for injuries which he had previously received, and which the defendants did not, in the least, contribute to inflict. This matter was put before the jury by both parties. The defendants produced some ten or twelve depositions from persons in Ohio, showing the state of the plaintiff in regard to the injury received from the fall of the horse, and what he said about his situation in reference to said injuries; the plaintiff proved his ability to work after the fall, his assisting in shocking corn; his helping to unload the steamboat at St. Louis, by carrying from it to the wharf pig iron: this was on his way out to Missouri, and shortly before he started up in the stage of the defendants.

Many instructions were given by the court, at the motion of the parties; one of which, given for defendants, and numbered 5, is as follows: “If the jury believe from the evidence, that the injury complained of by the plaintiff was occasioned by the fall from a horse or otherwise, in the state of Ohio, previous to his coming to this state, and that plaintiff was still suffering from the effects of said injury when the stage was upset, and that plaintiff received no additional injury thereby, then they will find for defendants; and if any additional injury was received in consequence of said upsetting, then they will find only such damages as will compensate said plaintiff for such additional injury.”

This instruction placed before the jury, properly, the fact of a previous injury, and directed them not to give damages for such previously received injury, if they should be of opinion there was such, and to give damages only for such additional injuries as were received by the upsetting of the stage. This matter, then, in which the defendants allege the plaintiff's fraud to consist, was brought out and placed before the jury; it was left open for them to consider and pass upon it.

Had this matter of the fall of the horse in Ohio, and the previously received injury of the plaintiff, not been before the jury--not been brought out by a vigilant, searching inquiry into its nature and extent, and fully placed before the jury, with proper and liberal instructions in regard to it by the court, the defendants might very properly complain of the plaintiff's conduct, in saying nothing about the previous fall in Ohio. But, surely, there is now no reason, on this score, for the clamor raised by them of fraud. They knew the whole matter, and put it before the jury, and they complain because the plaintiff did not tell them about it. Would their having learned this matter from the plaintiff have enabled the defendants to use more diligence in procuring proof of it? Suppose the plaintiff felt himself entirely recovered from the effects of the fall in Ohio, before the upsetting of the stage, was he morally bound to tell that he had been injured before in the same shoulder, but had recovered from it? We cannot say that this judgment was obtained by fraud. Although the plaintiff may have been willing to conceal from the defendants all previous injuries; nay, may have been disposed to recover from the defendants for...