*1 OF SUPREME COURT MISSOURI. Bryаnt City Rys. Co. BRYANT, by F. BRY E. a HOMER Minor,
REVIS His Next CITY RAIL ANT, KANSAS Friend, Appellant. COMPANY, WAYS Banc, February 19, In 1921. Age:
1. of Tender Demurrer NEGLIGENCE: Child to Evidence:: injuries, allegation Pleading. personal In an action in an for plaintiff years petition the that was three and one-half old is a allegation danger crossing that he was oblivious his sufficient car, against objection a of a an demurrer street ahead street as evidence, petition not state a of action. the cause that did Question Jury. 2. -: Obstructed Conflict of View: Evidence: for the evidence view of the motor- Where as whether the conflicts child, by was man of a street car ran a over obstructed prevent seeing peril passing car another as to his child in so running by care, ordinary use in time to over avoid him jury, question for and the evidence is a demurrer properly overruled. may Misleading. 3. INSTRUCTIONS: An instruction be Verbose: misleading. not and verbose at same time Broadening -: To Peril: An instruc- 4. Issues: Oblivious Child. containing plaintiff if the tion find that clause peril” broaden issues made “oblivious his does pleadings, petition where the was three avers that and old, years allegation 'allegation fact one-half an peril. he was oblivious Defining. peril” Imminent 5. -: Peril: The terms “imminent English words, ordinary and used when an instruction need not be defined. Disregard Testimony: Physical -: To Facts: Common Obser-
6. Experience. An tells instruction which vation testimony may disregard they they far witness so physical may it to conflict with the facts shown find evi- experience proper. common observation dence and with Damages: Leg: Injuries. Other Loss Where -: Measure 7. petition alsо for the averred loss of sued injuries damages, instruc- an and the evidence showed other him, authorizing jury, they him such if for allow tion found they might evi- from a reasonable amount as find believe fairly justly injury compensate him for dence would ' Yol. City Rys. defendant, negligence so, carelessness “and caused leg,” although erroneous, of his left is not un- the loss little language
fortunate its *2 Objections. 8. Admission: EVIDENCE: Technical Mere ob- technical jections disregarded to be evidence will where counsel have stated fairly prejudicial, rеcord it shows free from in- competent testimony. Right though 9. TRIAL: to Be Plaintiff’s Present: Even Child. a plaintiff age incompetent testify to is of such tender be as to as witness, right present a still he an absolute has to be court during room before the tria^ action dam- of his for ages leg injuries. a for loss other Dicharging Jury. 10. -: -: -: ac- an damages injuries leg having tion for loss of a for other an right jury during present absolute to in court before the trial, discharge for to is not error the court to refuse presence. on motion of defendant such based Damages: Plaintiff, $15,000: 11. VERDICT: Excessive Remittitur. a years one-half child three and when cut old had left being street-car, off as the result of over recovered run damages, $30,000 for the full amount sued for. trial verdict required thereupon $15,000, court remit de- him to overruled Held, fendant’s motion for a new trial. should be $1,500, required to remit the further sum date judg- original judgment, of an affirmance such as a condition $13,500. of its ment date for Appeal Lucas, from Court.—Hon. O. Jackson Circuit A.
Judge. (conditionally). Affirmed Higgins ap-
Richard Sadler J. and Charles N. pellant.
(1) overruing’ The court tlie erred in demurrer terposed plaintiff’s evidence, at the close and renewed evidence, (a) petition at all close of failed any to state facts sufficient to constitute cause action. action, By omitting charge obliviousness, no cause of Knapp was stated. 195 Dunham, v. S. W. 1062; Kamoos Ry. Ry. 434; 202 Co., S. W. Haines Co., v. v. 203 S. W.
344 COURT OF MISSOURI. SUPREME
Bryant v. (b) App. Even 401. Mo. Sandler, Rubick v. 219 630; petition entire action, the stated cause part negligence upon of defendant. failed show Ry. Co., v. Grout 351; Mo. Railroad, Markowitz 186 v. Ry. 566; 180 Mo. App. 552; Co., 125 Mo. Roenfelt v. Ry. Haffey Ry. Boyd Co., 135 382; Mo. v. S. v. 105 Co., Ry. 196 Mo. Barnard 937; Co., 550; Mockowik v. v. W. Ry. Ry. App. Co, Bach v. 171 Mo. Mo. Co., 684; 137 Van v, App. Ry. Ry. 47; Banks 347; Co., Gessner v. 137 Mo. Ry. (c) Oglesby 488; Co., Mo. Co., 217 S. W. v. opposed knowledge, contrary general Evidence physical contradictory of facts itself not entitled any probative Guffey Harvey, force. 179 S. W. Ry. App. Co., 133 Mo. 731; 448; Schaub Sexton v. App. 272-3; 113Mo. Adams, Mo. Stafford v. *3 Oglesby Ry. 272; v. Bish 721; op, Co., v. 177 Mo. Weltmer App. Scroggins Ry. 116; Mo. Co., 215; Í71 Mo. v. 138 App. Ry. v. Tel. Co., 280; Daniels v. 177 Mo. Co., Strack (cid:127) App. Storage Co., DeMoet v. 121 Mo. 92. 601.; 216 Mo. (2) giving in' The asked court erred instructions plaintiff. Knapp 195 Dunham, v. S. W. 1062; Kamoos Ry. Ry. Co., 434; v. 202 W. Haines v. 203 S. W. Co., S. Harvey, 480; 630; Boles 208 W. Kirn v. Dunham, v. S. 203 479; Dunham, 652; 208 S. W. Simms v. S. Senn W. Toncrey Ry. Ry. 142; v. Mo. v. Co., Co., 108 129 Mo. App. Wigglesworth, 596; 906; 193 Martin S. W. v. Price Breckenridge, Ry. 52: 92 378; v. Mo. Co., Greer v. Klamp (3) Mo. 316; v. 19 449. The Rodenwall, court admitting incompetent, erred irreleveht and imma plaintiff. Ry. terial offered Senn Co., v. 108 142; M6. Hall v. & Co., Coal 260 351; Coke Mo. Glas gow Ry. (4) per 150 Co., v. Mo. 51. court erred in mitting parents plaintiff, objections over the keep defendant, to in and around the court room during exhibiting jury. trial, thus him to State Cyc. Pac. Easley Winnett, 904; v. 92 40 Ry. 2213; v. 113 Subway 246; Clack App. Co., Mo. 216; Ottoman v. 138 Co., Mo. Ry.
v.
Stamp
Co.,
v. 79 Steffens, 579; Mass. Harrington 157 Railroad, v. 302; Mo. Woodbury Anoka, v. 164; Wetmore, 52 Minn. Aldrich v. 89 Palls, Wis. Peppercorn River Black
52 Minn. v. 329; Wooldridge v. ; Lnquer N. T. 665 170 38; S. Bunnell, v. 366. T. Wright, Ky. Curry 166 N: S. Quast, 247; 105 v. jury. discharge refusing (5) The court erred (6) App. Subway verdict 216. 138 Mo. Co., Clack v. Ry. Applegate 173; Kin 252 Mo. Co., v. is excessive. Ostertag Ry. 261 Co., Ry. v. ney 23; 169 W. S. Co., v. Ry. Parrar v. 727; 182 Mo. Co., v. 463; Mo. Newcomb Ry. 566; 219 S. Railroad, v. W. 155 Hurst 439; S. W. Co., Brady Ry. Railroad, v. 97; 141 Mo. Co., v. Hollenback Swearingen Mining 212 524; Mo. v. 509; Co., 206 Mo. v, Ry. Ry. Co., v. 187 Harris 200 McWhirt Co., Ill;W. S. Ry. Lqssenden Ry. v. 830; 238; 247; Yost Co., W. v. Mo. S. Ry. 221 65; Mo. c. S. W. Co., 1, 252; Co., 245 Willitts v. Ry. (7) 217 verdict ren v. Co., S. W. grossly dered excessive as to show is so passion part jury. prejudice Willitts Ry. Ry. 497;W. 65; v. 221 W. 220 Co., S. Ganz v. S. Co., Ossenberg Riggs Ry. v. 421; Chemical 218 S. W. v. Go., Ry. 212 Co., 878; 155; W. Hulse W. Co., 214 S. S. Young Davenport v. Lusk, 640; V. 268 Mo. Electrical City, Co., 564; Mo. Lundahl v. Kansas 209 W. 11; S. City, 13; Henson v. 210 S. Turnhow v. W. Co., 41; Co., 211 W. 615; S. v. Brick S. W. Johnson Haynes 123; 108 Mo. Nichols Trenton, v. Glass *4 516; Railroad, 27 W. nish 165 Mo. 543; S. v. Fur Cambrón Chitty 102 Railroad, 438; Railroad, v. Mo. v. 166 Taylor Railway, 185 435; 239; Mo. v. Mo. Stoltze v. 188 Mo. v. 112 Railroad, 581; Chlanda Transit Co., S. Ry. Ry. Co., 645; 249; W. Partello v. 217 Mo. Norris v. Ry. Campbell 659; Co., 141; 239 Mo. 243 Co., Mo. v. Ry. Rodney Ry. v. Co., 396; Clark v. 234 Mo. Co., 127 Lyons 253 676; Railroad, 143; Mo. Mo. v. Dominick v. Ry. 305; Co., 255 Mo. Co., Coal Holzmer v. 169 S. W. Gibney 102; 204 Mo. Co., 704; v. Transit Morrell v.
346 COURT OP MISSOURI. SUPREME
Bryant v. Kansas 569; Laurence, 100 Mo. Ry. Co., 363; 203 Adams v. Mo. 87 Railroad, v. 364; Mo. Waldker Ry. Co., v. 185 Markey Well- 351; Mo. Ry. App. 170 37; Co., Mo. v. Wellborn 164 v. Railroad, McDonald 154; v. 219 Mo. man. Ry. Co., 307; 159 Mo. Co., App. 56; Ry.' Aaron v. App. Mo. v. Kes- App. 676; Mo. Guilbert Co., 173 v. Ry. Stokes Mo. Co., Traction 145 Dent App. 680; v. singer, 173 Mo. 320; Clifton 211 Mó. 61; Co., Davidson Transit v. App. 226 Mo. Co-., Moore v. Transit Railroad, 708; v. 232 Mo. 542. Co., v. Ill W. 689; Ry. Waddell S. G. Kyle respondent.
Harry
tke
overruling
court
not err
Tke trial
did
(1)
plaintiff’s
tke
demurrer,
at
close
offered
appellant’s
case. Simon
of tke entire
at tke close
case,
again
205 Mo.
Co.,
Transit
Co.,
65;
231
Ry.
Cytron
v.
v.
Mo.
v.
263;
Mo.
Wise
207
692;
Co.,
Transit
Cornovski v.
Mo.
Co., 194
Ry.
v.
Co.,
546; Koenig
Transit
198 Mo.
Co.,
624;
Ry.
140
v.
564;
Ry.
Levin v.
Sckmidt
Co.,
Mо.
173; Wagner
Mo.
645;
Ry. Co.,
Meeker v.
178
163 Mo.
Co., 141
Ry.
v.
Co.,
334;
v.
160 Mo.
Childers
App.
(2)
(6) passion and The not show verdict did part 219 W. jury. S. Railroad, Hurst v. injuries. Plain- personal J. Action GRAVES, of years time at the tiff, old child less than four friend, next injury, father as who sues herein his 39th cars West was one run over defendant’s of runs City, 39th Street Street in Kansas West Missouri. block in the occurred west, accident .east cross- street of Bell north-and-south Street, east ing pleaded covered negligence 39th. West the accident of the result As humanitarian rule. Upon amputated. trial the left to he of had upon hut of $30,000, a verdict before a secured required trial court motion trial for new judgment was en- done, to remit $15,000, was assignments of error A of $15,000, number tered for together substance, here, made those of been noted in course the relevant facts, will opinion. appellant contends that its demurrer I. The reasons. sustained for two should have been petition to state a First, because the fails Demurrer secondly, and, because action, cause of Evidence. negligence evidence fails show part of the defendant. these in Of order. petition that this three child, then does aver danger, years
and one-half oblivious old, crossing north 39th from the south to the side West time of that the Street, at the accident. is true petition age not so it does aver the aver, does but parents child. This sufficient. The this child brought against the defendant for suit loss service [Bryant City and medical attention. point Co., 217 632.] there, S. W. The same was made against ruled defendant. rule Appeals that case and we Court is sound SUPREME COURT OF MISSOURI. *6 Bryant Co. Such,
approve ruling the cases’ is sustained it. opinion the cited. requires question facts. some more
The other operated line on West Defendant double street car a p. m. 3:00 at about 39th The accident occurred Street. sky fog, was the March 1917. There was no but partially plainly visible clouded. The child was little danger point. approached The the witnesses up injury going west-bound car which did per was 2.1 grade east to cent from Genesee Street point fifty about feet Bell Street. accident, east streets Thе distance two north-and-south between these position appellant is about 270 that the feet. passing car, im- child darted from' east-bound behind' a mediately in front of the west-bound car. If this were liability there true, could be no under humanitarian negligence. rule, rule of other trouble tending contrary that-there is evidence state show upon jury of facts, and this evidence has found just against defendant. The evidence conflicts as (the doing injury) pass- when the car car west-bound space ed the east-bound сar within of this block be- tween Bell Street and Street. Genesee There is evidence tending passed to show that the last east-bound this car point fifty west-bound car at feet west of Genesee ample space Street. This would leave for the motor- boy man to see the little as he from came the south point side West 39th Street, accident is fifty seventy-five estimated at feet east of Bell Street, space and the block running at 270 feet. The car was very speed, variously at a to slow estimated at from four per upon ten miles hour. could been, this up-grade, stopped very quickly, safety passengers. present The evidence in record does not differ sub- stantially (upon from the evidence point) supra, Appeals and the Court of ruled that ample there was evidence which to take case jury under the' humanitarian jury rule. Vol. City Rys.
Bryant v. Kansas passing (under evidence) east- could that a find the motor- bound street the view car did obstruct that there they conclude man, have so found. "We submitting plaintiff’s case to a no error determination that defendant’s demurrer properly evidence overruled. error in
II. that there was The next contention is plaintiff. giving for the This Instruction No. I, instruction reads: you
“The court instructs find plaintiff, believe from the case, in this Revis *7 years Bryant, minor four Efton is of about a Bryant, acting is a§'e’ Homer F. ailcl i-bat Instruction: Misleading: Following Bryant, next as of Revis Efton friend said Pleadings. prosecution you suit, for the of and if this find
further from the and believe that on March 1917, 39th Street "West was one public City, Missouri, streets in that Kansas and p. day said seventh of March, 1917, at about 3:30 m. plaintiff crossing thereof, 39th said West Street, going point fifty north, at or a near about feet east of the curb on the line, side of Bell east and that Street, while on or tracks of near the defendant’s street rail- way, crossing point, and while street if said at said so, negli- one defendant’s west-bound electric cars carelessly, gently against plaintiff if ran so, and and over leg, thereby injuring his left so left said that it had amputated, be, you thereof, and was as a direct result from, if further find and believe the evidence that charge plaintiff, in the motorman said car saw or ordinary the exercise of care and caution could have plaintiff position seen near on or said track, and in peril being imminent struck said car and oblivious peril, you of his if time, find was, within reasonable you if ordinary there was, find the exercise of care stopped up to have slowed car, said and avoided said injury, injury if people upon so, and without said car negligently that-plain- failed do, so to so, and SUPREME COURT OF MISSOURI. Co.' negligence, if injury
tiff’s result such direct any, finding your must he for in that case against are further You defendant. by/ordinary in instruc- as care’ used instructed ordinary prudent as an herein, tions is meant such care person the same or exercise under and careful would by ‘negligence’ used similar circumstances, lack or want herein, meant, instruction is ordinary said care.” regret quote instruc- of this
We whole objections that it such should be done. tion, but argument on it is said: In the this instruction confusing misleading, involved, is “First. It ad likely to, that it mis- drawn and doubtless did, is so laymen. reading A' of this instruction lead fully out demonstrate our contention as above set along will line. erroneous, instruction is also that it “This does allegations petition, requiring follow the peril.” was oblivious of his find reading impress of the instruction does not us A hardly has we verbose, counsel. rather biff misleading. very pass A think it similar instruction has [Holmes muster our Banc. ed Court *8 l. c. 160.] 207 Mo. we
Nor do think used therein clause “oblivious peril” theory of the instruction bad, makes on the broadening pleading. that it is the issues madе petition good, The without expression, the use of this years because a child of such tender would have no idea of peril either very age or otherwise. imminent His made danger. allegation him in fact The oblivious to age as to his allegation he an that was oblivious to the imminent
peril. required The jury instruction to find him to be years age, age about four of and child of that would be danger. years oblivious As fact he was less than four age. regard instruction in this cannot be held to justify to be so erroneous as а reversal. Another com- Vol. peril”
plaint is defined. not the term “imminent is that require English no ordinary defi- words and are These are objections to this instruction nition. Other made fairly presents the law without instruction merit. the case. plaintiff’s objection lodged against,
III. next is Instruction reads: No. physical by the facts, evidence,
“If as shown experience in this and case and common observation Testimony: contrary to conflict the testi- with any m the it case, monv witness then Conflicting your duty to into such take consideratiоn with Physical Facts. physical common observation facts experience disregard testimony any contrary such witness conflict there- therewith to.” just grasp
It is hard to here, the contention hut as complaint gather we it the that the instruction directed disregard jury testimony witness, all of portion physical any thereof with conflicted facts and common observation. If the instruction it did this would it error, in so far directed the absolute exclusion portions of such evidence of the witness which physical not confliсt did facts common with obser- jury vation. The have should been left their discretion portions testimony or not believe believe such of physical of such witness did conflict with facts and common observation. under This, rule which parts to determine leaves mony what of the testi- they witness of such will they accredit, when find wilfully falsely portion sworn has in of his testimony. argument say: Counsel their correctly
“This instruction should stated, law, state the as we it, understand should disregard part testimony witness’s in conflict physical facts or common observation. We have no *9 ,the telling fault to find with instruction jury if that MISSOURI. SUPREME COURT OF City Rys.
Bryant v. Kansas physical contrary facts testimony any to witness physical they take the common should observation, and facts preference the testi- in to and common observation testimony mony say we witness; but do that ought subjects excluded. to be witness on other such testi- if It is true that that a witness determines justified thing, they falsely be one would as to fies testimony, theory disregarding that if his entire other; but a false in he false one would be might testify might perfectly honest, be witness рarticular thing concerning certain a state of facts impossibili- physical that a chain was a of circumstances ty, jury might yet believe that that witness was perfectly perfectly be belief, his and would honest in subjects.” willing to him on all other believe wrong placed trouble that counsel has con goes This instruction no the instruction. struction disregard portion than tell further physical testimony conflict with is found The clause ‘‘to common observation. disre facts, and gard testimony such conflict there witness contrary testimony thereto” in con with refers experience, physical facts and common and not flict with portions testimony of such witness. to other testimony, only of his to such refer to all but does not physical portions facts it conflicts wherein words construe observation. In other we common just appellant’s ar be counsel1 his instruction to what principles says gument under be, should fixed law. Instruction No. for
IY. is conceded to but No. in- correct, instruction is attacked. This struction reads: you
“You further instructed find for plaintiff, you him should allow a reasonable such you may from the amount as and believe find compensate fairly justly him
would for i-Yju’T negli- caused the carelessness Measure of Damages. gence of defendant, if so, the loss *10 Yol.
Bryant City Bys. Co. plain- any, leg. the left allowed amount, his tiff total The is the amount cannot the exceed $30,000, sum which plaintiff for sued for. The sued snch fact, that however, your verdict its snm, must no or manner influence you amount, favor.” find in his should language. little unfortunate instruction is a plaintiff damages all was entitled rеcover for negligence hy him, were of the de- occasioned the injuries fendant. leg,” “the left Those loss of his included, petition “plaintiff according (1) that and pain great suffered has and continue to and will suffer anguish body’’ (hy mind reason loss and leg) (2) great the left and “has shook to his suffered system, nervous and has lost will continue to and lose sleep, by natural his rest and that and reason of his age inability get by and around reason of loss leg, body, system of his his nervous and mind been impaired permanently injured body and that his devеlop grow strength mind will itas would by ordinarily physical incapacity, reason of the said earning capacity totally has been and will he impaired day total shall have from after majority obtained his until his death.” appear petition So it does not from the leg injuries mere loss left absence sole complained hy plaintiff, urge as learned counsel argument in their mere loss of the it brief. Nor is true that only injury shown physician prior evidence. The testified that to and after amputation “profound the child from suffered detailing shock.’’ Without further evidence as to how the accident occurred, and its attendant circumstances fearful say results, it is sufficient to that this in- struction, even quoted, with the clause first above could only not have been harmful. allowed injuries damages plaintiff (such for as the evi- showed) negligence dence occasioned of defendant. foregoing plaintiff’s covers instructions. De- fendant received all the Nothing instructions it asked.
286 Mo.—23 MISSOURI. COURT OP SUPREME y. limiting the particularly more defendant was asked its instruc- proven. injuries far recovery So given acquiescence the one go, seems to tions there damages. mean, We measure on plaintiff’s objected instruc- to all of whilst defendant tions, damages. measure none offered *11 objections admission to the There are some V. char- in they technical testimony are so but of sufficient them deem do not acter, that we Evidence: opinion there- consequence this to encumber Technical Objections. argument thus classifies of counsеl with. The objections: these repetitions throughout this some
(cid:127)“While there were plaintiff indulged by defendant, and both and in case, testimony immaterial elicited some while there was reading that it is the abstract will show sides, both incompetent testimony. fairly prejudicial, There from free questions which we believe were and answers some prejudicial incompetent, and immaterial, irrelevant and ” particular attention, follows. call to we desire to following specifications gone have over, we
These impression expressed. above with urged was error in the fact VI. next there plaintiff parents kept that the about the court and presence during jury the trial. His before is the thing objected pre- defendant. a At appears rious trial, the week before, Trial: Plaintiff's Presence. the child had been as a witness, offered owing years, course, to his tender was ex- cluded. At appeal the trial from Avhich this was kept, taken, the child was most time, of the out hallway building, of the of the outside court-room. This, bеcause the was sworn mother as a witness the case, placed being the rule, under was excluded from the court-room, child was her. However, at jury times the him, saw both in this hall, the pa- court-room. evidence fails to show undue TERM, 1920. '355 Yol. jury. in their plaintiff He was rading before way only presence, walking crutch, and was he could walk. testify young was plaintiff was too
Because He excluding court-room. no him from the reason right plaintiff inhe had case, in the ex- court- which ever the court-room. know of We no prеsence parties to an action from cluded appellant jury, do not the go cited the authorities they them. Cer- so far. not follow did, If would we tain it court ruled. This is, no has-so Missouri complaint of defendant merit. is without objected pres- only
VII. defendant jury, before the ence but moved have jury discharged for that reason. At leg. most the could see absent but Trial: Discharging Jury. right But, if the had court when his being cause discharge heard, we ruled, this motion to was well ruled below. *12 Lastly
VIII. it is contended the verdict is excessive. In this connеction it should be said that the only permanent injury child, as shown the evidence, leg. this is loss of the were other There tern- porary injuries, but even the shock to the Excessive Damages. system permanent by not is shown to be the plaintiff. doctors who testified for There a shock, right which the had a consider, but was tem- porary, speaks. so far as this record It to true is cutting in down this' verdicts court has consider the peculiar facts of Especially each case. is this true as injuries. to the character of the thе In instant case right, the no had to recover for medical and right similar Nor had he attentions. to recover up for the of value his services to the hour of his ma- jority. For these items mother and father have already [Bryant recovered sum of $3000. 217 W. S. damage 632.] As to the earning his OP MISSOURI. COURT SUPREME CO
CO IQ- day of begin capacity with claim he must this life probability continued of age majority. At his rec- books older. The be were is less than it would ognize this view. sus
Up has never very recently court until simple $10,000 than tained a verdict for more 219 S. 566, 280 Mo. Railroаd, [Hurst limb. loss undertaken heretofore l. we Nor have 568.] W. c. fluctuating purchasing damages measure these Railway, power Hurst v. the case of the until dollar, supra. wherein The cases 280 566, Mo. S. W. cases permitted $10,000 stand than we have more other with was combined permanent of the the loss wherein injuries injuries. other have no We bar. case at that the loss fulL and the fact
In the instant case age years, complete begins at the service power damage period to work from such decreased might longer heretofore than the cases serve, be yet those cases were adults ruled, considered $10,000 attention, medical covered allowed when recovery is com this case. Plere minority, completed, during pleted, so far it will expenses recovery have been and the allowed yet parents. judgment In this verdict some $5,000 our high too the trial court should have reduced original judgment $15,000, $10,000 instead as was .to long This line of done. the same accords our cases, supra. case, in the ai*е cited Hurst Others urged like tenor. is, however, could be cited of here, case, as it Hurst’s into take we should con power purchasing sideration dollar. Such *13 power fluctuating purchasing rule, wrouldbe because Right pur of fluctuates. the dollar at this moment power chasing rapid of the dollar is aon increase. year may greater Next month or next be much something might happen, than now unforeseen might greatly again. point and it decrease stability is, purchasing there is no such about the Vol. CO City Kys, power justify thе courts of will value, our unit respond adopt along for line contended rule (large precedents with We are satisfied ent. number) precede these cases case, and Hurst’s power fluctuating purchasing exclude idea exchange. the medium of plaintiff, judgment, if the
We therefore affirm this days will remittitur sum of within ten enter a original judgment, so $5,000 as and of date of judgment may that the $10,000, remain as as and of the original. date If such he not entered, remittitur judgment then and the cause reversed remanded express- for retrial in herein accordance views ed. opinion foregoing PER CURIAM: The Graves, coming disposition
J., adopted Division, for in Banc, is alleged questions so as the far error de- liability fendant’s are concerned. Walker, J.,C. concurs except in all that is said the reference to Hurst’s case. majority judges A think verdict should stand $13,500 for than $10,000, rather as indicated in the opinion opinion Graves, J., and the is modified to extent. To Higbee, this modification T. James Blair, David E. JJ., Blair Elder, concur, Walker, C. ' judgment J., JJ., Woodson and Graves, dissent. The is therefore affirmed condition that the re- days, mit, within ten the sum of as and of $1500 the date original judgment; judgment otherwise, the will he reversed and the cause remanded.