103 Mo. App. 454 | Mo. Ct. App. | 1903
(after stating the facts as above).— The rule of law in Missouri has been announced with incessant repetition, that the function or duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial court, and unless it is manifest and apparent that its judicial discretion has been abused or that injustice has been done, its ruling in that regard will not be disturbed by an appellate court. Kuenzel v. Stevens, 155 Mo. 280; Chouquette v. Railroad, 152 Mo. 257; Lee v. Geo. Knapp & Co., 137 Mo. 385; Parker v. Cassingham, 130 Mo. 348; Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463; McCullough v. Ins. Co., 113 Mo. 606; Rice v. Evans, 49 Mo. 396; Reed v. Ins. Co., 58 Mo. 425; Woolfork v. Tate, 25 Mo. 597; Mason v. Onan, 67 Mo. App. 290; Powell v. Railway, 59 Mo. App. 335; Ensor v. Smith, 57 Mo. App. 584; Longdon v. Kelly, 51 Mo. App. 572.
The testimony offered strongly tended to establish that plaintiff, a peaceable, law-abiding citizen of high character, without cause for suspicion, was unjustly denounced and subsequently prosecuted by defendant’s servants, upon the charge of disturbing the peace, and his detention by them prior to arrest by the officer, was attended by rough, insulting and offensive conduct on their part toward him, wholly unprovoked,' and which defendant made no effort to palliate, justify or explain, and appears to have continued the perpetrators in its employ at the time of the trial of this cause. Assuming the verity of the evidence on behalf of plaintiff, whicb as stated, defendant did not seek to deny, the plaintiff was entitled to liberal and full redress for the wrong done him, and the testimony authorized punitive damages as well as actual damages, but we can not escape the conclusion that the jury permitted the sympathy aroused for plaintiff to outweigh its judgment in the return of a verdict for $1,500 actual damages and $1,000 exemplary damages. This court has quite recently had occasion to review actions for malicious prosecution: in the one, a verdict of two thousand dollars, equally divided by the jury as punitive and actual damages, was condemned .as excessive and appearing vindictive, and one thousand dollars adjudged full compensation to plaintiff for the actual damages suffered by him, and sufficient punishment.of defendant for the wrong committed. Ruth v. Transit Co., 71 S. W. 1055, 98 Mo. App. 1. In the other case, a total finding of two thousand dollars was made, of which $375 was assessed as the punitive portion. This court required a remittitur of the excess of $950 over $500 upon the finding on the second count, stating that the latter sum would be