186 Mo. App. 296 | Mo. Ct. App. | 1914
— A judgment was rendered in the circuit court of Pemiscot county for the sum of two thousand dollars in plaintiff’s favor. His cause of action was based upon an alleged assault made upon him by the defendant’s brakeman, and the said brakeman knowingly permitting a news agent on the train to assault plaintiff. From the record we gather that there had been a former trial of this case which for some reason not appearing did not result in a
The defendant (appellant) assigns a number of errors which we have examined and find that none would justify a reversal excepting the one we will discuss in this opinion, namely: “Because the verdict of the jury is so much against the evidence as manifestly to be the result of bias or prejudice.
We think the record sustains appellant’s contention ; and realizing that it is only in extraordinary and extreme cases where appellate courts grant new trials on the ground that the judgment is against the weight of the evidence when the trial court has refused to do so, but entered a remittitur instead, we have, after much consideration, concluded that the interests of justice require that this case be retried. The trial judge found that the verdict was so excessive as to demand that it be reduced. In such cases it is to some extent discretionary whether the verdict be reduced by remittitur or a new trial be granted; and that discretion is subject to review by this court. In some cases, the demands of justice may be met by a remittitur; in others, only by a new trial.
Plaintiff testified that at the time of the trial he resided at Blytheville, was fifty-four years old, a member of the church, and did not get drunk; that in August, 1912, he was running a hotel at Luxora, Ark., and that in his business he sold soda pop at five cents a.
O. E. Butler, the barber, testified that he washed plaintiff’s head and saw one or two cut places in his scalp and found a small piece of glass, but that he did not put a bandage on plaintiff’s head; that plaintiff held his arm down at his side; that he did not know whether plaintiff was “grunting” from his arm or his head. He testified: “ Wasn’t complaining of Ms arm in particular. Could not say what his condition was as. to being drunk or sober; he was ‘grunting’ and ‘taking on’ so much.”
Lee Hooper testified that he met plaintiff on the street after the latter came out of the barber shop and that he complained of injuries to his shoulder and that the witness took him to Doctor Phipps’ office; that plaintiff was holding his right hand down by his side; that he (the witness) saw the doctor examine the arm and give plaintiff a hypodermic, and saw the doctor prepare to bandage the arm, but left the office before this was done. He testified that plaintiff was not intoxicated but that he did not know whether or not .plaintiff had been drinking.
Doctor Phipps testified for plaintiff that the injured man came to his office and that he treated the cuts in the scalp and put a bandage on plaintiff ’s head, and went into detail about the treatment to the head. Re did not recall that plaintiff complained of his arm or that he treated or bandaged the arm or that he gave plaintiff a hypodermic injection; nor did he recall that anytMng was wrong with plaintiff’s arm, and thinks he would remember if he bandaged the arm. He thought from plaintiff’s action that he had been drink
In rebuttal, J. F. Sanders testified that since the last of January or the first of February before the trial in July, plaintiff had resided next door to him and that he had heard plaintiff complain of his arm and had seen plaintiff carry his right hand in his bosom or his watoh pocket; that he saw plaintiff set out some trees for Mr. Collins, but that he only held on with his left hand while some one else filled in around them. Quoting from his testimony: “I am swearing I never saw him set out any trees, himself or dig the holes himself. So far as I know he may have done that. ’ ’
Plaintiff’s uncle, J. H. Harper, saw plaintiff frequently after the trouble in August. He travels and makes his headquarters at Nashville, Tenn. He testified that his nephew has not been able to use his right arm — that “he had not seen him use it.” He had seen plaintiff carry the arm in a sling or in his shirt. He testified that plaintiff had been taking some orders for him but had done no manual labor.
Doctor Conrad testified that he had examined plaintiff’s arm in February before the trial in July, and that he thought it measured one-eighth of an inch smaller than the left arm, but he could not tell whether plaintiff was left-handed of not. He testified that the day after plaintiff was injured he saw plaintiff’s arm in a sling and that plaintiff told him it was bandaged. He does not say that he saw a bandage on plaintiff’s shoulder. He testified that plaintiff wanted him to take the bandage off but that he did not do so. He said he testified in a former trial of iMs ease and that he did not think the injury was necessarily a perma
It will be seen that the evidence of plaintiff’s witnesses bears the stamp of negative rather than positive testimony.
Plaintiff in rebuttal denied some of the evidence introduced by the defendant, but did not explain why 'he went to Doctor Conrad the day after the injury instead of going back to Doctor Phipps who had treated and bandaged his arm, as he says, the day before.
We have emphasized some of the things concerning which plaintiff’s own witnesses contradict him.
O. M. McCleary testified that he was acting as a helper to 0. A. Owens the news agent with whom plaintiff had a fight; that when he (McCleary) sold plaintiff the soda pop plaintiff was in the chair car; that when he went back to get the bottles plaintiff informed him that he had bought them and had a right to throw them away; that “when plaintiff raised up, he saw that plaintiff was going to make trouble, ’ ’ and that he left and went into the smoking car, telling plaintiff he would give him the bottles, but that plaintiff got up and followed into the smoking car where he called the witness “several sons-of-bitches” and “a Grod damn liar;” that plaintiff followed him up> and down the aisle and called him these vile names several times, but that he did not strike the plaintiff; that he was in the smoking car when plaintiff called Owens, the head news agent, vile names; that Owens thereupon hit him with a bottle and struck him in the face and on the head a number of times; that while this was going on, Pat Kelleher, the brakeman, came up, pulled Owens off the plaintiff and pushed him away, but. did not hit the plaintiff or
Owens corroborates McCleary as to what took place in the smoking car. He testified that he heard plaintiff cursing McCleary; that plaintiff called him (Owens) “a Grod damn thief;” that when plaintiff did so the witness began fighting, striking plaintiff over the head with a glass candy horn which broke; that Kelleher did nothing but come up and pull him off the plaintiff and push him away; that Kelleher did not at that time touch the plaintiff or twist his arm around the seat. He testified that plaintiff had been going up and down the aisle cursing; that plaintiff was drunk and that he could smell whiskey on his breath; that he would curse McCleary every time he came in the smoking' car.
Kelleher testified that he was the brakeman on the train and was seated in the back of the car in which the. trouble occurred; that when he saw it he came up, pulled off Owens, and did not at any time strike or touch plaintiff except to put his hand on plaintiff’s breast to push him into his seat when he started to get up and follow Owens after he (Kelleher) had separated them; and that he separated them as soon as he could after the fight begun. He testified that plaintiff appeared to be intoxicated and was cursing and swearing at the news boys.
The conductor saw none of the trouble. He did testify that he saw the plaintiff walking up and down the aisles and that he had the appearance of having been drinking.
Defendant then introduced some witnesses whose testimony we will next summarize who were mere spectators, some of whom were neighbors of the plaintiff. No. attempt was made to show that they .bear any ill-
John Johnson testified that he resides at Blythe-ville and knows plaintiff; that he was seated in the smoking car of the train in question and that plaintiff while in there acted like a man that was drinking; that he heard plaintiff cursing the news agents; that there were two news agents on the train; that he saw plaintiff come into the smoking car following the news agent and heard him make remarks about the train crew stealing and call the news agent vile names; that he saw the brakeman separate them and that the brakeman took no part whatever in the fight; that when plaintiff started to raise up> after the fight the brakeman did push him back in his seat; that plaintiff lives about a block from him in Blytheville; that he has observed plaintiff and that plaintiff did not carry his arm in a sling or in his bosom until the witness saw him at the other term of court, when plaintiff claimed he was “crippled up;” that he has seen plaintiff setting out shade trees and digging the holes with both hands at Doctor London’s home and that this was between July at the time of the trial and February, or March preceding.
C. Litton, who lives at Marked Tree, Ark., saw plaintiff board the northbound train at Luxora, August 11, 1912. He testified that plaintiff was drinking at the time and that “he had been drinking all morning and pretty well all night before;” that he knows plaintiff as a man that géts drunk.
C. E. Hurley testified that he lives at Blytheville; that he knew plaintiff from February 9, 1913, to June 20, 1913; that he lived close to plaintiff but never saw him carry his arm in a sling and that he saw plaintiff every day; that the first time he saw plaintiff carrying
Alf Mason who lives at Caruthersville saw plaintiff in April or May, 1913, setting out trees and testified that plaintiff was digging holes with a spade and nsing both hands.
Robert Lee Fisher testified that he was on the train in the smoking car and saw plaintiff; that plaintiff had the appearance of being a drunk man; that he heard plaintiff cursing the news agents, calling them “sons-of-bitches,” before he got into the fight; that he saw the fight and saw the brakeman separate them, pusMng the news agent away and maMng plaintiff sit down; that the brakeman did not grab plaintiff by the arm and pull it over the seat; that he was only three or four seats away from the plaintiff; that he was right there looking on at the fight and he testified that the brakeman did not touch plaintiff’s arm.
Jeff Collier’s deposition was introduced. He also saw the fight in the smoking car. He stated that plaintiff acted like he was intoxicated and that Ms conduct was very bad-; that he was cursing and swearing and calling the.news agents-vile names; that he saw the trouble and that the brakeman did not pull plaintiff’s arm around back of the seat.
This was the case put to the jury — the evidence on which they returned a verdict for five thousand dollars actual damages against tMs defendant.
The vital issue was whether or not the brakeman joined in the fight to injure plaintiff and pulled plaintiff’s arm around the seat as described by the plaintiff, or was in good faith trying to stop the fight as it-was Ms duty to do. It will be noted upon reading the
It is impossible to understand how a fair and impartial body of men could arrive at the result this jury
Although it is true that the decisions in this State hold that an excessive verdict is not necessarily the result of passion and prejudice, it is an evidence of passion and prejudice. We have a verdict returned by this jury which the trial judge refused to let stand, having required the plaintiff to remit three thousand dollars of it before the motion for new trial was overruled. This, to our minds, is some evidence that as to amount the trial court found they had acted with passion and prejudice. When a case is presented to a jury and the overwhelming weight of the evidence is against the finding of the jury and where the verdict itself bespeaks passion and prejudice, nothing short of a reversal of the judgment and a remanding of the case can meet the endsi of justice.
It is true that in the case of Cook v. Globe Printing Co., 227 Mo. 471, 127 S. W. 332, the Supreme Court required a remittitur of an enormous sum of money and still upheld the verdict; but upon reading that opinion it will be seen that in the beginning of the discussion of this question the court said there was no error in the instructions, no error in admitting evidence and no misconduct shown on the part of the jury, and, continuing — “that the publication, %ohich is a basis of the action, was libelous, we think there can be no doubt whatever.” (Italics are ours.) In that case, the court on viewing the evidence which was before it found that plaintiff had a cause of action on the merits, and, since it concluded therefrom that plaintiff was entitled to recover, could not attribute passion and prejudice to the jury in finding the very thing that the court itself would have found. There was left in that case only the question as to the amount to be given.
The'law entitles; litigants to a fair trial before an impartial jury; and where an appellate court comes to the conclusion that either the plaintiff or the defendant has not been accorded his rights in this respect, it is not only their privilege but their sworn duty to see that justice is sustained, and if necessary it must grant a new trial, even though the trial court failed in its duty so to do. A remittitur in such a case does not meet the requirements of fair dealing and justice. If the defendant in this case is not liable, then as great an injustice is perpetrated on it should the verdict be for one dollar in amount. The result of injustice may be lessened by the smaller verdict, but justice is not subject to either long or short division; the decimal point should be after the word and not between the letters. There is a long line of decisions in this State holding that where a proper administration of the law to the end that justice be done requires that a new trial be had, an appellate court will see that it is granted. [See, Spohn v. Railway Co., 87 Mo. 74; Baker v. Stonebraker’s Admrs., 36 Mo. 345; Price v. Evans, 49 Mo. 396; Lehnick v. Street Ry. Co., 118 Mo. App. 611, 94 S. W. 996; Chitty v. Railway Co., 148 Mo. 64, 49 S. W. 868.] The closing lines of the opinion in the ease of Garrett v. Greenwell, 92 Mo. l. c. 125, 4 S. W. 441, are as follows: “Looking at all these things, it is a matter of profound surprise that the jury, with all this evidence before them, could have found as they did. But, inasmuch as they have done so, our duty, under
We feel that as plaintiff’s testimony on the vital question of whether or not the brakeman did what plaintiff says he did is unsupported by any eyewitness, and that as on other material questions in the case his testimony is disputed by not only the defendant’s disinterested, unimpeached witnesses, but by his own witnesses as well, the verdict of the jury in plaintiff’s favor was the result of passion and prejudice against the defendant, and that justice demands that a fair and impartial jury try the issues. The judgment must accordingly be reversed and the cause remanded for a new trial.