33 P.2d 553 | Mont. | 1934
Lead Opinion
The respondent argues that by reason of appellants making a joint motion for a new trial, and filing a joint notice of appeal, only such errors as may be common to both appellants can be considered on appeal. It has been the established rule of law in this state, since 1906, that on a joint appeal errors in common to both appellants may be considered by the supreme court so long as the position of one of the appellants is not antagonistic to the other. The question was squarely brought up before the court in the case of Anderson v. Northern PacificRy. Co. and Helena and Livingston Smelting Reduction Co.,
We submit that upon the authority in the case of Monaghan v.Standard Motor Co.,
Where a person driving a car, in which there are no defects and not at an excessive speed, as did defendant Thompson, is suddenly overcome by something that he has no control over or any warning that it was going to take place, and loses consciousness, it cannot be said that he is responsible for what takes place when he is in an unconscious state of mind, and has no control over the instrumentality that he is operating. (3 Huddy's Automobile Law, p. 75; Cohen v. Petty,
The appellant H.D. Lee Mercantile Company was not responsible for the acts of Thompson in the operation of his own motor-car. The general rule is that a salesman employed on a commission basis, who owns and operates an automobile to assist him in seeking his trade and whose movements are in no way controlled by his employer, is, with respect to the operation of the car, an independent contractor, so that his employer is not answerable for his negligent operation of the car. (2 Cyclopedia of Automobile Law, p. 1450; Stockwell v. Morris, (Wyo.)
Plaintiff's intestate, Catherine C. Reed, was not a guest of the H.D. Lee Mercantile Company, and even if Thompson was negligent, there can be no recovery against the company. "It is very generally held that a servant has no implied authority to invite or permit a third person to ride [in a] vehicle in his charge, and if in so doing the invitee sustains injuries through the negligence of the servant, the master will not be liable as the servant is not acting within the scope of his authority." (39 C.J., p. 1304, sec. 1502; 2 Mechem on Agency, 2d ed., sec. 1913; Berry on Automobiles, sec. 1214; White v. Brainerd ServiceMotor Co.,
At the time of the accident, appellant Thompson was not acting within the scope of his duties as a salesman for the defendant company. The general rule is that where the employer is sought to be held liable for personal injuries caused by the negligence of his employee, under the doctrine of respondeat superior, the decisive question is whether at the time of the accident, the latter was acting within the scope of his employment. (Hoffman
v. Roehl,
There is no foundation in the evidence upon which to base the assertion that Thompson was an independent contractor. Thompson was the company's representative in this part of the state; he had a written contract with his employer at that time; the employer had the right to terminate his employment at any time it saw fit; he could not fix the price of the goods sold, the employer could; he could not fix the terms upon which the goods were sold; these terms were fixed by the employer; he could not extend credit to customers without consent of the employer; the employer could reject orders taken by him if it saw fit to do so; the employer could direct him to call on customers or direct that he refrain from calling upon a particular customer; he was required to make reports to his employer. The employer left it up to him to work his territory as he saw fit, but retained the right to direct him in that work. "No single fact is more conclusive as to the effect of the contract of employment perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result *47
of the work itself." (Pemberton v. Fritts,
Appellants urge the belated defense that Miss Reed was not the guest of the Lee Company, and therefore it, as employer, was not held to any degree of care as to her. The record of this case discloses that beyond a doubt the case was tried upon the theory that if the defendant Thompson was acting within the scope of his employment as an agent and employee of the defendant, H.D. Lee Mercantile Company, in driving his car, both defendants would be equally liable for the failure of Thompson to use ordinary care in the use of the automobile. It is the established rule that a party is bound by the theory he assumes in the trial court, and that he cannot place the trial court in error upon a point not presented to or passed upon by the trial court. (Labbitt v.Bunston,
The Lee Company, the master, asserts that it cannot be liable, because Thompson at the time of injuring Miss Reed was not in the scope of his employment as its agent. That he was its agent at the time cannot be denied. Defendant company, as the courts express it, gave him a "roving commission," and the rule adopted when one has been granted a roving commission is that, in such case it is not necessary for the plaintiff to prove that at the time of the injury the employee was engaged in executing any particular business or *48
specific command of his principal. (See Poncino v.Reid-Murdoch Co.,
While great stress is laid by appellants upon the fact that Thompson was permitted to use his own auto, that fact is of no importance in determining the question as to whether or not he was in the course and scope of his authority under the particular facts here. The general rule is that where the master permits the servant to use the servant's auto in the master's business he is liable to the same extent and in the same manner as though the auto was the master's, entrusted to the servant. (Cook v.Sanger, supra; Southern Bell Telephone Co. v. Roberts,
After formal allegations alleging her appointment as administratrix of the estate of Catherine C. Reed, deceased, plaintiff in paragraph II of her complaint averred that at all times mentioned in the complaint, the defendant H.D. Lee Mercantile Company was a corporation engaged in the business of selling clothing in Montana, and that in conducting its business and in furtherance of the same the company had in its employ certain agents, persons and salesmen employed to call upon the customers of the company and solicit them to purchase of the company the merchandise which it had for sale, and in furtherance of the business the company operated and permitted to be operated certain motor vehicles and automobiles, and employed and permitted its agents, servants and salesmen to operate the same, and that at all times mentioned the defendant James Thompson was the agent, servant and employee of the company, by it employed as a traveling salesman, and at the times mentioned Thompson was acting within the scope of his employment and duties as such, and was the driver and operator in charge of an automobile used by the company. *50
In paragraph III plaintiff described the highway and the condition thereof, including the guard-rails alongside.
In paragraph IV it was alleged that upon the second day of September, 1929, Catherine F. Reed, "at the invitation of, and at the instance and request of the defendants, was riding in an automobile in the charge and possession of the said James Thompson, who was operating and driving" the same, which was then and there being used by the defendant company in its aforesaid business, and that Thompson, while acting as the servant, agent and employee of the defendant, within the course and scope of his employment operated the automobile in a negligent manner, by reason of which the invitee received injuries from which she died.
In paragraph V plaintiff alleged specific acts of negligence, in substance: (1) That the automobile was driven at an excessive rate of speed; (2) that there was a failure to keep any lookout ahead; (3) carelessly, negligently and recklessly driving the car on the left side instead of the right side of the highway; (4) failing to have the car under control.
Other allegations need not be stated.
The company and Thompson filed separate answers. Except that it admitted the death of Miss Reed on information and belief, and the existence of the highway, the company's answer was in effect a general denial, paragraphs II, IV and V of the complaint being specifically denied.
Thompson denied each and every allegation of paragraph II; admitted the existence of the highway and of the guard-rail along the left side thereof; answering paragraph IV of the complaint, he alleged that while in the company of Miss Reed and driving along the highway in a careful, prudent manner, at a reasonable rate of speed not exceeding thirty miles an hour, and on the right side of the road, he suddenly became stricken with a terrific pain in his head, causing him to lose consciousness and not to have the car under control, and that by reason of his unconscious state the automobile was veered to the left and collided with the guard-rail on the left-hand side of the highway, and had it not been for his unconscious *51 condition the collision would not have occurred. He admitted the death of Miss Reed and that she was employed at the time of her death. He denied the other allegations of the complaint. Plaintiff denied the affirmative allegations of Thompson's answer.
The action came on for trial April 10, 1933. When plaintiff rested her case in chief, each of the defendants moved for a nonsuit, which the court denied. At the close of all the evidence each of the defendants moved the court to direct a verdict against the plaintiff. These motions were overruled. The jury found a verdict in favor of the plaintiff against both defendants in the sum of $18,000, and the court entered judgment accordingly.
The defendants jointly moved the court to vacate and set aside the verdict and to grant a new trial on the grounds, among others, of the insufficiency of the evidence to justify the verdict appearing to have been given under the influence of passion or prejudice, and that the verdict is excessive. The motion was denied. The defendants caused to be settled a bill of exceptions and jointly appealed to this court from the judgment.
Eleven specifications of error, some of which are joint and[1-3] others several, are presented. Counsel for respondent object to the consideration of any assignment of error which is not common and material to both defendants, on the ground that the defendants moved jointly for a new trial and appealed jointly to this court, and in this court have filed a joint brief and have argued the cause jointly. They say only an assignment of error which is common to both defendants can be held good as to either. There is authority for this position, but it does not find favor with us. We shall not take the time to discuss the consequences of the action of the trial court in overruling the motion for a new trial, except to refer to Montana cases touching the question.
Mr. Chief Justice Brantly, in Capital Lumber Co. v. Barth,
Other conditions may easily be brought to mind where the court might in its discretion grant the motion as to one movant and deny it as to another, which this court recognized in Anderson
v. Northern Pacific Ry. Co. et al.,
The Anderson Case seems to have been overlooked in Parnell
v. Davenport,
In Cummings v. Reins Copper Co.,
"A motion for a judgment of nonsuit, or a motion for a directed verdict, is in effect a demurrer to the evidence and presents to the trial court a question of law to be determined (Neininger v. Cowan, 101 Fed. 787, 42 C.C.A. 20; Cravens v.Dewey,
If a motion for a new trial has not been made, the court will review the evidence to determine whether there is any substantial evidence to justify the verdict. (Watts v. Billings BenchWater Assn.,
In this case the defendants severally moved for a nonsuit. They severally moved for a directed verdict. The verdict rendered against them was a joint verdict, and the judgment rendered against them was joint as well as several. They appeared in this court upon a joint notice of appeal. Some of the specifications of error are by one appellant and some are by the other, and some are joint.
We shall not adhere to the technical rule stated in Parnell
v. Davenport, supra. (Compare McDermott v. Ralich,
While the company's motion for nonsuit should have been sustained so far as that appellant is concerned, on this appeal we need only consider its specification which is to the effect that the court erred in denying its motion for a directed verdict. This necessitates a brief statement of the evidence.
From some time in 1926 until the date of the accident the[4-6] defendant Thompson was a traveling salesman for the defendant company, which had business houses in a number of important cities, but did not have any fixed place of business in this state. Thompson was assigned the northern part of Wyoming and the southern part of Montana as his "territory." He solicited orders for the purchase of merchandise sold by the company upon prices charged and terms which it fixed. He had not the right to alter prices or to fix terms of sale or to extend credit. Upon acceptance of the orders the company sent the merchandise to the purchaser direct and itself collected the price therefor.
Thompson owned and operated an automobile at his own expense. The company did not have any control over it. The company did not pay any of his expenses. Thompson's compensation was based wholly upon commissions computed on the orders he solicited and which the company honored; nor were any commissions advanced to him. He was expected to cover the territory and sell a certain amount of merchandise during the year, but he was not given any directions as to his course. He pursued his own itinerary and canvassed his territory as he pleased. He did not maintain any headquarters, but it was his custom to stop at his favorite hotel in each city. Thus, while in Billings, he registered at the Northern Hotel; in Bozeman, at the Baltimore; and in Butte, at the Thornton. If requested by the company to go to any certain point, he would follow their suggestion at his early convenience, but he followed his own pleasure in his solicitation *57 of orders. On some occasions he interviewed customers in the evening when it was impractical to see them during the day. He would talk to a customer at any time he would meet him conveniently to advance the business of himself and the company. Social occasions were not barred; if a customer wanted to talk business, Thompson was pleased to talk with him. It was not his habit to work on Sunday, but occasionally he drove from one town to another on that day.
The company manufactured and sold overalls and overall specialties, requiring Thompson to purchase outright a considerable number of samples which he carried in cases in his sedan-style automobile. These were carried upon the back seat and were seldom disturbed. He had the privilege of obtaining a refund for the samples if he chose to return them, or he had the option of selling them to others. He also carried in the back of the car advertising material, evidently furnished by the company, consisting of cardboards and posters, designed to stimulate sales. He registered at the Northern Hotel in the latter part of August, 1929, but went to Bozeman in the morning of August 26. Ordinarily he finished his business in Bozeman in one day, but on that night he was not feeling well; he felt "rather weak and bilious." The doctor called it liver trouble. Thompson spent six days in Bozeman, being in his room most of the time, visiting the doctor four times during that period.
In Butte there lived a Miss Reed to whom he was engaged to be married. On Sunday morning, September 1, she telephoned to him, as a result of which he went to Butte, leaving Bozeman about 5 o'clock in the afternoon, and reaching Butte about 9 o'clock that evening. He felt pretty well during the drive. After meeting Miss Reed, the two took a Mr. Demars to the Northern Pacific depot in Thompson's car, and then, at Miss Reed's suggestion, they went to the Rocky Mountain Cafe in Meaderville, where they danced and had some chicken sandwiches. Meeting another couple, the party remained at the Rocky Mountain Cafe until about 1 o'clock in the morning, when Thompson and Miss Reed started to return to *58 Butte, both in the front seat of the car. At the time of the accident they were less than half a mile from Meaderville on the road to Butte, following a long curve. There is no showing that anyone else was traveling upon the portion of the road when the accident occurred; there were no witnesses to the accident. According to Thompson's testimony he was driving on the right side of the road at about forty miles an hour, which was the speed he drove usually upon a good road. About 200 feet from the point of impact he felt a severe pain in his head and became unconscious; he regained consciousness either very close to the guard-rail on the left side of the road or after the car hit it; he did not remember which. It is apparent that the car did not hit the guard-rail squarely, for from the force of the impact the top rail came through the radiator and into and through the body of the car, injuring Miss Reed so severely that she died about eight hours thereafter. Thompson's leg was broken; he lost the leg.
George McKenzie, a deputy sheriff, testified that on the early morning of September 2 he was informed of an automobile wreck on the Butte-Meaderville highway. He arrived at the scene of the accident some time after it occurred. Miss Reed had been taken away in an ambulance. Thompson was sitting behind the wheel with his foot hanging over the rail that had penetrated the car; "his leg was broken off and his foot was hanging down by a little thread, and the bone was sticking out or protruding past the end of the flesh." Thompson, said McKenzie, was not in very good condition to tell what really happened, but being asked by Mr. Bertoglio, who was with McKenzie, whether someone had run him off the road, Thompson said he did not know what happened. "Mr. Thompson's condition was not very good, that is the reason I did not ask him much in the way of questions," said McKenzie.
On cross-examination Thompson was asked if he did not have a conversation with Mr. Emigh, one of the attorneys for the plaintiff, on the 12th of December, 1932, in the presence of James and Thomas Reed, to which he replied that he did. *59 Then asked if he did not recall stating on that occasion that at the time of the accident he saw the guard-rail and thought he could miss it or hit it with one wheel, to which he answered that he did not clearly recall it. In answer to the question, "Do you recall vaguely of saying something to that effect?" he said, "There might have been something said of that sort." On the trial he said he had never lost consciousness in that manner before nor since. He testified that he did not go to Meaderville "for the purpose of any business at all." It is clear that his purpose was for the pleasure of his fiancee and himself. There is not the slightest evidence to the contrary. It is clear that when he left the cafe his immediate purpose was to return Miss Reed to her home.
Admitting that Thompson was the company's agent, the company cannot be held responsible for the accident. Sections 7965 and 7966, Revised Codes 1921, read as follows:
"7965. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his wilful omission to fulfill the obligations of the principal.
"7966. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service."
These sections are but declaratory of the common law. When the application of respondeat superior is presented, "the decisive question in every instance is whether the agent or employee was, at the time of negligent injury, acting within the scope of his employment. If he acted independently of his employer, or was upon missions or purposes of his own, then the employer is not to be held accountable in damages." (Hoffman v. Roehl,
Thompson in inviting Miss Reed to accompany him upon the pleasure trip was not acting within the scope of his employment, nor in the furtherance of his principal's business. On the contrary, he was upon an independent mission of his own, using his personal car, over which his principal had no control.
Again, it is the rule, applicable here, that a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal's business, unless the act was done in the manner directed or authorized by the principal, or the result was one intended or authorized by the principal. (Restatement of the Law of Agency, sec. 250.) Clearly, the relation of master and servant did not exist between the company and Thompson. Those rendering service but retaining control over the manner of doing it are not servants. An agent who is not subject to control as to the manner in which he performs the acts which constitute the execution of his agency is in effect an independent contractor. (Id., sec. 220.)
"A principal employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction. In their movements and their control of physical forces they are in the relation of independent contractors to the principal. It is only when to the relation of principal and agent there is added that right to control physical details as to matter of performance which is characteristic of the relation of master and servant that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor." (Id., sec. 250.)
We recognized the foregoing principles in Shope v. City ofBillings,
Beyond question, the company was not liable for the acts of Thompson, who, free from the control of his employer, was on a pleasure trip with his sweetheart when disaster overtook them. The company's motion for a directed verdict should have been sustained.
From the multitude of authorities which might be cited sustaining this conclusion, we cite only Monaghan v. StandardMotor Co.,
When defendants did not stand upon their motions but proceeded[6a] with their defense, they took the risk of supplying the defects in plaintiff's testimony. The company did not supply any defect; on the contrary, the evidence fortified its claim of nonliability. As to the defendant Thompson:
Section 1742, Revised Codes 1921, provides: "Every person[7] operating or driving a vehicle of any character on a public highway of this state shall drive the same in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account amount and character of traffic, condition of brakes, weight of vehicle, grade." "Traffic must everywhere and at all times keep to the right. Vehicles moving in opposite directions must pass each other by turning to the right." (Sec. 1743, Id., as amended by Laws 1927, Chap. 80, sec. 1.)
Thompson was not necessarily negligent by driving on the left side of the road. If the road was open and free from traffic, the entire road was free for his use. (Pratt v. Kistler,
Thompson was in control of the automobile and presumably in the possession of his faculties. In the absence of any showing that the automobile, without his knowledge, was defective, and the defect caused the accident, the fact that he drove into the fence or guard-rail, on the left side of the road, justified the jury, in the absence of an explanation on his part, in drawing an inference that he was not exercising ordinary care, but on the contrary was negligent.
"Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done." (Kakos v. Byram,
An inference is a deduction which the reason of the jury makes from the facts without an express direction of the law to that effect. (Sec. 10601, Rev. Codes 1921.) It "must be founded:
"1. On a fact legally proved; and,
"2. On such a deduction from that fact as is warranted by a consideration of the usual propensities * * * of men." (Sec. 10603, Id.; Jenkins v. Northern Pacific Ry. Co.,
The usual propensities of men in the possession of their mental and physical faculties would be to avoid running into the fence in the circumstances shown here. (See County of Alameda
v. Tieslau,
The court, therefore, was correct in overruling Thompson's motion for a nonsuit. "A case should never be withdrawn from the jury unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, including the legitimate inferences to be drawn from it." (Morelli v. Twohy Bros. Co.,
Thompson sought to explain the cause of the accident, as we[11] have shown. If the accident occurred by reason of Thompson's unconsciousness, as he testified, he had a perfect defense. (Huddy's Automobile Law, vols. 3, 4, 75; Cohen v.Petty,
Upon the theory that the situation presented by the evidence[12] was sufficient to take the case to the jury, we cannot see our way clear to affirm the judgment against him, in view of the fact that the verdict against the company cannot stand. Thompson has not had the privilege of submitting his case to the jury alone. To say the most, the case against him hangs by a thread. To say the least, it is uncertain *64
whether the jury would have returned so large a verdict against him if he had not been yoked with the company. (Courtney v.American Express Co.,
The unfortunate young woman left no dependents, so far as the record discloses. She was affianced to the defendant Thompson. Can it be doubted reasonably that the presence of the company, apparently a large corporation, as a co-defendant influenced the jury in returning a verdict of $18,000 against the defendants jointly?
The United States Supreme Court, in Washington Gaslight Co.
v. Lansden,
Manifestly it makes no difference whether the damages are punitive or compensatory if the damages are largely in the sole discretion of the jury. (See Courtney v. American ExpressCo., supra; Bradley v. Blandin,
The assignment of error that the damages awarded are[13, 14] excessive, appearing to have been given under the influence of passion and prejudice, must be sustained. As has been noted, Miss Reed, so far as the record shows, did not have any dependents; there is no evidence that she contributed to the support of any of her relatives or that there was any necessity for her doing so. She survived eight or nine hours after the accident, either in an unconscious or semi-conscious state. Toward the end she was conscious of great pain, but that alone does not warrant a verdict of such size. It is not the policy of the law that the tragedy resulting in her death should endow her heirs. (Cornell v. Great Northern Ry. Co.,
The case against the company should not have been submitted to the jury; that it was, prejudiced the rights of Thompson. It is reasonable to suppose, and unreasonable to suppose the contrary, that the procedure followed by the court contributed to the excessiveness of the verdict against Thompson. He has not had a fair trial, the circumstances considered. It would be a travesty upon justice and common fair dealing, upon the state of this record, to affirm the judgment against him. Technical objections shall not prevent him an opportunity to have a trial upon the merits.
The judgment is reversed and the cause is remanded to the district court of Silver Bow county, with directions to dismiss the action as to the defendant H.D. Lee Mercantile Company, and to grant the defendant Thompson a new trial.
ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.
Dissenting Opinion
I agree with what is said in the majority opinion with respect to the subject of the liability of defendant company. I also agree with what is said therein to the effect that whether defendant Thompson is liable is a question for the jury. I *66 do not agree with the conclusion that the case should be remanded for a new trial as to defendant Thompson. As to him I think the judgment should be affirmed.
I concede that at common law the rule was that where a verdict had been rendered against two joint tort-feasors it would not be set aside as against one and permitted to stand as to the other. (20 R.C.L. 224.) The rule is condemned in Ruling Case Law in the following language: "This objection is highly technical and artificial, and the prevailing rule at present is that, inasmuch as tort feasors are jointly and severally liable and an action may be maintained against one or all at the option of the injured party, a verdict may be set aside as to one and allowed to stand as to another." (20 R.C.L. 224, and cases there cited. See, also,Bailey v. C. Lewis Lavine, Inc.,
The case of Bradley v. Blandin,
My associates, evidently realizing this, hold that the award is excessive and appears to have been given under the influence of passion and prejudice. If that be so, then there is justification for the granting of a new trial, and what is said in the majority opinion about the prejudice to Thompson because of submitting the case to the jury as to the company is obiterdictum. At most it is but the speculation on the part of the court as to the cause of the prejudice and passion, a matter which does not concern us. If the award is so excessive as to warrant us in saying that it resulted from passion and prejudice, a new trial is proper and it becomes wholly immaterial as to what served as the motivating circumstances in producing the passion and prejudice.
Is the verdict excessive and was it rendered under passion and prejudice? The action was brought by the administratrix on the cause of action that Miss Reed had, and which upon her death survived to this plaintiff. (Melzner v. Northern Pacific Ry.Co.,
Mrs. Walter Edstrom, a sister of Miss Reed, was in the room at the hospital before her sister died, and testified: "While I was in there she was in great pain, and the nurse informed me not to talk to her, it was against the hospital rules, and all she seemed to do was to complain of the pain in her leg."
Miss Reed was earning $175 per month, was 25 years of age, and in good health. She had a life expectancy of 38.81 years. The record shows that an annuity returning to her the sum of $175 per month would cost $42,924. In the complaint plaintiff asked for $40,000. The jury found for less than one-half the sum demanded, and in my opinion the award is amply sustained by the evidence.
We have heretofore sustained a verdict in the sum of $15,000, and I think properly, for the death of an 8 year old boy with no earning capacity. (Autio v. Miller,
"In the very nature of things there can be no fixed measure of compensation; nor may the award in any given case be accepted as a conclusive standard in any other case, because, it being the province of the jury to determine what the amount shall be, the sums awarded in different cases vary as widely as do the individual views, capacities, and dispositions of the men who constitute juries, chosen, as they are, by lot from the body at large of the citizens of the community. So long as we have a system which confides to juries the duty to determine the issues involved in this character of cases and to fix the amount of compensation to be paid, unless the result of their deliberation is such as to shock the conscience and understanding, it must be accepted as conclusive." (Autio v. Miller, supra.)
I think it cannot be said the verdict of $18,000, under the circumstances here, shocks the conscience. I think, also, that if it be held to be so excessive as to necessitate a new trial rather than a reduction of the verdict, the court should indicate by dollars and cents the amount by which it is excessive, so that plaintiff may amend the complaint accordingly and thus insure avoidance of repetition of the error on another trial. In my opinion, however, the verdict is not excessive, and I think the judgment should be affirmed as against defendant Thompson.
Rehearing denied June 20, 1934. *70