*1 ruling clearly right. The trial court’s was There is no evidence regarded parties open the claims as accounts or intended adjustment. a payable monthly to have future salaries The were and right a employee of action accrued to the at end of each month. may general
“It stated as a proposition be sound that a cause of right action an accrues moment the to commence action comes existence, into and the statute of from limitations commences to run Jur., that time.’’ 34 Am. page sec. 113. (Mo.
The facts considered in McClellan v. St. Louis App.), (2d) 131, S. W. differ from in an those the instant ease. There salary city ordinance $200.00 fixed the officer at month per provided also residence, lighting, heating laundry. for his There controversy monthly was salary no which in paid full. The suit expended recover the amount the officer lighting, heating laundry. in Those items varied amount from month, month, required adjustment the officer and the between city and, held, as the of appeals correctly court did not become due until Also properly demand. court claim held that drew interest from demand. allowing Plaintiff Stottle an court erred claims against assignor,
offset the claim Briefly, Jenkins. O’Fallon city evidence payment is that the shows a of $365.00 record to Jenkins receiving. says which he denies Plaintiff city Stottle failed to satisfy its proving citing opinion burden of our payment, Warren Curry, v. Mo. 363, (2d) equity 177 S. W. 472. That was an case in which finding case; we made our own facts. a law This compelled there was some payment, evidence of the court was not to believe finding Jenkins’ denial we are bound court’s city fact. We have all considered the cases cited defendant regard and have we discussed Missouri cases which as relevant. Cases cited other ruled under constitutional or states were statutory provisions differing from ours. ably
These cases were tried well in the circuit briefed court argued judgments here. We find no affirmed error and the are both cases. All concur. Guardian, Ap L. Van His Jones, Skyke,
James Monroe Alta Pennsylvania pellant, Corporation. v. Company, Railroad (2d) No. 38998 182 S. 157. W. One, July 3,
Division 1944.
Rehearing September 5, Denied, 1944. *2 Douglas of counsel. appellant; P. Noell for Jones Charles H. *4 Hartman, & E. Fordyce, White, Mayne, G. Hartman Williams respondent. F. W. Schwarz *6 injuries under personal for OSDOL, C. Action YAN seq., et A., C. sec. Act, Title U. Liability Employers’
Federal A., sec. C. U. S. Title Safety Appliance Act, and the Federal ver- unanimous $203,167 awarded seq. et Plaintiff ap- Plaintiff has a new trial. granted court jury. The trial dict of pealed. grounds specified upon the was sustained for new trial The motion follows, as on prejudice passion the result is the verdict “12. Because jury. part to indicate grossly excessive is so the verdict “14. Because on defendant against prejudice passion it was result on part sympathy jury and result jury. part grossly to indicate
“15. Because the verdict so excessive as jury part passion prejudice it on was the result *7 against for partiality part of and on their the defendant and favor plaintiff. jury
“24. at not in accord- Because the verdict of the was arrived the ance with the instructions of and in the Court accordance with jury trials, for on the providing but, laws of the State of Missouri contrary, ignored the the Court the laws jury the instructions of and brought improper of of and a the State Missouri in verdict which is illegal.” (A by judge memorandum, and filed the trial in connection with the the con- granting trial, order the states that verdict is new jury trary cautioned the to 5 and 6. These instructions Instructions citizens; hear private and to to the if consider case as between two feel- bias, prejudice the or evidence and at verdict a arrive a without ing against of party.) in favor or either judge plaintiff had been (a presiding) a former
At trial different jury. $175,000 of by awarded the 'sum of the unanimous verdict a trial, a the granted The trial court the and new set aside verdict $50,000. plaintiff having Specified to a remittitur of refused file grounds upon granted which first trial were as follows: the new
“11. Because the is verdict excessive. that grossly
“14. to indicate Because the verdict is so excessive as on prejudice against it the passion the result of defendant on plaintiff the the of for part jury sympathy of and the the result part jury. the of the indicate grossly
“15. Because excessive as to is so the verdict passion on the prejudice part that it of the of was the result against part their jury partiality the of favor and on defendant and ’’ for plaintiff. he, contends, (1) plaintiff a under (appellant) Plaintiff herein by granting the Employers’ Act, of the second Liability Federal the jury trial, right has his new denied the of trial of case a been law, process deprived and so.has been due of property of his without equal protection speedy a denied of the laws and denied certain and remedy in the (7th the 14th to Constitution courts Amendments 10, 30, II, of United 28 and Con- States, the and Sections Article A. 1939, R. Missouri); (2) stitution R. Mo. S. that Section second new trial prohibits granting trial court a sec. against ground to same that the is party upon verdict granting in second weight of the trial action evidence—the court’s statute, ground is prohibited on new trial to defendant trial order must be reversed and the verdict reinstated —the ground that the granted upon trials verdicts were court both new argued against weight it because the evidence, plaintiff, is necessarily weighed trial must have court the evidence in order excessive; (3) reach the conclusions that the successive verdicts were plaintiff further the verdict contends that was not excessive. (1) may (2) It be conceded that the in an'ac ’ him Employers Liability tion under Federal Act who has availed discriminatory may subjected self our state courts in nowise be adjudication cause; action and that the amount an his injuries jury largely award of a personal within the discretion jury exercised an amount the assessment of within award compensation correctly fair and reasonable limits defined by the instructions of the court. discretion, may,
In exercising this state a trial court sound except only allow one trial party, new to either where the triers of law, jury or shall fact shall have a matter when the erred guilty 1169, supra. be of misbehavior. Section upper
However, power keep courts have the awards within compensation; and lower limits of fair and reasonable and their ac *8 in an award had correcting by tion verdicts the reduction of excessive the England prior adoption ‘been to the upheld by the courts of of (and Missouri) Constitution of the of and amendments United States Mann, & 130 U. S. thereto. Arkansas Val. Land Cattle v.Co. 102; 458; 9 3 Mason also Dimick 69, Little, S. Blunt v. See v. Ct. Schiedt, 474, power 293 296. The exercise of this is U. S. 55 S. Ct. as of the trial court inasmuch peculiarly within the sound discretion may weigh that court as to the nature and extent of a the evidence injury proceedings; ap the plaintiff’s and see the effect of the trial pellate court is reluctant to the trial in disturb court’s action such arbitrarily. appears trial court exercise, unless it that the has acted reduce Nevertheless, appellate power courts have the to and do ex is of the award cessive verdicts. Mere excessiveness of the amount remittitur, trial and in rather court, court, in the this corrected causing Kurn, delay expense. a Goslin 351 than retrial and v. Mo. 395, 79; Co., Mo. 173 W. 2d Mobile & R. S. Weaver v. O. Co., 223, 1105; Louis-San Francisco R. S. W. 2d Cole v. St. 999, 344; (Mo. App.), Kasperski Rainey
Mo. 61 S. W. 2d v. 135 W. jury which the permitted (by 2d 11. But a verdict of the is to stand reasonably excessive) appellate court) compensatory, (if trial or or as jury’s of remittitur, presupposes a verdict resultant the corrected impartial unbiased, of the evidence. dispassionate and consideration the of trial order sus considering Without effect the court’s (upon the to taining plaintiff’s the motion for a new trial refusal remittitur) in former trial of the case at bar, plainly file a the it is trial, trial, seen the in the new upon granting that second the trial grossly that so excessive as that court the verdict was to indicate held jury. of passion prejudice the the cited it was result Cases power by that trial court by plaintiff which hold a is denied the upon ground trials the 1169, supra, grant new Section to successive helpful against weight of evidence are not the is the the verdict to here. us ground, “because specified is the
There a vital distinction between ground, the “because (or inadequate)” the is verdict excessive to (or inadequate) as indicate grossly excessive the verdict is so hereto- The distinction is prejudice.” it the result of bias and was Douglas, fore in the case Sofian v. particularly noticed this court “may pass on the page 23 S. trial courts 324 Mo. W. 2d at ;. considering . size of a verdict . weight of in the evidence reviewing weigh evidence appellate do not whereas courts ; to case, opportunity . measure law . . view of their better general jury, they (trial trial on the proceedings effect courts) the verdict prejudice and bias size may infer which, appellate alone, held, is courts cannot thing as we have seen inadequate as indicate ruling In in this case so do. verdict necessarily bias, concluded the verdict prejudice trial court substantially ought to have the evi- than been under less it against so words, it the verdict was much the- dence—in other held weight prejudice. neither bias and On evidence as show interfering grounds justified in under this court be these would (our italics) record” of that case. grounds specified the trial court
In each of the considering evidence, yet weighed the reasons for sus may have be said dif taining respective grounds are upon essentially the motions excessive,” is specified ground, “because the verdict ferent. The jury mistake in the indicatory of no more than an honest an weighing pertaining to the nature extent of evidence therefor, compensation specified injury assessing whereas ground, grossly excessive as to indicate “because the verdict is so *9 prejudice,” savors of misbehavior the of bias it was result and impartial of the part jury. A and consideration on the of the fair King incipient validity. by jury to a evidence the is vital verdict’s 100; Transit Mann, Louis 318, Mo. 286 S. Chlanda v. St. v. 315 W. Finley Co., 249; (Mo. App.), Bente 213 Mo. 112 S. W. v. App. 155; Co., Rigby 2d Mo. W. v. St. Louis Transit S. Ry. Co. v. & Ste. Marie 110; Minneapolis, St. Paul Sault S. W. Brabham, Sheriff, 501; v. State of Moquin, 520, 51 S. 283 U. Ct. 210. the al., 96 F. 2d Should Mississippi, for the Use of Smith et assessing the by prejudice jury have actuated bias and been finding actuated in their may they of have award, the so been amount liability. upon issue of the of the evidence the
(3) We turn to a review of nature plaintiff’s injuries. of extent eighteen years age injured, Plaintiff, 16, 1942, March was of when b,een good employed physical condition. He a brake-
and in had by January 14th. the preceding During man defendant since the employed defendant, time plaintiff paid the the sum of was eight Nevertheless, $7.82 for hours. He was on the “extra board.” days he had the worked overtime week for and seven sufficient of pay aggregated time that Prior his per employ- $250 month. to his ment defendant, plaintiff had employed by been a filling station operator, pay received the of week. per $20 Plaintiff injuries suffered his being as a result of thrown the platform brake of operated a ear in a train defendant. cars The of the train rolled dragging over him him several hundred feet. The passed right leg, wheels over amputating his it at the the lower end of upper femur; third right'thumb entirely his was severed. Both hip joints were dislocated. There was a comminuted fracture about the neck and head right femur and the (acetabulum) socket into which the head of the femur is rest now partially should absorbed destroyed. multiple There were upper fractures about the end the of femur, left the of which head has been taken by surgery; out the joint socket for partially the X-ray destroyed. An the lower of end of the left femur of atrophy, space shows evidence and the about joint the knee is The is reduced. left femur infected the at site of the fracture and “osteomyelitis” a diseased condition known as is present openings, sinuses, through with or at the of hip surface the foul-smelling pus which discharging. both upper is The ends of are upward femurs growth (ankylosis) thrust and fixed the pelvic bones. On the head of the left there humerus evidence is injury to the attachment the com- tendons thereto. There was a minuted involving fracture the lower left humerus and end upper (at elbow). ulna end two bones have united These (ankylosed) right angle; joint practically and have fixed the at a joints fingers cannot left hand at extend the his metacarpals phalanges. The trunk of called nerves plexus” injured “brachial has left been and the nerve force shoulder, inhibited, causing atrophy, consequently arm and is an hand or wasting, the hand. of those members and a elawlike contraction of right Slight compression There was no fractures injury arm. spines. occurred to the sixth and eleventh thoracic Plaintiff sus- large deep tained in the flesh of back which left sensitive wounds his amputated surgically; stated, right leg scars. As was not grown thigh part of the scar which bone of the has' into and become a very is lesions over discolored, pressure on and has ulcerated painful plain- wrist, where its on left surface. Likewise the sear hand pressure. on There severed, tiff’s is tender sensitive thumb *10 force causing nerve damage nerve, to lack of great was the a sciatic and atrophy of muscles thigh, leg foot, consequent in left the and with bones; “dropped” is clawlike. and demineralization the the foot is body to plaintiff’s hips and knee canse plaintiff’s at ankylosis The opinion physician, of a and it position, in stiff was the be anchored a twenty-four an attendant plaintiff that needs plaintiff, witness for (except over to turn day, being impossible plaintiff it for hours of the lower toilet, or to bathe bed, private his left) to care for to upper himself, his face body. bathe and He is shave of his able to part plaintiff’s body. opinion that Witnesses, physicians, were permanent. disability total and pre- plaintiff treating was to problem physicians
The first Hospital serve He was in the of Indian- his life. treated Methodist by and apolis, Indiana, by.a employed defendant, physician, regularly by. physician by physician called into consultation defendant’s a. plaintiff’s hospital year weeks, a He remained in that and two mother. oxygen having spent the first a half in an tent—Jiis two and months complicated by During the time he pneiimonia.. was was case ad- hospital glucose, sedatives, stimulating drugs medicines were ministered, given. and 57 blood Plaintiff taken transfusions were was An- Hospital by mother, his placed the Methodist in St. thony’s Hospital at where .for period St. Louis he was treated Expense ten weeks. of plaintiff’s at the Methodist treatment while Hospital by Hospital borne defendant; expense Anthony’s at St. Anthony’s $500. his has discharge Hospital Since from St. he resided at home parents of his he Indianapolis, where has been cared or family, for paid members of the a nurse $5.50 $6.00 eight for day. hours of the able injuries
Plaintiff was his survive and the them treatment of because of lungs his sound heart, digestive tract. so heart, His far physicians as can determine, is fact, together normal. This with the fact pus that the osteomyelitis is not absorbed being system, his according physician, to a plaintiff, for witness makes his life expectancy quite great injury as as if he had not sustained his —not all witnesses, agreement physicians, this, were in with however. Plaintiff, according to the evidence, has im- suffered no pairment of his mental digestive faculties; heart, lungs or Of tract. his condition plaintiff (at trial) testified that his health is the time of good, “with the exception being crippled having all osteo- this ’’ a, myelitis. There is opinion difference of as to the extent immobile of plaintiff may be condition sur- corrected reconstructive gery. Witnesses for plaintiff, physicians, opinion were of the operations performed could be ankylosis plaintiff’s, relieve the at hips and at separated joint, knee joint at hips being by so surgery leave joint, “flail” permitting plaintiff his to bend body and so to sit uprightly. Physicians, witnesses for the defend- ant, were opinion plaintiff’s condition could be relieved by surgery to the extent that leg a reconstructed socket the left would weight enable to bear it, upon his movement permitting
175 diversity opinion with the aid of crutches. And is a upon there of question practicability right of an use artificial limb. surgery The only performed corrective could be that progressively, is, by operations performed several plaintiff’s at different times as physical expense condition may surgery, allow. The of hospitali- zation, X-ray necessary work and operations to such medicines plaintiff’s estimated a to from $10,100. $8700 witness be It to opinion is the plaintiff of physicians physical now in such a condition that surgery reconstructive be pro- could commenced. The posed operations operative procedures include such as the cure of osteomyelitis, right the removal of the remainder of the femur and dissecting resulting scar, out the removal of or dead diseased bone hip pelvis, the left the correction the left “foot-drop” of and of the scar on course, the left hand and wrist. Of operations these would not be unattended risk.
It is the contention of the that the plaintiff evidence tends to show that he required expend $10,000 will be yearly to through- sum his surgery, hospitalization, drugs out life for and attendants. "We probable necessity expense cannot infer the for such an. from the evidence introduced. The shows, however, evidence that the grave, has permanent injuries suffered painful most which have necessitated, and surgical will necessitate, and medical treatment. injuries His totally have performance disabled him from physi- tasks. cal His condition at the time of trial warrants the inference that he will attendant, continue need the service of an at uni ess least surgery and until he may may submits to further which or suc- not cessfully alleviate the infected and immobile condition his hips. injuries
Plaintiff’s very would entitle him to a substantial award. Money cannot physical effect the restoration of the well plaintiff’s being. exchange any None physical would a sound condition money. recovery sum of All courts hold the is measured compensation.” which is only pro “fair and reasonable Money can for a livelihood, vide and for care comforts his to ameliorate suffering. There is no mathematical formula which the amount compensation a permanent injury ease of serious and be can accurately compensation determined. Fair and reasonable each upon case the foundation must rest of the facts the case. Yet given some consideration be must to the amounts of award which have been compensation held to be fair and reasonable plaintiffs where injuries. uniformity have suffered similar There should be reasonable Kurn, verdicts. Goslin I. supra; amounts of v. Morris v. E. Co., 126, 984; DuPont Nemours & Mo. Aly de 139 v. S. W. 2d Louis, Terminal R. R. of St. Ass’n. 342 Mo. 363. 2d W. parties Counsel for do not our attention to call a case in which personal injuries $50,000 ap- an award for of more than has been proved by $50,000 this court. A verdict held be within compensation Span
the measure of in the case of Jack- reasonable v. Walker Coal & son, Mining W. 190. (1928), Co. 16 S. 2d Mo. determining We do maximum of not cite case as the minimum or compensation .bar, the measure of this in the case at and desire that just determining decision, court be of untrammeled .that which award, according particular to the facts of constitutes reasonable *12 regard in cause as viewed relation economic conditions with uniformity, injuries plain- the (a) to a reasonable We cannot say the comparable injuries plaintiff in tiff herein are to the the the Span plaintiff ease—-we have said that the condition of the in 2d Span hopeless. (Mo. Sup.), Kurn 148 S. W. case was West v. man page (b) Span Plaintiff in case was an older 752 at 757. herein, injured (e) he plaintiff when was Plaintiff in was than Span injury at time than earning ease was less was in the ease at bar. jurisdictions
Cases from other have been cited in amounts which ap equal Span to or in case have excess of award in the been permanent proved grave, painful injuries. as reasonable for $50,000, (1936), Co. Joaquin Lindemann v. San Cotton Oil 5 Cal. 870; & 480, $50,000, 2d 2d v. W. R. Co. Delaware, 55 P. McKeon L. McCarthy (1924), 258, 34; $50,000, 100 N. L. 127 A. Kirschbaum J. v. $; $50,000, (1936) , 5 2d 54 2d v. Sun-Maid 191, Cal. P. Carlson $50,000, (1932), App. 546; 121 9 P. 719, Ass’n. Cal. Growers’ 2d City Chicago (1935), App. 410; $55,000, 279 v. Ill. Fried Budek & (1918), App. New R. 183 York, New Haven Hartford R. Co. v. 917; 697, Taylor 130 v. 115, $58,800, affirmed N. E. 170 N. Y. S. Div. Ry. 457, 11 Atchison, (1937), App. & 292 Ill. E. T. S. F. Co. N. Freight v. Lines Ill. $60,000, Goldberg Capital (1942), 314 610; 2d & 302; Gourley Chicago I. E. $60,000, 41 N. 2d v. 347, E. App. 160, $60,000, 14 App. 842; 295 N. E. 2d Ill. Ward (1938), Ry. Co. 300; (1931), App. N. Y. 127, 233 Div. 251 Iroquois Corp. Gas S. v. Royal (1941), 175, Transit, Inc. 300 Wis. Zamecnik v. $62,500, & Corp. 277; $72,500, Grinnell v. Carbide Carbon Chemicals W.N. C. & O. 535; Toledo, N. R. $75,000, 276 W. , 509, Mich. R. (1937) 282 617; (1923), $75,000, 108 Ohio St. 140 N. E. Miller Co. v. Greyhound 298; (1931), App. Lines 262 Ill. Pickwick Princell v. County (1934), Co. v. Farmers’ Mont. Fulton Chouteau $76,112, 1025; $100,000, Westinghouse X-ray v. P. O’Connell $100,000, Co. 48, 37 2d 54; McDonald v. Y. 2d Gas N. (1939), 16 Standard 777. App. 2d P. 2d Observe (1935), 8 Cal. that Engine Co. jury so as half that for much awarded award none $203,167 the verdict must be bar. feel that We viewed case at in the many thousands of dollars. extent of As we have to the as excessive having opportunity to observe the had effect court, stated, a trial n prejudice from the may infer bias size of proceedings, trial justified, are not alone; we believe we under verdict ruling holding in so bar, inferring record the case at arbitrary. trial court trial be affirmed. granting order The new should Dalton, GG., concur. Bradley It is so ordered. C., opinion foregoing
PER CURIAM: —The Osdol, Van judges All the concur. adopted opinion of the court.' Sparks 38939. 182 Appellant. David R. Auslander, v. Sol No. (2d) 167. S. W. July One, 3, 1944.
Division Denied, September Rehearing 5, 1944/ *13 Nangle, George Gantner and William Leahy, John 8. J. John appellant. O’Herin