| Ky. Ct. App. | Jan 29, 1909
Lead Opinion
Opinion op'the Court by
Affirming.
There have been four trials of this case. On the .first, trial the damages in favor of appellee were assessed at $10,000. This court, in an opinion that may be found in 122 Ky. 256" court="Ky. Ct. App." date_filed="1906-01-15" href="https://app.midpage.ai/document/louisville--nashville-r-r-v-daniel-7136082?utm_source=webapp" opinion_id="7136082">122 Ky. 256, 91 S. W. 691, 3 L. R. A. (N. S.) 1190, reversed the judgment awarding this sum for errors of law occurring during the trial, and also “because the verdict was palpably against the weight of the evidence,” but held that .there was sufficient evidence to take the case to the jury. On the second trial the jury returned a verdict for $6,000. On an appeal from the judgment rendered upon that verdict, this court, in an opinion that may be found in 104 S. W. 344, 31 Ky. Law Rep. 944, reversed the judgment of the lower court upon the ground that the verdict was manifestly against the evidence. In fact, that was the only reason assigned for a reversal. Afterwards there, was another trial,
Counsel for appellant insist that errors of law were committed by the trial court, but we fail to discover any that would authorize a reversal. The case seems to have been practiced entirely within the lines laid down in the former opinions of this court. It is, however, earnestly contended that, as the verdict is palpably against the weight of the evidence, the judgment should be reversed fori this reason alone. The evidence on all of the trials was substantially the same, and as the last verdict, as well as the others, was flagrantly against the evidence — that is to say, upon the evidence a verdict should have been rendered for the other party — we would for this reason remand the case for a new trial, if we did not feel obliged by the provisions of the Code that will presently be noticed to affirm the judgment.
Section 341 of the Civil Code of Practice reads: “A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence. ’ ’ The first, part of this, section was contained in the old Code of' Practice, but the words “nor shall more than two^ new trials be granted to a party upon the ground that the verdict is not sustained by the evidence” were added to the section by the present Code, which took effect in January, 1877; and in 1879, two years after the provision in question, was inserted in the Code, this court, in the case of L. & N. R. R. Co. v. Graves,
The construction then given to the provision in question has been followed by this court in L. & N. R. R. Co. v. Shumaker, 67 S. W. 829, 23 Ky. Law Rep. 2458; Board of Internal Improvements v. Moore, 74 S. W. 683, 25 Ky. Law Rep. 15; C., N. O. & T. P. Ry. Co. v. Halcomb, 105 S. W. 968, 32 Ky. Law. Rep. 381; Southern Ry. in Ky. v. Goddard, 108 S. W. 890, 32 Ky. Law Rep. 1397. So that it may now be considered as the settled practice that, when there have been three verdicts upon substantially the same evidence for the same party, the third verdict will not be disturbed upon the sole ground that it is not supported by, or is clearly against, the weight of the evidence. And this rule will obtain, although either one or both of the two first verdicts were set aside for errors of law appearing in the record. But there must be three verdicts. If there have been three trials, but the jury in one of them has failed to agree, the trial in which there was not a verdict will not be considered as one of the verdicts within the meaning of the code provision, although in Supreme Lodge of Knights of Honor v. Lapp, 74 S. W. 656, 25 Ky. Law Rep. 74, the court inadvertently said': “The rule in this State is that where there have been three verdicts for the same party, or two verdicts and a hung jury, the court will not disturb the verdict of the third jury on the ground that the verdict is not-sustained by the evidence.” This code provision however, and the construction given to it, does not limit the right of this court to
It is further said that the verdict is excessive, and for this reason a new trial should! be granted. We cannot agree with- counsel in this contention. ' True it is that the verdict is contrary to the decided preponder enoe of the evidence; but it does not at all follow from this that it is excessive. Under the evidence there should have been a verdict for the railroad company; but, notwithstanding this, the jury, when they decided to find for the plaintiff, Daniel, were justified in assessing the damages at the amount they did. The injury appellee sustained not only caused him to suffer great pain, but resulted in the loss of his right arm near the shoulder and permanent injury to other parts of his body.
Complaint is also made of errors in the admission of evidence in respect to plaintiff’s habits of sobriety and industry. Upon this point, and to illustrate it, a witness was asked: “Q. Are you acquainted with fh’e plaintiff, Lewis Daniel? A. Yes, sir. Q. How long have you known him? A. I have known him all my life. Q. Are you acquainted with the general reputation of Lewis Daniel as to sobriety and industry in the community in which he lives ? A. Cer
The judgment is affirmed.
Dissenting Opinion
(dissenting).
The opinion in tMs case, as is- conceded, upholds the judgment of the lower court, not because it is
The opinion in the Graves Case is bottomed upon two propositions: First, the former rule of practice of this court, as announced in the Doughierty and other cases; and, second, section 341 of the Civil Code of Practice as construed in that opinion. If the opinion in the Graves Case, above referred to, is correct, the court has reached' a proper conclusion; but it is my contention that the right to a reversal and new trial in this case is regulated by statute, and not controlled by the Graves Case, or any other case which is not in accord and harmony with the plain provision of the statute. This statute was passed by the General Assembly in 1877, and is now section 341 of the Civil Code of Practice, and is as follows: “A new trial shall not be granted on account of the smallness of damages in an action for an
Two years after the passage of this act this court had under consideration the Graves Case, which was then here on the third appeal, and refused to reverse it on the ground that the verdict was against the evidence, although there had theretofore been no reversal upon this ground1; the two previous reversals having been for errors of law. The court in that opinion said: “It is true the reversals of this case have been upon questions of law1; but the fact still remains that there have been three findings in the same way upon the same evidence, and, while the case may not be within the letter, it is clearly within the spirit of the statute, and it is also within a rule laid down in the decisions of this court prior to the enactment of this statute.” The decisions referred to, as establishing in part the basis upon which the opinion rested, were those of Dorsey v. Dougherty, 1 A. K. Marsh. 183, and Bennett v. Runyon, 4 Dana, 422" court="Ky. Ct. App." date_filed="1836-10-10" href="https://app.midpage.ai/document/bennett-v-runyon-7380275?utm_source=webapp" opinion_id="7380275">4 Dana, 422.
Of the two verdicts referred to in the Dougherty Case, one had been set aside by the trial judge for the reason that one of the jurors who sat in the trial was discovered to be under 21 years of age. The verdict supporting the judgment from which the appeal was prosecuted is the one referred to in the opinion. Each verdict had been in favor of the plaintiff. It was the contention of counsel for appellant that a hearing with but 11 jurors was not a trial' within the contemplation of the statute, and that it should be disregarded; that appellant was entitled
• ' In 1836 the Dougherty Case was approved in the case of Bennett v. Runyon, 4 Dana, 422" court="Ky. Ct. App." date_filed="1836-10-10" href="https://app.midpage.ai/document/bennett-v-runyon-7380275?utm_source=webapp" opinion_id="7380275">4 Dana, 422, which was in many respects similar to it. There had been a verdict in favor of the plaintiff in an ejectment suit. This verdict was set aside by the trial judge, and upon a retrial the plaintiff again recovered a verdict. This the trial judge refused to set aside, and, upon appeal here, the judgment was affirmed on the authority of the Dougherty Case. A reversal was refused for the reason assigned in the Dougherty Case. In both of. these cases, which were referred to and.relied upon
While, to my mind, the court undoubtedly was in error in the Dougherty Case as to what constituted a trial within the meaning of the statute, nevertheless both of these opinions were rested upon the statute; and this being true, and the statute no longer being in force at the time when the opinion was written in the Graves Case, these opinions were not applicable, and should have exerted no controlling influence in determining that case. By the act of 1877, which is section 341 of the Civil Code of Practice, the Legislature sought to abridge, or at least, modify, the rule of practice which in the Graves Case is termed the “established rule of practice.” This must have been the purpose of the act, else the Legislature was doing a vain and useless thing. There was no earthly necessity for the passage of this law, if it was not intended to change the rule of practice upon appeals in that class of cases where the verdict is not supported by the evidence, and to provide a rule of procedure in such cases different from that which the court had theretofore followed; and yet, although this was the clearly expressed legislative purpose and intent, we find that the court in the Graves Case so construed it as to make it conform to the requirements of the rule of practice as it had theretofore existed, thus completely nullifying and destroying the purpose of the legislative act. The
As we have shown, the previous rule of practice, upon which the court in part rested its opinion, had no application whatever; for the opinions there referred to as establishing this rule were based upon a statute which had been repealed, and hence the opinion is left to rest upon the construction which the court gave to section 341 of the Civil Code of Practice. In place of accepting this statute as written and conforming the court’s opinion to the requirements of this statute, the court chose rather to place such a construction upon the statute as would make it conform to a line of decisions of this court written under an obsolete statute; and in this lies the fault of the Graves Case. In- order to make section 341 mean what the court in the Graves Case says it means, there must be read into it an entire sentence, to wit: “Or that the verdict is not sustained by the evidence coupled with other causes” — so that the court-made statute reads: “Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence, or that the verdict is not sustained by the evidence coupled with othes causes.” If the Legislature had
Such is th'e rule of interpretation in the federal court, and in the State courts of last resort, and especially in our court, where no • rule has been more clearly announced and firmly fixed. In the early case of Clay v. Hopkins, 10 Ky. 485" court="Ky. Ct. App." date_filed="1821-06-07" href="https://app.midpage.ai/document/clay-v-hopkins-7377803?utm_source=webapp" opinion_id="7377803">10 Ky. 485, decided in 1821, this court said: “It is certainly proper in some cases to resort to the reason of a law for the purpose of discovering the intent of the Legislature. This may be done where there is an ambiguity arising from the use of words of doubtful import, or from an apparent conflict between the different provisions of the law; but it cannot be done with propriety where there is no such ambiguity, and with respect to the acts in question it cannot be pretended that there exists any such ambiguity. The words used by the Legislature are clear and unequivocal in their import, and do not admit of .a different construction, and in such-case the Legislature must be taken to mean what they say, and nothing more or less; for where there is no ambiguity there can be no room for construction.” And again, in the case of Robertson v. Robertson,
The statute being plain and unambiguous in its terms, it was not open to construction. It needed no judicial intepretation. It stated in plain language, that could not be mistaken, and that was not susceptible of any dual meaning: “Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence. ’ ’ II will be observed that the Legislature used the word “ground,” showing plainly that it had in mind a singular subject. Had it been contemplated that this act was to apply as the court in the Graves case applied it, the Legislature would not have confined the wording of the statute to a single cause for which “not more than two new trials” should be granted.
It may be argued, as it was argued in the Graves case, that this act was passed, as was the act of 1796, for the purpose of regulating or preventing vexatious litigation, and for that reason the court, in applying the statute, is justified in looking to the spirit, rather than following the letter, of the law; but such a practice has been expressly condemned by this court in a long line of decisions, in which it has been held that with the policy or wisdom of the statute the court has no concern, but that these are matters that must address themselves exclusively to the Legislature. In the case of Bosley v. Mattingly, 14 B. Mon. 90, this court said that where the intention of a statute is clear and explicit, and its provisions susceptible of but one interpretation, the evil, if any, must be corrected by the Legislature, and not by the judiciary;
In the case of Witte v. Koeppen, 11 S. D. 598, 79 N.W. 831" court="S.D." date_filed="1899-06-26" href="https://app.midpage.ai/document/witte-v-koeppen-6685374?utm_source=webapp" opinion_id="6685374">79 N. W. 831, 14 Am. St. Rep. 826, where the construction of a statute was under consideration, the court said that: “In construing a statute a court is not at liberty to disregard its plain and express terms upon any theory as to its spirit. When it is plain and unambiguous courts are not permitted to search for its meaning beyond the statute itself.” And in the case of Chase v. Swayne, 88 Tex. 218" court="Tex." date_filed="1895-05-06" href="https://app.midpage.ai/document/chase-v-swayne-3902651?utm_source=webapp" opinion_id="3902651">88 Tex. 218, 30 S. W. 1049, 53 Am St. Rep. 742, the court said that: “It is a legitimate and recognized rule of construction for a court, in interpreting the Constitution and statutes, to find out their true meaning from the language used, the subject-matter, and purposes of those framing them; but to ingraft upon a Constitution or law something that has been omitted, and which the court believes should have been embraced, is judicial legislation.” And in the case of in re Walker’s Estate, 110 Cal. 387" court="Cal." date_filed="1895-12-10" href="https://app.midpage.ai/document/lane-v-walker-5447851?utm_source=webapp" opinion_id="5447851">110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104, in construing a statute, the court said that:. “The duty of the court is simply to ascertain and declare what is in substance or terms declared therein, not to insert what has been omitted, nor to omit what has been inserted.” Authorities might be cited in support of this proposition almost without number, and through them all there is a uniformity of expression to the effect that courts will not be permitted to usurp that power which the Constitutions, State and Federal, have reposed in the respective Legislatures. Thus the fundamental error in the Graves case lies in the fact that the court gave to the statute a meaning
But aside from this, it seems to me, with all due respect to the court, and especially the learned judge who wrote that opinion, that its logic is faulty and the conclusion reached is unsound. In fairness to the juries it should be said that, before they are criticised for returning verdicts not supported by evidence, they should have the case fairly presented and the law correctly given to them. It' is unreasonable to demand1 of the jury that it shall reach a proper and just conclusion based upon faulty premises; and no case should ever be reversed, because the verdict is not supported by the evidence, when substantial errors of law have been committed during the progress of the trial. Until the substantial errors of law have been eliminated it is impossible to tell what the verdict would have been; for, if the jury has reached one conclusion under a given state of facts, it is fair to presume that the same jury would, under a different state of facts, have reached an entirely different conclusion. Jurors want to arrive at the right of every case, and they have no opportunity to do so until the facts are properly presented upon which to base their finding, and the law correctly given by the court to serve as their guide in properly applying the facts. Hence I say that, when the court says that three juries have reached the same conclusion under the same evidence, it overlooked the fact that the law which had been given two of those juries, to serve as a guide to them, in applying the facts, had been wrong; and they could not in reason be expected to reach a proper conclusion while following the law as given by the trial court, and which, upon appeal, this court had said was wrong.
Dissenting Opinion
Dissenting Opinion by
We are unable to see that the construction of the statute we have followed violates any right of the appellant under the Constitution of the United States or any amendment thereto'. The right of appeal to this, court is the creature of the statute, and the Legislature may annex any condition it sees fit to it. We are also, of opinion that a construction of the statute on a mere matter of procedure, which has so long been acquiesced in, should not be now departed from.
Petition overruled.