21 Mo. 354 | Mo. | 1855
delivered the opinion of the court.
This was an action by plaintiff against Sanger & Burnell, part owners of a stage coach, for injuries received by the plaintiff from the upsetting of the coach in which the plaintiff was at the time a passenger.
The case was tried by a jury in the Callaway Circuit Court, at the April term, 1855, and a verdict rendered for the plaintiff for eleven hundred dollars. A motion was made by defendants for a new trial, which being overruled, they bring the case here by appeal.
The refusal of the Circuit Court to grant a new trial is the principle ground relied upon here by the defendants for a reversal of this judgment. They contend that the verdict was obtained by fraud, and also that the damages are excessive.
The plaintiff, in his petition, stated that, by the overturning and upsetting of the defendants’ stage, he had his right shoulder and shoulder-blade, and three of his ribs broken, fractured and mashed; and that he was also, in other respects, greatly hurt, bruised and wounded, by means of the turning over and upsetting of the said stage coach.
On the trial before the jury, the great struggle seemed to be, to show when the injuries to the plaintiff were in reality received by him. The defendants contended, and endeavored to show to the jury, that the plaintiff received the injuries in the state of Ohio, before he started to Missouri, by means of his riding horse falling down with the plaintiff and fracturing his shoulder, and dislocating it; and that the injuries stated in his petition were not received by him by the overturning and upsetting of the defendants’ stage coach, but by the fall of the horse. The plaintiff endeavored to show a complete recovery from the effects of the fall of his horse, and that the overturning of the stage was the cause of his injuries. The proof showed that the stage driver was drunk, and that he overturned the stage in a level piece of prairie, with some seven or eight passengers, besides the plaintiff, in it. The plaintiff complained very much of the injuries received at the time. The defendants contended that this was a fraud on the part of the plaintiff, in order to recover from them compensation for injuries which he
Many instructions were given by the court, at the motion of the parties ; one of which, given for defendants, and numbered 5, is as follows : “If the jury believe from the evidence, that the injury complained of by the plaintiff was occasioned by the fall from a horse or otherwise, in the state of Ohio, previous to his coming to this state, and that plaintiff was still suffering from the effects of said injury when the stage was upset, and that plaintiff received no additional injury thereby, then they will find for defendants ; and if any additional injury was received in consequence of said upsetting, then they will find only such damages as will compensate said plaintiff for such additional injury.”
This instruction placed before the jury, properly, the fact of a previous injury, and directed them not to give damages for such previously received injury, if they should be of opinion there wa3 such, and to give damages only for such additional injuries as were received by the upsetting of the stage. This matter, then, in which the defendants allege the plaintiff’s fraud to consist, was brought out and placed before the jury; it was left open for them to consider and pass upon it.
Had this matter of the fall of the horse in Ohio, and the previously received injury of the plaintiff, not been before the jury — not been brought out by a vigilant, searching inquiry into its nature and extent, and fully placed before the jury, with proper and liberal instructions in regard to it by the court,
1. As to the excessive damages, there is nothing which will justify the interference of this court, on this ground, as presented by the record before us. The jury is the proper tribunal to assess the requisite damages in cases of this character; and, unless their estimate he an exorbitant one, or such an one as at first blush would appear the offspring of malice, or exceedingly improper bias on their part, the courts have invariably refused to correct the verdict by granting a new trial. (Fallenstein v. Boothe, 18 Mo. Rep. 429.)
Where the amount of damages is matter of opinion merely, a new trial will not be. granted for excessive damages, unless flagrantly excessive. On this ground, we do not think this court authorized to interfere. Here, the damages are merely
2. The surprise on the part of the defendants, occasioned by the unexpected close of the case, by the plaintiff, without his examining all the witnesses summoned on his part, and thereby depriving the defendants of the testimony of their witness, Mrs. Lee, who reached the place of holding court after the argument of the case had been closed, and the case submitted to the jury, is more a mattter of misfortune to the defendants than fault on the part of the plaintiff, or of error on the part of the court.
The defendants knew their witness was absent; they did not ask that the case might be postponed for a time, or for a continuance of it, but trusted to the chances of having their witness ready in time; in this they were disappointed. It was competent for the plaintiff to stop when he had made out his case, as he supposed ; nor could the defendants object. It is within the discretion of the court to hold its sessions in the night time for the dispatch of business and the convenience of parties, jurymen and witnesses. This is often done; nor can it afford just cause of complaint to the defendants in this case. They knew that their witness was not in attendance; they cal
3. As to the last remaining point, the newly discovered evidence, that is also against the defendants.
This evidence is what may be called cumulative, and upon the subject of newly discovered evidence, as the ground for a new trial, the law is well settled. (4 Bibb, 563. 2 A. K. Marsh. 348. 12 Mo. Rep. 57.) In the case of Beauchamp v. Sconce, (12 Mo. Rep. 67,) this court held that cumulative evidence, that is, evidence of the same import as that given upon the trial, was not sufficient to authorize the court to grant a new trial, because such a practice would inevitably lead to fraud, subornation, delay and vexatious uncertainty. This is in accordance with the general rule. In the case of Smith v. Brush et al., (3 Johns. 84,) the court held, that, where the new testimony alleged to be discovered does not relate to any new fact, but goes to corroborate what a witness had previously stated, was not a sufficient cause for granting a new trial. The language of the court is, “ but it is against the general rule to grant a new trial, merely for the discovery of cumulative facts
Upon the whole record in this case, we cannot see any cause for the interference of this court with the judgment below ; it is therefore affirmed;