State ex rel. American Car & Foundry Co. v. Daues, 313 Mo. 681 (Mo. 1926)

BLAIR, C. J. —

This is an original proceeding in certiorari whereby the relator seeks to quash the opinion of respondents in the case of Cobb v. American Car & Foundry Company, reported in 270 S. W. (Mo. App.) 398. Cobb recovered a judgment against relator in the sum of $3,000 on account of alleged injury to his eye through alleged negligence of relator. The trial court required Cobb to remit $1,000- of the damages awarded by the jury, on the ground that the verdict was excessive, or suffer a new trial. Cobb refused to make such remittit-ur. A new trial was- thereupon granted to relator. Cobb appealed to the St. Louis Court of Appeals. That court reversed the order granting such new trial, and remanded the case to the trial court with directions to reinstate the verdict and enter judgment in accordance therewith.

It is the contention of relator that the opinion of respondents contravenes certain controlling, decisions of this court, and it asks that such opinion be quashed. Said opinion is quite brief and we quote it practically in full, as follows:

show that plaintiff’s loss of sight is the result' of an injury to his eye received in defendant’s plant, while he experts of the defendant testified to facts tending to show that whatever loss of sight plaintiff suffered was due to trachoma, a disease which plaintiff had been afflicted with long prior to the time that plaintiff was hurt in defendant’s plant.

trial, hearing the testimony of all the witnesses, and observing their manner in testifying. In the instant case, however, since the order of the trial court clearly shows that in his view there was substantial evidence to support a verdict on the issue of fact in plaintiff’s favor (and the record does abundantly so show), and there is no dispute but that the plaintiff has lost seventy-five per cent of the sight of his left eye, we are of the opinion and it becomes our duty to rule that the verdict of the jury, namely, $3,000, was not excessive, and that the learned trial judge abused his discretion in setting’ aside the verdict on the ground that it was excessive. [Heeter v. Boorum & Pease Loose Leaf Book Co., 237 S. W. 902, and cases therein cited.] See, also, as to size of verdict, Knott v. Missouri Boiler & Sheet Iron Works, 299 Mo. 613, l. c. 641, 253 S. W. l. c. 758; Adams v. Ry. Co., 287 Mo. l. c. 554, 229 S. W. 790; Laycock v. United Rys. Co., 290 Mo. 344, 235 S. W. 91.”

■ Respondents made it very clear that they were distinguishing the case before them from cases where the evidence upon the extent of the injuries sustained is conflicting and a remittitur has been ordered by the trial court. Respondents held that there was no controversy that Cobb had sustained the loss .of seventy-five per cent o'f the sight of his left eye- and that the sole controversy in the trial court was concerning the cause of such loss of sight. That is to say, that there was no issue in the trial court that the loss of sight was partly due to trachoma and partly the result of the injury there in question. Relator makes no contention that respondents ’ ruling that $3,000 is not' an excessive award of damages for the loss of seventy-five per cent of the sight of one eye conflicts with any controlling decision of this court. The cases cited in respondents’ opinion well support the amount of the award made by the jury, if such loss of sight was due solely to the alleged injury. .

Relator contends that respondents’ opinion conflicts with. State ex rel. A. T. & S. F. Ry. Co. v. Ellison, 268 Mo. 225, and McCloskey v. Pulitzer Publishing Co., 163

Mo. 22. In State ex rel. v. Ellison, the plaintiff below had been put off a train for failure to pay fare at a rate of more than two cents per mile. He recovered $5 compensatory and $500 punitive damages. The trial court required a remittitur of $400 of such punitive damages on the ground that the amount awarded by the jury was excessive. Plaintiff refused to remit and a new trial was granted. The Kansas City Court of Appeals reversed the judgment of the trial court and directed that judgment be entered upon the verdiót. The Court of Appeals so ruled because, as it said, ‘ ‘ If there is evidence in a case which tends to support a verdict for punitive damages the court cannot interfere as to the amount except it be so disproportionate to the wrong committed by the defendant as to strike all reasonable men that the jury, in fixing upon the sum found, have acted corruptly, or from passion and prejudice. It is a species of allowance made to the plaintiff not because it is his due, but as a punishment to the defendant and a deterring example to others. While a plaintiff has añ absolute right to compensation for a wrong committed against him, he has no absolute right to demand that the defendant be also punished. The jury may inflict the punishment, but it is left absolutely with them.”

This court en banc quashed the opinion of the Kansas City Court of Appeals. It was first held, in harmony with all the cases, that the action of a trial court in setting aside a verdict as being against the weight of the evidence will” not be reviewed except- upon a showing that no verdict in'favor of the party to whom the new trial was granted would be allowed to stand.

This court then considered whether an award of punitive damages could be reduced when deemed excessive. Judge Fakis said:

they.have over the other .sort. [8 R. C. L. 680, 681.] The differences are only in degree, growing out of difficulties met by the courts in exercising this power. [Sperry v. Hurd, 267 Mo. 628.]”

It thus appears that wherever the amount of the damages to which a plaintiff is entitled, whether compensatory or punitive damages, is an issue upon which the evidence conflicts, the trial court’s discretion in compelling a remittitur and granting a new trial, if such remittitur is not made, will not be interfered with, unless such interference would be justified where a new trial had been granted because the verdict -was against the weight of the evidence.

But there was nothing said in State ex rel. v. Ellison, supra, which intimates that the trial court has the right to compel a remittitur, or grant a new trial if such remittitur is not made, where the extent of the disability suffered is admitted, or at least not controverted, and the damages assessed are not excessive- for such disability, if defendant’s' act was the cause of all of such disability.

Let us suppose a case which may make respondents’ position, as we understand it, a little more clear. A sues B in damages for an injury caused by the act of B in assaulting A and striking him in the eye with a rock, resulting in the loss of the eye. A’s proof tends to show that the .rock was thrown by B.and that such rock struck him in the eye and caused all of the injury. The loss of the sight of the eye is admitted, or at least the proof as to such loss is uncontradicted. B denies that he struck A with a rock and offers testimony tending to prove that A was engaged in an entirely different and unconnected fight with C a few minutes before he fought with B and that in the former fight C struck A in the eye with a stick and caused all of the injury to A’s eye. The jury finds for A against B, thus finding that B caused the injury to the eye, and assessed A’s damages at a sum well within approved precedents as to such an injury.

The sole issue then was whether B or C inflicted the injury.

If there had been proof by B, or by either party for that matter, that B had struck A in the eye, but that the injury which he inflicted was only trivial and that a part of the injury had been previously inflicted by C, it would be a case where the trial court might have found that' the award of damages against B was excessive, if that court deemed the weight of the evidence tended to prove that B was responsible for only a part of A’s injury. But, as the proof offered by A was that B’s act caused all of the injury and B’s proof tended to show that C’s act caused all of the injury and the damages awarded were not excessive for the injury received,, whether caused solely by B or caused by 0, the trial court was not authorized to. grant a new trial on the ground that the award of damages', not-the finding of B’s responsibility therefor, was against the weight of the evidence.

Such appears to us to be the position taken in respondents’ opinion. It does not appear from the opinion that there was any proof offered by relator that Cobb’s injury was partly due to disease and partly to an injury, for which relator was responsible, if its act was negligent. As we understand the opinion, relator denied that the injury was caused in any degree by its act. It introduced proof only upon the subject of the cause of the condition of Cobb’s eye, to-wit, that such condition was solely due to trachoma of long standing and was not in any respect, or as to any part thereof, due to an injury inflicted by relator.

So far as we are aware, this court has never applied the rule applicable where verdicts have been set aside as being against the weight of the evidence to a state of facts similar to that stated by respondents in their opinion. Conflict of opinion, therefore, does not appear.

It must not be forgotten that a cojirt pf appeals is a court of last resort, when it acts within its appropriate jurisdiction, to the same extent that this court is

a court of last resort, when it acts within its appropriate jurisdiction. The test is not whether we agree with the conclusion reached by the Court of Appeals, but the test is, did the Court of Appeals, in reaching- the conclusion it reached, announce any rule or principle of law which conflicts with a controlling decision of this court? If it 'did, it exceeded its jurisdiction, because it is its constitutional duty to follow the decisions of this court. In such case, we may exercise our power of supervisory control and quash the judgment of the Court of Appeals. If that court did not announce any rule or principle which conflicts with some rule or principle previously laid down by this court upon the same or similar state of facts, we are without power to quash its judgment, no matter how incorrect we may deem the rule or principle laid down by it. The power of a court to decide a case necessarily implies its power to decide such case erroneously, as well as correctly.

We have carefully studied the case of McCloskey v. Pulitzer Publishing Co., supra. It is not contravened.by respondents ’ opinion. There was proof in that case that the newspaper acted in good faith in publishing the article presented by plaintiff’s wife and the evidence tended very strongly to prove the truth of the statements contained in the published article. Upon a former trial the jury had found for defendant. Publicity had been given the same matter during the trial of a divorce proceeding between plaintiff and his wife. There was no evidence of actual malice or recklessness on the part of defendant in publishing the article in question. Upon such a state of facts we held that it was proper for the trial court to find that the award of punitive damages made by the jury was excessive and against the weight of the evidence. No rule or principle was laid down by this court in the McCloskey case with which anything said by respondents in the case at bar conflicts. The facts are not in any way similar.

There is nothing in Spivack v. J. Hahn Bakery Co., 214 S. W. (Mo. Sup.) 166, which need be considered at

any length. There was a verdict for defendants in a suit for damages for the death of plaintiff’s child. The judgment for defendant was set aside by the trial court upon the motion of plaintiffs on the ground that the verdict of the jury was against the weight of the evidence. Brown, C., restated the well known and thoroughly established rule that where there is substantial evidence which would sustain a verdict for the party against whom the jury decided the issues, had the jury decided for that party, we are not authorized to interfere with the discretion of.the trial court in setting aside the verdict, for the reason that the trial court deemed the verdict the jury did return to be against the weight of the evidence.

There is nothing in State ex rel. Iba v. Ellison, 256 Mo. 644, cited by relator, as having been contravened by respondents’ opinion, which aids relator’s case. It is in line with the other cases we have considered which hold that we are not authorized to interfere with the exercise by. the trial court of its discretion in granting a new trial when the verdict is deemed to be against the weight of the evidence, unless we can say that a verdict for the party to whom the new trial was granted could- not have been justified under the evidence.

Relator argues that respondents have confused the foregoing rule with the rule- that this court will not reverse a 'case upon the weight of the evidence in a law case where the trial court has refused to set the verdict aside as being against the weight of the evidence. No such confusion appears in respondents’ opinion, and no conflict of opinion is therefore engendered between such opinion and the cases announcing the rule last stated.

There is no merit in relator’s contention that respondents ’ opinion conflicts with Mahany v. Kansas City Rys. Co., 228 S. W. (Mo. Sup.) 821, or O’Leary v. Scullin Steel Co., 260 S. W. (Mo. Sup.) 55, in holding that the expert medical evidence introduced by Cobb was sufficient upon which to base the verdict that Cobb’s injury was caused by the happening at relator’s plant. Respond-

exits said nothing in their opinion which could possibly be said to conflict with anything- said by this court in those cases. Nothing whatever was said about the sufficiency or the insufficiency of the character of the testimony of the experts offered by Cobb or by relator as to the cause of the impairment of Cobb’s eyesight. Respondents merely said that the proof by experts that Cobb’s loss of visioq was due entirely to injury was in,direct conflict with the proof by other experts offered by relator that such loss of vision was entirely due to trachoma. If the trial judge had granted relator a new trial because the finding that Cobb’s loss of eyesight was due to the injury was against the weight of the evidence, the effect of the rule announced in the O’Leary case and in Gannon v. Laclede Gas Light Company, 145 Mo. 502, might require consideration.

In its reply brief relator calls attention to State ex rel. Boeving v. Cox, 276 S. W. (Mo. Sup.) 869. We are unable to see how anything decided in that case throws any light upon the case at bar. We there held that the Court of Appeals will be deemed to have considered and passed upon a question in the case vital to the decision reached, whether that court discussed the question, or not. and that its conclusion was in harmony with the result reached. Here respondents did not fail to consider the vital issue. They did consider it and said that the proof on the one hand was that the injury was entirely due to injury and on the other entirely to disease. In this proceeding it is conclusively presumed that respondents have correctly stated the facts in that respect. We have no right to say that there must have been evidence tending to prove that relator was only responsible in part for the condition of Cobb’s eye.

As we do not deem respondents’ opinion to (be in conflict with any rule or principle announced by this court upon the same or a similar state of facts, it results that our writ was improvidently issued and should be quashed. It is so ordered.

All concur.