Opinion
May 5, 1942. Rehearing Denied, June 17, 1942.
1. NEGLIGENCE: Automobiles: Sufficient Instruction on Failure to Keep to the Right. Plaintiff's instruction sufficiently hypothesized defendants' failure to turn defendants' automobile to the right of the center line of the highway, so as to pass without interference.
2. DAMAGES: Appeal and Error: New Trial: Issue of Excessive Verdict After Remittitur Sufficiently Raised. The trial court overruled the motion for new trial contingent on a remittitur reducing the judgment from $35,000 to $25,000. While the $35,000 verdict was attacked as excessive, the appellants did not attack the new monetary award other than by excepting to the overruling of the motion for new trial. This was sufficient to raise the issue that the new judgment was still excessive. Only one motion for new trial is necessary.
3. DAMAGES: St. Louis Verdicts as Compared With Verdicts Elsewhere: Judgment not Excessive. There is no basis for permitting to stand larger verdicts in St. Louis than elsewhere in the State. But plaintiff's injuries were many and serious, and a judgment for $23,400 (after deducting interest discounted) is not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. Thomas J. Rowe, Jr., Judge.
AFFIRMED.
Moser, Marsalek Dearing for appellants.
(1) The court erred in giving plaintiff's Instruction 1. It was error to charge defendants with an absolute duty to so turn as to pass the plaintiff's car without interference, without regard to the position of plaintiff's car on the highway as they met. Sec. 8385 (c), R.S. 1939. Statutes should be given a reasonable construction. The instruction violates this rule. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89. (2) The award of $25,000 damages is excessive. Pitcher v. Schoch, 139 S.W.2d 463; Christianson v. St. Louis Pub. Serv. Co., 333 Mo. 408, 62 S.W.2d 828; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Crockett v. Kansas City Rys. Co., 243 S.W. 902; Lackey v. M. K.I. Ry. Co., 305 Mo. 260, 264 S.W. 807; Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Rogles v. United Rys. Co., 232 S.W. 93; Corn v. Kansas City St. J. Ry. Co., 228 S.W. 78; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Weaver v. Mobile Ohio Ry. Co., 343 Mo. 223, 120 S.W.2d 1105. There should be a reasonable uniformity in the amount of the recovery permitted for injuries of the same or similar severity. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, 1093; Lynch v. Baldwin, 117 S.W.2d 273, 278; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797, 804.
Cox, Blair, Kooreman Wallach and Scott Peters for respondent.
(1) No question as to excessiveness of damages is for consideration in this court. (2) No charge that the amount of the verdict indicated bias or prejudice is briefed or argued by appellants in their brief. It was abandoned, and cannot be urged in this court. Compton v. Const. Co., 315 Mo. 1068, 287 S.W. 474; Denkman v. Prudential Fixture Co., 289 S.W. 591; Gorman v. Bank T. Co., 137 S.W.2d 571; Krahenbuhl v. Clay, 139 S.W.2d 978. (3) No question as to excessiveness respecting the amount as reduced by the remittitur is for consideration in this court. It was never attacked in the trial court. This court has never passed expressly on the question. Melenson v. Howell, 130 S.W. 557. (4) As to Instruction 1. (a) When an instruction requires the finding of several acts of negligence, sufficiently proved, in the conjunctive, as was done by Instruction 1 in this case, it is not error even if one thing required to be found, and found, was not alone sufficient or sufficiently proved. Herrington v. Hoey, 139 S.W.2d 483, 345 Mo. 1108. (b) It is settled law in Missouri, and in nearly every other state, that a violation of a duty enjoined by statute (as in this case) is negligence per se. 45 C.J., pp. 720, 721; Beck v. Coal Hauling Co., 293 S.W. 450; Ashby v. Road Co., 99 Mo. App. 185. (c) Instruction 1 did not authorize a finding for respondent until numerous acts constituting negligence as a matter of law were found and not then until the jury found that this negligence, so found, was the proximate cause of respondent's injuries. Now the proximate cause was the "cause without which the injury would not have happened." (There was no "intervening cause.") Diehl v. Brick Co., 299 Mo. 661. (d) Instructions must be read together. Instructions 5 and 11, given at appellant's instance, could there have been any possible tendency to mislead (which there could not), specifically excluded the possibility of any confusion. Stack v. General Baking Co., 283 Mo. 423; Stanton v. Jones, 39 S.W.2d 654, 332 Mo. 631. (5) The verdict was not excessive. The judgment was far from so. The trial court and jury were in the better position to judge the matter of injuries suffered. Morrell v. Lawrence, 203 Mo. 381; State ex rel. v. Daues, 282 S.W. 390; Cobb v. Car Foundry Co., 270 S.W. 399; Mabe v. Mfg. Co., 219 Mo. App. 248. (a) The preceding rule is peculiarly applicable to this case. Ranier v. Railroad, 271 S.W. 508. (b) It is now to be assumed that, on the issue as to amount of damages, the jury, as was in their province, believed the evidence and drew the inferences most favorable to respondent, and disbelieved unfavorable evidence and rejected unfavorable inferences. Busby v. Tel. Co., 287 S.W. 438; Milzark v. Biscuit Co., 259 S.W. 832; Fitzroy v. Bank, 234 S.W. 865. (c) It was peculiarly the province of the jury to determine the amount of damages. Other complaints of error are not for consideration in this connection. Clooney v. Wells, 252 S.W. 76. (d) The jury, with respondent and the witnesses before them, rendered the verdict. The trial court then considered the amount and reduced it substantially. That court and the jury concluded that $25,000 was not excessive. The trial court examined the matter a second time and then deducted part of the accrued interest. The burden on this question is now clearly and "trebly" upon appellant. State ex rel. v. Thompson, 245 Mo. 73; Kersten v. Hines, 283 Mo. 634; Monthey v. Contracting Co., 311 Mo. 156; Arkla L. Mfg. Co. v. Mfg. Co., 252 S.W. 697. (e) Courts should not interfere unless the amount is "grossly excessive or inadequate." State v. Deuser, 134 S.W.2d 136, 345 Mo. 628. (f) Even the cases appellant cites, by fair comparison, clearly warrant the verdict in this case.
This case comes to the writer on reassignment. Eleven of the jurors returned a verdict for plaintiff-respondent against both defendants-appellants in the sum of $35,000, damages for personal injuries sustained in a collision between their respective automobiles. The trial court enforced a remittitur of $10,000 and entered judgment for $25,000, this judgment postdating the verdict nearly fourteen months and thus discounting the interest thereon over $1600. Both appellants assign error in respondent's Instruction No. 1, and complain that the judgment is still excessive. Appellant Dodd was an employee of the appellant American Steel Institute. Respondent was riding with her husband. The collision occurred a few miles west of Drake, Missouri, in daylight, on U.S. Highway No. 50, which is of concrete slab between 18 and 20 feet wide, with a black traffic stripe in the middle.
Respondent was traveling east and the appellants west. At that point the highway ascends a long hill from the west, makes a curve to the south and levels off somewhat. Respondent's automobile had about reached that curve, and, according to the testimony for her, had been at all times on the right or south side of the highway. She and her husband first saw appellants' automobile when it was 75 to 100 feet away and on the left side of the highway. The hill prevented them from seeing it sooner. It was traveling about sixty miles per hour; respondent's automobile, 35-40 miles per hour. Respondent's husband honked his horn, pressed the brake pedal and tried to turn further to the right, but a violent collision, almost head-on, followed immediately on appellants' left side of the road. Appellant Dodd testified he was coasting down the hill about 35 miles per hour and was on his right side of the pavement. He had seen respondent's automobile from a long distance away but paid no particular attention to it until it was 35-40 feet from him. He noticed it was three or four inches over the traffic stripe, on his side of the pavement. He sounded his horn but respondent's husband violently turned to the left, the collision resulting.
Obviously this evidence presented issues of fact for the jury. Appellants do not deny that; but they say respondent's main instruction was erroneous under the particular facts of the case. No authorities are cited in support of the contention except Sec. 8385(c), R.S. 1939, sec. 7777(c), p. 5213, Mo. Stat. Ann., which provides that "an operator or driver meeting another vehicle coming [827] from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference."
The instruction first hypothesizes the facts that respondent's automobile was traveling eastwardly on the right side of the highway; and that appellants' automobile was traveling westwardly and rounding a curve without keeping to the right as far as was reasonably possible, and with the left side of the automobile to the left of the center line. Next it requires a finding that when the two automobiles were meeting each other appellants' automobile failed to turn to the right of the center line so as to pass without interference. Then it advises the jury that said failures to keep to the right while rounding the curve, and to turn to the right when meeting respondent's automobile (if found) constituted negligence; and if they further found such negligence directly and proximately caused the collision and plaintiff's injuries; and that plaintiff at all such times was exercising ordinary care (she was a guest, not the driver); their verdict should be for plaintiff against both defendants.
The fault found with the instruction is that it declares appellants' failure to keep and turn to the right constituted negligence as a matter of law, without regard to the position and movement of respondent's automobile when the two vehicles were meeting. Appellants assert the instruction permitted a verdict for plaintiff even though the jury may have believed respondent's automobile was turned to the left by her husband just before the collision. There is no merit in this assignment. The import of the instruction as a whole was that respondent's automobile was on the right side of the highway, and kept there; and that appellants' automobile was on the left side of the highway and failed to turn out. It hypothesizes appellants' failure to turn to the right of the center line, so as to pass without interference. This clearly implied respondent's automobile was not on that side of the highway.
That was what the evidence in her behalf showed. She was not required to hypothesize more in her instructions, since appellants submitted no affirmative defense to the jury. [Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120, 127(9).] Appellants pleaded and submitted the negligence of respondent's husband in driving the automobile in which she was riding as the sole cause of the collision and injury, but that was not an affirmative defense, and could have been shown under a general denial. [Geisendorf v. Brashear Truck Co. (Mo. App.), 54 S.W.2d 72, 73(1).] They also pleaded respondent's contributory negligence in failing to discover appellants' approaching automobile, warn her husband, and prevent him from driving on the left side of the road; but those issues were abandoned and not submitted. However, respondent's Instruction No. 1, here under discussion, required the jury to find she was free from negligence. We find no error in the instruction.
The only other question in the case is whether the judgment for $25,000 is excessive, considering the nature of respondent's injuries. Respondent says first that an inquiry by us into that question is foreclosed, because it was never submitted to the trial court. Her theory is that after appellants filed their motion for new trial assigning the $35,000 verdict was excessive, the trial court enforced a remittitur down to $25,000, as of a date fourteen months later than the verdict, thereby remitting $10,000 and discounting about $1,600 interest; and that appellants did not attack the new monetary award. However, the record shows the order overruling the motion for new trial was conditioned on compliance with the remittitur; and that respondent saved her exceptions to the overruling of the motion for new trial. Respondent's contention is at war with Melenson v. Howell, 344 Mo. 1137, 1141(1), 130 S.W.2d 555, 557(1-8), which is followed in Lee's Summit B. L. Assn. v. Cross, 345 Mo. 501, 507, 134 S.W.2d 19, 22(2-7). But she says the point urged now was not raised or considered in that case, and that the ruling there was an inadvertence, so far as it was applied to excessiveness of damages.
We do not think so. The assignment made in the Melenson case was that the appeal there stood as if no motion for new trial had been filed — because the motion which was filed went to the first judgment entered in conformity with the verdict, and not to the second judgment after a remittitur; and that no second motion for new trial was thereafter filed. Division 1 overruled this contention, holding the chief office of a motion for new trial is to prevent the entry of a judgment; that it is directed against the verdict, not the judgment; that only one motion for new trial [828] is necessary; and that under our practice the motion also serves to preserve matters of exception for appellate review. Indeed, the decision holds a second motion for new trial filed more than the statutory four days after verdict, amounts only to a suggestion, and authorizes nothing more than the trial court could do without it. When the original motion charges that the verdict was excessive; the court overrules the motion on condition that a specified amount be remitted; and the defendant excepts; we think the way is still open for him to complain on appeal that the reduction was insufficient.
In the instant case the respondent was a housewife 51 years old. Her injuries were factures of the nose, left jaw, second, third and fourth ribs, and of both bones of the right leg below the knee. The nose injury was a small depression fracture, resulting in a warping of the septum, or partition between the nostrils which interfered with breathing. This was a permanent effect causing excessive secretions on the obstructed side, which was aggravated by interference with nature's cleaning out processes, thereby causing a "vicious circle." There was also a deep cut or puncture in the flesh of the nose and lip with resultant disfiguring scars and numbness of the lip. All these conditions except the numbness could be corrected only by rather extensive plastic surgery. The fracture of the jaw bone was clear through. The jaw had healed but was sore and the lip and part of the face still numb at the time of the trial, some fourteen months after the casualty, so respondent could not tell when food would run over her lip. She had had some sinus trouble and some nervousness before the casualty.
The three broken ribs had healed at the time of trial but she still had some discomfort in her chest though it did not handicap her greatly. The leg fractures were extensive. In the tibia, or large bone below the knee, there was a separated piece. The fracture started about midway between the knee and ankle, and there was a shattering almost to the ankle joint. The fibula was broken across diagonally and rather shattered about three inches below the knee. These fractures were reduced only with difficulty by splints. Surgery was impossible or unsafe with this and the other painful injuries because of shock and the fact that respondent's lung was collapsed in the casualty, which prevented the use of a general anaesthetic. She was in a precarious condition. A very fair result was obtained, but the fractured leg is an inch shorter and an inch larger than the other one, which will in time probably result in a tilting of the pelvis. The ankle joint still had little freedom of motion at the time of the trial; and the circulation in that leg was rather bad.
The inability to use an anaesthetic of course meant severe pain accompanied the treatment of these various fractures; and the net result of the whole was "a generalized increased nerve inability of the organism as a whole." Respondent is "very jumpy, very fidgety." She was in St. Mary's Hospital at Jefferson City for eight weeks. She was taken by ambulance to the railroad station and thence by train to Dupo, where she remained in her sister's home for four weeks. It took her a month to learn to use crutches, and she had been using them for about thirteen months before the trial. Under the evidence for respondent, she is unable to perform her duties as a housewife; she has suffered great pain, discomfort and disfiguration. Her mental and nervous processes and reactions have been slowed up some.
Respondent has not cited cases where like judgments were sustained under approximately similar circumstances. She stands on the proposition that the trial court and jury were in a better position to evaluate her damages. Appellants have referred us to ten decisions where judgments [829] were cut to a figure substantially below the amount here. We have exercised the right to reduce verdicts and judgments, though unwilling to reverse and remand on the ground that the verdict was the result of passion and prejudice, ever since the decision in 1910 of Cook v. Globe Printing Co., 227 Mo. 471, 542-7, 127 S.W. 332, 333. In Mills v. Ill. Cent. Rd. Co. (No. 272, Mch. 30, 1942), 62 Sup. Ct. 827, recently decided by the United States Supreme Court, Mr. Justice JACKSON held in a separate concurring opinion that Congress may have intended to permit the plaintiff in a suit under the Federal Employers' Liability Act to "go shopping for a judge or a jury" in a more favorable forum, because he usually has to pay his lawyer on a contingent fee basis. The opinion was not controlling in the case in which it was delivered; nor has it any application here. But it justifies the observation that under our practice we cannot inquire or consider whether damage verdicts in St. Louis should be permitted to stand at a larger amount than elsewhere in the State. The guiding consideration with us in ordering conditional remittiturs of damages is whether the recovery was fair and reasonable in view of the facts most favorable to plaintiff, taking into consideration the amounts upheld in other cases from over the whole State and even elsewhere, for similar injuries. [Morris v. E.I. Dupont De Nemours Co., 346 Mo. 126, 133, 139 S.W.2d 984, 988 (8), 129 A.L.R. 352.] [See also other recent cases cited in 10 West's Mo. Dig. "Damages," sec. 127, p. 11, pocket part.]
Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463 ($18,000 reduced to $13,000); Christiansen v. St. Louis Public Service Co., 333 Mo. 408, 62 S.W.2d 828 ($18,000 reduced to $15,000); O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085 ($20,000 reduced to $12,500); Crockett v. K.C. Rys. Co. (Mo.), 243 S.W. 902 ($15,000 reduced to $10,000); Lackey v. M. K.I. Ry. Co., 305 Mo. 260, 264 S.W. 807 ($10,000 reduced to $7,500); Dorman v. East St. L. Ry. Co., 335 Mo. 1082, 75 S.W.2d 854 ($10,000 reduced to $7,500); Rogles v. United Rys. Co. (Mo.), 232 S.W. 93 ($16,000 reduced to $12,000); Corn v. K.C. St. J. Ry. Co., 228 S.W. 78 ($16,000 reduced to $7,500); Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27 ($10,000 reduced to $6,000); Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865 ($20,000 reduced to $8,000); Weaver v. Mobile Ohio R. Co., 343 Mo. 223, 120 S.W.2d 1105 ($17,000 reduced to $11,000).
Nevertheless it is our opinion that the judgment below for $23,400 (after deducting the interest discounted) is such that we cannot interfere, regardless of the county in which the case was tried. In many of the decisions cited by appellants the plaintiff was a woman about the age of respondent. But in none of them was there a combination of circumstances such as this record presents. When it is considered that the respondent suffered fracture of the nose, jaw, three ribs and both bones of the lower leg, together with disfigurement, nerve destruction, some permanent nervous and physical impairment and disability; and that with all these painful injuries she was forced to undergo treatment without the use of anaesthetics; we can see no reasonable justification for forcing a further reduction in the damages. All concur.