Summary
In Fawkes v. National Refining Company, 341 Mo. 630, 108 S.W.2d 7, our Supreme Court held that a codefendant who had filed answer and, later withdrew it, was in default and, 108 S.W.2d loc. cit. 10, said: "A default admits the truth of the allegations of the petition constituting plaintiff's cause of action and defendant's liability thereunder."
Summary of this case from Osborn v. GibsonOpinion
July 30, 1937.
1. TRIALS: Withdrawal of Answer. In an action for damages against a corporation and its employee, a withdrawal by the employee of his answer admitted allegations of the petition constituting the cause of action against that defendant and by that default left the amount of damages sued for to be liquidated and became a matter of proof.
It was not necessary that an interlocutory judgment be first entered.
2. TRIALS: Default by Codefendant. In an action against a corporation and its employee a default by the employee did not relieve plaintiff of proving her case against the corporation, employer. The default of one defendant does not operate as an admission of liability against a codefendant.
3. TRIALS: Codefendant: Default by One: Respondeat Superior. An admission against interest of one defendant could be construed as an admission against a codefendant only where the common interest of the codefendants extends not only to the entire ground of recovery but covers the entire ground of liability, where codefendants, if liable at all, are liable jointly.
In an action for damages against a corporation and its employee an admission of liability by the employee was not an admission against the corporation unless the rule of respondeat superior applied.
4. TRIALS: Codefendants. In an action for damages against a corporation operating a filling station and the corporation employee attending the filling station, where the rules and other evidence were introduced relating to the employee's duties, the issue was properly submitted to the jury to determine whether or not under all the evidence the employee was acting within the scope of his duties.
5. TRIALS: Peremptory Instruction: Waiver. In an action for damages plaintiff waived her objection to the action of the court in refusing to give her peremptory instruction by later requesting and receiving instructions on the merits of her case.
6. TRIALS: Concurring Negligence. In an action for damages caused to plaintiff when the truck in which she was riding struck defendant's truck, an instruction authorizing a verdict for defendant if the driver of the truck in which plaintiff was riding was guilty of negligence in failing to see the defendant's truck, was erroneous in that it authorized a verdict for defendant regardless of any concurring negligence of the defendant in pushing its unlighted truck on the highway.
The negligence of the driver of an automobile without more cannot be imputed to a guest.
Even if the driver of the truck in which plaintiff was riding was negligent, the corporation owner of the truck which was struck was also liable if it was guilty of negligence contributing to the collision.
To constitute a negligent act the proximate cause of the injury, it need not necessarily be the sole cause but is sufficient if it is a concurring cause. Where several causes concur to produce an injury either cause may be termed a proximate cause if it is an efficient cause.
7. TRIALS: Proximate Cause: Jury Question. In an action for damages caused to plaintiff when the truck in which she was riding collided with defendant's unlighted truck on a highway whether the absence of lights on the defendant's truck was a contributing proximate cause under the facts was for the jury.
8. TRIALS: Negligence of Guest. In an action for damages caused to plaintiff when the truck in which she was riding collided with defendant's unlighted truck on the highway, it was a question for the jury whether the plaintiff did what a reasonably prudent person would do to discover the danger and warn the driver.
9. TRIALS: Nominal Verdict. In an action for damages against a corporation and its employee caused to plaintiff by the collision of a truck in which she was riding with defendant's unlighted truck on a highway where the employee defaulted and where the plaintiff suffered serious personal injuries a verdict of $1 against that defendant by the jury should be set aside as misconduct on the part of the jury. A verdict for nominal damages will not be sustained where the evidence showed that substantial damages were incurred.
In such case where there was substantial evidence supporting plaintiff's alleged ground of recovery against the corporation, a verdict for that defendant should be reversed.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
JUDGMENT AGAINST DEFENDANT HOWELL REVERSED AND REMANDED FOR NEW TRIAL AS TO THE ASSESSMENT OF PLAINTIFF'S DAMAGES ONLY, THE VERDICT TO REMAIN IN FORCE. JUDGMENT AGAINST DEFENDANT COMPANY REVERSED AND REMANDED.
Luther W. Adamson and Martin J. O'Donnell for appellant.
(1) The court erred in refusing the peremptory instruction requested by plaintiff directing the jury to find for plaintiff for the following reasons: (a) The evidence adduced by both parties established the liability of the refining company as a matter of law. The only contention made by that defendant was that Howell had no authority to help push the Stinnett coal truck from the station ground onto and over the highway. The printed rules established the contrary as a matter of law. Darlington Lbr. Co. v. Mo. Pac. Ry. Co., 243 Mo. 224; Kazee v. K.C. Life Ins. Co., 217 S.W. 339; Zarber v. Ins. Co., 10 S.W.2d 967; State ex rel. Bowdon v. Allen, 337 Mo. 268; Gately v. Ry. Co., 332 Mo. 13; Waters v. Bankers Life, 226 Mo. App. 1200; Wendorff v. Mo. State Life, 318 Mo. 363. (b) The liability of defendants was joint and the admission of liability and the extent of plaintiff's injury by Howell during the trial was admissible against and binding on the defendant, National Refining Company. St. Louis v. Clark, 35 S.W.2d 992; Armstrong v. Farrar, 8 Mo. 627; Hurst Salmon v. Robinson, 13 Mo. 60; Adair v. K.C. Term. Ry., 282 Mo. 133; 22 C.J. 352; Schierbaum v. Schemme, 157 Mo. 21; Slagle v. Calloway, 330 Mo. 1065; Sec. 1079, Wigmore on Evidence. (c) Howell admitted the facts alleged in the petition at the instance and instigation of the National Refining Company and for its benefit only and not for his own. Hence it is bound by the admission. Treadwell v. Graham, 88 N.C. 208; Kanopka v. Kanopka, 113 Conn. 30; Miller v. Journal Co., 246 Mo. 722. (d) The admission was made by Howell in furtherance of a wrongful purpose, to-wit: to suppress competent evidence pursuant to a concert or scheme between the two defendants. Hence the admission was competent against and binding on the National Refining Company. Reese v. Fife, 279 S.W. 424; 22 C.J. 396; State v. Gatlin, 267 S.W. 797; Lawler v. Loewe, 235 U.S. 522; State v. Carroll, 288 Mo. 392; State v. K.C. Live Stock Exc., 211 Mo. 181; Heim Brewing Co. v. Belinder, 97 Mo. App. 64. (e) The admission made by the withdrawal of the answer of Howell was a judicial admission made by the National Refining Company through its duly authorized agents confessing the truth of all the allegations of the petition against the National Refining Company and Howell. Wigmore on Evidence, secs. 2590, 2591; Oscanyon v. Arms Co., 103 U.S. 261; Pratt v. Conway, 148 Mo. 299. This court said in Pratt v. Conway: "Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals." Cantrell v. Knight, 72 S.W.2d 199 (2) Where two coparties are defendants and the liability is joint and the defense of one party depends upon the defense of the other as here, then the admission of one coparty made at the instance of the other party and for its benefit is binding on it and constitutes a judicial admission against it. Tredwell v. Graham, 88 N.C. 211; 22 C.J. 350. (3) There was a concert or agreement between the defendants and their agents to suppress or exclude competent, relevant and material evidence, a purpose which was in itself unlawful and consequently any act or statement or admission made by any of the parties in connection with the accomplishment of the unlawful purpose as a result of carrying out the concert, scheme or design, was admissible against and binding on any coparty. Reese v. Fife, 279 S.W. 424; 22 C.J. 396; State v. Gatlin, 267 S.W. 797; Lawlor v. Loewe, 235 U.S. 522, 35 Sup. Ct. 170, 59 L.Ed. 341; State v. Carroll, 288 Mo. 407, 232 S.W. 699. (4) The court erred in receiving the verdict and rendering judgment thereon against Howell for one dollar for the reason that under the uncontradicted evidence in the case and under the admission of Howell the plaintiff was entitled to the entire amount sued for and in any event a jury may not render any verdict it pleases without reference to the facts and it establishes passion, prejudice or misconduct. 17 C.J. 725; Nelson v. Conn. Mut. Life Ins. Co., 14 Mo. App. 592; Fairgrieve v. Moberly, 29 Mo. App. 141; McCarty v. Transit Co., 192 Mo. 401; Fisher v. St. Louis, 189 Mo. 567; Grodsky v. Bag Co., 324 Mo. 1067.
Ringolsky, Boatright Jacobs and McVey, Randolph, Smithson Garrity for National Refining Company.
(1) No error in refusing plaintiff's peremptory instruction, because she waived the error, if any, by requesting and receiving instructions submitting the question of liability to the jury. Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307; Blair Horse Mule Co. v. Hatfield, 175 Mo. App. 296, 162 S.W. 319; Emerson-Brantingham Implement Co. v. England, 186 S.W. 1181; LaMonte Bank v. Crawford, 27 S.W.2d 762; Deere Plow Co. v. Cooper, 91 S.W.2d 145. (2) The printed rules did not establish as a matter of law that Howell was acting within the scope of his employment. Plaintiff so construed the rules at the trial by seeking to prove that by custom or oral instruction Howell was acting within the scope of his authority, and by requesting and receiving her Instruction 2-a submitting to the jury the question of whether or not Howell was acting within the scope of his employment. (a) The rule that an admission of liability by one of two jointly liable is an admission by both has no application to actions in tort against a master and servant where the master can only be held liable under the doctrine of respondeat superior. They are not jointly liable within the meaning of such rule. One may be liable and the other not. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Von De Veld v. Judy, 143 Mo. 348, 44 S.W. 1117; St. Louis v. Clark, 35 S.W.2d 986; Steckel v. Swift Co., 56 S.W.2d 806; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883, 6 L.R.A. (N.S.) 202; King v. Gilson, 191 Mo. 307, 90 S.W. 367. (b) To hold otherwise would involve complete departure from the rule that declarations of a servant or agent cannot be received against the principal as admissions, but only as a part of the res gestae. Atkinson v. Am. School of Osteopathy, 240 Mo. 338, 144 S.W. 816; Frye v. Railroad Co., 200 Mo. 377, 98 S.W. 566, 8 L.R.A. (N.S.) 1069; Carson v. St. Joseph Stockyards Co., 167 Mo. App. 443, 151 S.W. 752. (c) A party has the absolute right to stand in default, if he so elects. Strictly speaking, standing in default is not an admission of liability but, rather, an election on the part of the defaulting defendant not to controvert the allegations of the petition as to liability. There still remains the question of damages, as to which the defaulting party has the right to trial by jury, and the defaulting party may minimize or completely defeat the action by showing there was no damage. Sec. 1077, R.S. 1929; Electrolytic Chlorine Co. v. Wallace Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A.L.R. 930; State ex rel. v. Brown, 224 Mo. App. 844, 23 S.W.2d 1092. (d) Where master and servant are sued jointly for tort committed by the servant, and the servant stands in default, a plaintiff will not be permitted to unnecessarily prove the allegations of the petition as against the servant and thus by subterfuge inject into the record admissions the servant made against his interests where they can serve no useful purpose, he having admitted liability, but can only serve to prejudice the master's defense. Shannon v. Del-Home Light Co., 43 S.W.2d 872; Kurz v. Greenlease Motor Car Co., 52 S.W.2d 498, certiorari quashed State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638. (3) Inadequate verdict against one defendant who may be legally liable without the other defendant being liable constitutes no valid reason for setting aside the verdict in favor of the defendant held not liable. Stotler v. C. A. Railroad Co., 200 Mo. 107, 98 S.W. 509; State ex rel. v. Haid, 325 Mo. 532, 29 S.W.2d 714; Electrolytic Chlorine Co. v. Wallace Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A.L.R. 930.
This is an action for $60,000 damages for personal injuries. On May 9, 1931, plaintiff was a passenger riding with her husband in the cab of his one-half ton truck about ten-thirty in the evening eastwardly along Van Horn Road, which road is a part of the State highway system in Jackson County connecting Kansas City and Independence. They were driving home. It had been raining and at the time it was misting. On the south side of Van Horn Road at its intersection with Hardy Avenue, defendant National Refining Company, hereinafter referred to as the "company" maintained a gasoline filling station which was in charge of its employee Earl Howell. On that evening C.H. Stinnett, with a companion, pushed his one and one-half ton coal truck into the filling station and purchased some gasoline. After the purchase the engine of the coal truck would not start, whereupon Stinnett and his companion, with the help of Howell, the filling station attendant, pushed Stinnett's truck from the filling station premises onto the highway and eastwardly along the highway toward the top of a slight rise after gaining which the truck was to coast down the opposite descending grade. Plaintiff charges that at the time Howell and the others were pushing Stinnett's truck onto and along the highway there were no lights on the truck and states facts showing a violation of the statutory requirement that after dark motor vehicles shall carry lighted lamps; that defendants knew the truck had no lights and were negligent in pushing it onto and along the highway without lights; and that as a result of the absence of lights the truck in which plaintiff was riding collided with the rear end of Stinnett's truck as it was being pushed along, injuring the plaintiff. The collision occurred at a point just east of the filling station. Plaintiff joined as defendants the company, Howell and Stinnett. It appears that the action was originally begun in the Circuit Court of Jackson County at Independence, resulting in a mistrial and on change of venue was transferred to the Circuit Court of Jackson County at Kansas City. Before testimony was introduced at the second trial defendant Howell withdrew his answer. Before the case was submitted to the jury the plaintiff dismissed as to defendant Stinnett. The court directed the jury to return a verdict in favor of the plaintiff against defendant Howell, which the jury did assessing plaintiff's damages at $1. The jury returned a verdict in favor of the company. Plaintiff appeals.
After the jury was sworn the attorneys representing defendant Howell asked leave of the court to withdraw his answer previously filed and to withdraw as his attorneys, whereupon Howell was called and the following proceedings were had:
"The COURT: You are one of the defendants in this case?
"Mr. HOWELL: Yes, sir.
"The COURT: . . . Your attorneys are withdrawing answer. That is a confession of liability on your part. That is with your knowledge and consent?
"Mr. HOWELL: Yes, sir.
"Mr. O'DONNELL: Mr. Howell, do you fully realize that if you have any defense to this action, by doing this that you waive that defense?
"The COURT: You understand that this is a confession of liability in any event?
"Mr. HOWELL: Yes, sir.
"Mr. VEY: And you are willing for us to withdraw our appearance for you?
"Mr. HOWELL: Yes, sir.
"Mr. BOATRIGHT: I might say that I explained it to him yesterday morning."
Later Howell filed a written request to withdraw his answer, which the court granted. Thereafter he was called as a witness for the plaintiff and testified that he signed this request at the suggestion of the attorneys for the company who were also representing him and who had filed the answer in his behalf. The company's service station supervisor, Howell's superior, testified that he told Howell that he had been advised by the company's attorneys that if Howell would withdraw his answer, that "it would probably be beneficial to the National Refining Company . . . it would help the case."
Plaintiff contends that the above action of Howell at the direction of the company, his codefendant and employer, was a confession of judgment for the full amount prayed for in the petition not only by Howell himself, but also on the part of the company and that the court erred in failing to render a judgment against both defendants accordingly. There is no merit in plaintiff's contention. Howell's action in withdrawing his answer merely put him in default. A default admits the truth of the allegations of the petition constituting plaintiff's cause of action and defendant's liability thereunder. [Electrolytic Chlorine Co. v. Wallace Tiernan, 328 Mo. 782, 41 S.W.2d 1049.] This is precisely what the court told Howell in advising him of the effect of the withdrawal of his answer, namely: "The COURT: Your attorneys are withdrawing your answer. . . . That is a confession of liability on your part." Later when called as a witness for plaintiff, plaintiff's attorney advised Howell to the same effect, namely: "Q. (Mr. O'DONNELL): Mr. Howell, don't you know that as a result of your withdrawing your answer that under the law you admit the truth of every allegation set forth in the petition?" The fact that Howell answered both the court and plaintiff's attorney in the affirmative merely demonstrated that he knew the effect of his act in withdrawing his answer and cannot be construed as a positive act of confessing judgment.
As the amount of the damages sued for was unliquidated the default constituted no admission of the allegation of the amount under such circumstances though the other allegations of fact as to the right of relief were admitted by the default. The amount of damages became a matter of proof. [Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 41, 139 S.W. 104; Shannon v. Del-Home Light Co. (Mo. App.), 43 S.W.2d 872.] Plaintiff proceeded on this understanding in the trial below as evidenced by the statement of plaintiff's attorney to the court as follows:
"Mr. O'DONNELL: I want to make this suggestion, as I understand the law, and the way the court has ruled this defendant Howell has, by the withdrawal of the answer left an issue in the case as to the amount of plaintiff's damages. That issue has still to be tried, and he has admitted the allegations of the petition, and I don't know of any way that we can tell the jury how he had admitted it except by putting in the petition."
It was not necessary that an interlocutory judgment be first entered, [Cornoyer v. Oppermann Drug Co. (Mo. App.), 56 S.W.2d 612.]
The fact that Howell defaulted at the direction or for the benefit of the company does not relieve plaintiff from proving her case against the company, as any defendant at any time may withdraw his defense. [Boatmen's Savings Institution v. Forbes, 52 Mo. 201.] Nor does the default of one defendant, although an admission by him of the allegations of the petition, operate as an admission of such allegation as against a contesting codefendant. [Gloss v. Swanson, 227 Ill. 179.] This is also true, even where one codefendant confesses judgment. [Burr Co. v. Mathers Co., 51 Mo. App. 470.]
Our ruling above that Howell's action and statements constituted merely a default disposes of the contention of plaintiff that Howell's statement was an admission against interest and binding on the codefendant company. However if Howell's statements could be construed to be an admission against interest the cases relied on by plaintiff do not support her contention as they are based on facts where the entire interest of the codefendants is joint only. In this case judgment was possible against Howell alone, or, under the rule of respondeat superior jointly against both Howell and the defendant company. The rule as to the effect of an admission against interest by one codefendant is that where the common interest of the codefendants extends not only to the entire recovery but covers the entire ground of liability and the codefendants if liable at all are liable jointly, then an admission against interest by one is binding on the others. [Adair v. Kansas City Terminal Ry., 282 Mo. 133, 220 S.W. 920.] But where the interest or liability may be separate, then the admission of one is not binding against another. [See City of St. Louis ex rel. v. Clark (Mo. App.), 35 S.W.2d 986; Steckel v. Swift Co. (Mo. App.), 56 S.W.2d 806; 22 C.J., secs 402 and 405.]
Plaintiff also contends that the court erred in refusing her peremptory instruction on the additional ground that the printed rules setting out the duties of the company's filling station attendants established as a matter of law that Howell was acting within the scope of his employment in helping push Stinnett's truck from the filling station premises onto and over the highway. These rules, after setting out the duties of the attendant pertaining to the care of the physical properties of the station, stress the service to be rendered by the attendant to customers. Plaintiff relies in the main, on the portion of the rules which we have italicized:
"Be polite, prompt, accurate and attentive. Try to learn the names of customers and use them in your conversation with them. When you are not actually busy waiting on customers, help the lady or gentleman fill his radiator with water, or put air in their tires. In fact, render them any service that you possibly can. . . .
"Never fail to greet a customer with a smile or to thank him after the transaction is finished. Treat your customer equally as you would a welcome guest who comes to your home. Learn all you can about the different makes of automobiles so that you can discuss them intelligently, thus gaining the confidence of those whom you serve. . . ."
Plaintiff adduced testimony from former employees of the company that additional rules promulgated orally had been given the attendants under which the attendants were to use their own judgment in rendering emergency road service to customers. Defendant's testimony was to the effect that the attendants were to perform only the usual acts in servicing an automobile and were instructed not to leave the premises of the station while on duty. The printed rules do not sustain plaintiff's contention. The issue was properly submitted to the jury to determine whether or not under all the evidence Howell was acting within the scope of his duties.
Furthermore, plaintiff has waived her objection to the action of the court in refusing to give her peremptory instruction by later requesting and receiving instruction on the merits of her case. [Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307; John Deere Plow Co. v. Cooper (Mo. App.), 91 S.W.2d 145.]
Plaintiff complains of Instruction G given at the request of the defendant as follows:
"The court instructs the jury that even though you may find and believe from the evidence that there was no lighted rear lamp on the Stinnett truck at the time and place in question, yet you are further instructed that the driver of a motor vehicle is charged with knowledge of what he would have seen if he had looked, and if you further find and believe from the evidence that either by the illumination from the headlights of the car in which plaintiff was riding, or other lights at the intersection of Van Horn Road and Hardy Avenue, the Stinnett truck was visible to the driver of the car in which plaintiff was riding in time for him by the exercise of the highest degree of care to have avoided said truck by steering or swerving aside or stopping, and if you find that the driver of plaintiff's car, if the Stinnett truck was visible to him, drove into said Stinnett truck, then you are instructed that the absence of a lighted rear lamp upon the Stinnett truck, if you so find, was not the proximate cause of the collision, then your verdict must be for the defendant National Refining Company."
This instruction does not state the law applicable to this case. The effect of this instruction is that the plaintiff cannot recover if the negligence of the driver of the car in which plaintiff was riding was the proximate cause of the collision, regardless of any concurring negligence of the company in pushing the unlighted truck on the highway as shown in plaintiff's evidence. The rule is too well established to require discussion that the negligence of the driver of an automobile without more cannot be imputed to the guest. [Thompson v. St. L.-S.F. Ry. Co., 334 Mo. 958, 69 S.W.2d 936.] Even if the driver was negligent the company is also liable if it is guilty of negligence which was a contributing or concurring cause of the collision. To constitute a negligent act the proximate cause of the injury, it need not necessarily be the sole cause, but it is sufficient if it is a concurring cause. Where several causes concur to produce an injury, either cause may be termed a proximate cause if it is an efficient cause of injury. [King v. Rieth, 341 Mo. 467, 108 S.W.2d 1; Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 239 S.W. 827; Godfrey v. Payne (Mo. App.), 251 S.W. 133.]
Furthermore, that part of the instruction "then you are instructed that the absence of a lighted rear lamp upon the Stinnett truck, if you so find, was not the proximate cause of the collision," is also error. Whether the absence of the lights on the Stinnett truck was or was not a contributing proximate cause, under the facts of this case should have been left to the finding of the jury. [Roper v. Greenspon, 272 Mo. 888, 198 S.W. 1107; Ridenhour v. Oklahoma Contracting Co. (Mo. App.), 45 S.W.2d 108.] The giving of this instruction was prejudicial error on account of which this case must be reversed and remanded.
In the event that Instruction E on the contributory negligence of plaintiff given at the request of the company might be offered on retrial we should point out that it is also error. In Thompson v. St. L.-S.F. Ry. Co., supra, this court said:
"The jury should not be instructed that a guest riding in an automobile approaching a railroad crossing is required to use care and vigilance to discover an approaching train in order to warn the driver of the danger and is guilty of contributory negligence if such guest could by reasonable care have discovered the danger and warned the driver thereof, but failed to do so. It was for the jury to say whether plaintiff did in this respect what a reasonably prudent person would have done under the same or similar circumstances." [See Smith v. St. L.-S.F. Ry. Co., 321 Mo. 105, 9 S.W.2d 939.]
The other matters claimed as error should not occur upon the retrial, so that we shall not discuss them.
In order to prove her injuries the plaintiff called three doctors as witnesses in her behalf, who testified that as a result of the accident she sustained and was at the time of the trial suffering from an injury to the right sacroiliac joint and limitation of motion of the right leg. Immediately after the accident she was found to be suffering from a laceration of the scalp, a bruised knee and a seriously sprained ankle. Since the time of the accident, she has complained of backaches and the testimony of her physician was that such pain would continue intermittently.
We are of the opinion that Howell having admitted liability by his default, discussion is unnecessary in holding that the verdict against him assessing plaintiff's damages at $1 should be set aside as it clearly indicates misconduct on the part of the jury. This court has held that there should be no distinction between cases where the jury returns a verdict for nominal damages and those in which the jury awards substantial, though inadequate damages. [Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618.]
The judgment against Howell is reversed and the cause remanded for new trial against him on the matter of assessment of the plaintiff's damages only, the verdict finding him liable to remain in force. The judgment against the defendant company is reversed and the cause remanded for new trial. All the judges concur.