Opinion
Opinion filed October 8, 1929.
1. — Death by Wrongful Act — Measure of Damages — Penalty — Pecuniary Loss — Jury — Discretion — New Trial. While section 4217, Revised Statutes 1919, establishes the authority in and makes it the duty of the jury to render a verdict in effect fixing a penalty which they in their discretion may deem fit and proper in light of any circumstances which either tend to mitigate or aggravate the penalty, including the pecuniary injury to the party affected, yet such discretion is not to be an unbridled or arbitrary one but a legal, sound, and honest discretion, and any abuse of such discretion is subject to correction by the court on motion to set aside the verdict and grant a new trial.
2. — Appellate Practice — New Trial — Granted by Trial Court — Discretion — Review. The function or duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial court, and, unless it is manifest and apparent that this judicial discretion has been abused or injustice has been done, its ruling in that regard will not be disturbed by an appellate court.
3. — New Trial — Death by Wrongful Act — Excessive Verdict — Remittitur — Refusal to Confess — Discretion of Trial Court to Grant New Trial. In an action by an only surviving dependent sister, administratrix of the estate of deceased, plaintiff's younger sister, aged from sixty-two to sixty-eight years and not survived by either father or mother, to recover the penalty provided by section 4217, Revised Statutes 1919, for causing the death of said deceased, alleged to have been due to the negligence of defendant, where the trial resulted in a verdict in favor of plaintiff for $7000, and the trial court on considering defendant's motion for a new trial ordered plaintiff to confess a remittitur of $2000, which plaintiff refused, and upon such refusal the court sustained defendant's motion for a new trial on the sole ground that the verdict was excessive, held, in view of the record, the trial court did not abuse its judicial discretion in requiring a remittitur of $2000, and, upon plaintiff refusing to make such a remittitur, to grant defendant a new trial.
Appeal from the Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.
AFFIRMED.
Erwin F. Vetter and Joseph A. Falzone for appellant.
(1) Section 4217, Revised Statutes 1919, provides that the defendant shall forfeit and pay as a penalty the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury. Section 4217, Revised Statutes 1919. (2) Statute to be liberally construed with a view toward advancing the remedy. Amount of verdict in discretion of the jury. Grier v. Railway Co., 286 Mo. 523; Burge v. Railroad, 244 Mo. 76; Ellis v. Metropolitan Street Ry., 234 Mo. 657; Young v. Railroad, 227 Mo. 307; Gilkeson v. Railroad, 222 Mo. 173; Boyd v. Railroad, 236 Mo. 54; Potter v. Railroad, 136 Mo. App. 125; Casey v. Transit Co., 116 Mo. App. 235, approved 205 Mo. 721; King v. Mo. Pac. Ry. Co., 98 Mo. 235; Philpott v. Mo. Pac. Ry. Co., 85 Mo. 164; Section 7048, Revised Statutes 1919. (3) Recovery under section 4217, a penalty, pecuniary damages cannot be considered. Pedigo v. St. L. S.F. Ry. Co., 299 S.W. 110; Lackey v. United Railways Co., 288 Mo. 120; Treadway v. United Railways Co., 300 Mo. 176; Grier v. Railway Co., 286 Mo. 523; Bloomchamp v. Mo. Pac. R.R. Co., 208 Mo. App. 464; Casey v. Transit Co., 116 Mo. App. 235; approved 205 Mo. 721. (4) The statute leaves the amount of the verdict to the discretion of the jury and not to the discretion of the court. The verdict of the jury cannot be disturbed, absent any untoward matter reasonably inciting judicial complaint. Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657; Harper v. Railroad, 186 Mo. App. 296; Childress v. Railroad, 141 Mo. App. 667. (5) Power vests in the Legislature alone to prescribe the penalty within fixed limits, within the discretion of the jury, and an interference by the judicial department is in violation of Article 3 of the Constitution of Missouri. State v. Preslar, 300 S.W. 687; State v. Alexander, 285 S.W. 984; Lueders v. Railroad, 253 Mo. 97; Young v. Railroad, 227 Mo. 307; Clark v. Railroad, 219 Mo. 524. (6) Verdict not excessive. Treadway v. United Railways Co., 300 Mo. 176; Rowie v. C.B. Q.R.R. Co., 274 S.W. 1031, 1039; Grier v. Railway Co., 286 Mo. 523; Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657.
T.E. Francis and Vance J. Higgs for respondent.
(1) The contention of appellant that, under the provisions of section 4217 of Revised Statutes 1919, the amount of the verdict is left solely to the discretion of the jury, cannot be sustained, for the reason that such a holding would have the effect of depriving respondent of the right of trial by jury, which is guaranteed to him by section 28 of article 2 of the Constitution of Missouri, which provides, "The right of trial by jury, as heretofore enjoyed, shall remain inviolate." The right of trial by jury, in the primary and usual sense of the term, both at common law and under our statute, is not merely a trial by a jury of twelve men, before a court vested with authority to cause the jury to be summoned, sworn and empaneled, and to receive and enter their verdict, but it means far more than this. There must be a judge, empowered to instruct them in the law, who can in all cases (except on acquittal of a criminal charge) set aside the verdict of the jury if, in the court's opinion, it is against the law or against the weight of the evidence. Capitol Traction Co. v. Hof. 174 U.S. 1, 13, 14; McKeon v. Central Stamping Co., 264 F. 385; Hughey v. Sullivan, 80 F. 72; Chitty v. Railway Co., 148 Mo. 64, 49 S.W. 871, 872; State ex rel. Atchison, T. S.F. Ry. Co. v. Ellison et al., Judges, 268 Mo. 225, 186 S.W. 1075. (2) In passing section 4217, R.S. 1919, the Legislature did not intend to deprive the trial court of any inherent or constitutional power that it had, but sought merely to create a right of recovery not existing under the common law. The phrase "in the discretion of the jury" takes nothing from a court, nor does it add one iota of power to a jury, because without this phrase in the act the penalty to be inflicted would still be "in the discretion of the jury." McCarty v. St. Louis Transit Co., 192 Mo. 396, 91 S.W. 132; State ex rel. Railway Co. v. Ellison et al., Judges, 268 Mo. 225, 186 S.W. 1075; Montgomery Light, Water Power Co. v. Tombs, 204 Ala. 678, 87 So. 205; Cox v. Birmingham Railway, Light Power Co., 163 Ala. 170, 50 So. 975. (3) The trial court did not err in sustaining respondent's motion for new trial. The record disclosed ample evidence to support the trial court's ruling. State ex rel. Railway Co. v. Ellison et al., Judges, 268 Mo. 225, 186 S.W. 1075; Grier v. Railways Co., 286 Mo. 523, 228 S.W. 454; Treadway v. Railways Co., 253 S.W. 1037, 300 Mo. 156; McCarty v. St. Louis Transit Co., 192 Mo. 396, 91 S.W. 132. (4) Plaintiff's instruction No. 5 was erroneous in that it permitted the jury to consider "aggravating circumstances" when no such circumstances were shown by the evidence. Gibler v. Terminal R.R. Ass'n, 203 Mo. 208, 101 S.W. 37; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; McNeill v. City of Cape Girardeau, 134 S.W. 582, 153 Mo. App. 424, and opinion adopted by St. Louis Ct. of App. in 140 S.W. 1196; Field v. Metropolitan Street Railway, 137 S.W. 1000, 156 Mo. App. 646. (5) It is well settled as the law of Missouri that although the reasons of the trial court for granting a new trial are insufficient or erroneous, the order will be sustained if any valid ground appears in the record and was properly preserved. Gaty v. United Railways Co., 286 Mo. 503, 227 S.W. 1041; Thurman v. Wells, 251 S.W. 75; Gass v. United Railways Co., 232 S.W. 160; Heeter v. Boorum, etc., 237 S.W. 902.
This is a suit instituted by Ella L. Gaston, administratrix of the estate of Ida E. Foreman, deceased, to recover the penalty provided by section 4217, Revised Statute of Missouri 1919, for causing the death of said Ida E. Foreman, plaintiff's younger sister, alleged to have been caused by the negligence of the defendant.
The trial resulted in a verdict in favor of plaintiff for $7000. The defendant filed its motion for a new trial and the court thereupon ordered plaintiff to confess a remittitur in the sum of $2000, and plaintiff refusing to confess such remittitur the court sustained defendant's motion for a new trial on the sole ground that the verdict was excessive. Plaintiff in due course appeals.
Plaintiff's petition alleges, and the proof adduced at the trial in support thereof, tended to prove that on the 17th day of December, 1927, Ida E. Foreman was a passenger on a Delmar-Olive street car owned and operated by defendant, and that due to the negligence of the defendant she was violently thrown against the seats and onto the floor of the street car and seriously injured, and that she died as the direct result of such injuries. The deceased was single and unmarried, aged from sixty-two to sixty-eight years, and is not survived by either father or mother. Plaintiff, who is a widow and has no children, is an only (aged) surviving sister of the deceased and apparently was entirely dependent upon the deceased for a livelihood.
On this appeal it is urged on behalf of plaintiff below that the trial court erred in ordering plaintiff to make a remittitur and upon the default thereof granting defendant a new trial, in that under section 4217, Revised Statute of Missouri 1919, the Legislature has left the amount of the verdict to the sole discretion of the jury between the limitations prescribed therein, and by the very language of the statute itself the Legislature forewarned the court not to interfere with the discretion of the jury or to attempt to limit their findings.
It is no longer open to controversy that the entire recovery provided for under this statute, whether it be the minimum of $2000 or the maximum of $10,000, or an intermediate sum in the discretion of the jury, is primarily intended as punishment for causing death by negligence, unskillfulness or criminal intent, whatever incidental or secondary purpose it might at the same time subserve, and it has repeatedly been held that the Legislature intended that the entire forfeiture provided by the statute as amended is to be enforced in all cases as a punishment, and that the amount thereof is not to be limited or controlled by the rules of law that govern the laws of compensatory damages. In the case of Grier v. Kas. City, C.C. St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454, it has been directly held that the jury may take into consideration the circumstances attending the negligent or wrongful act causing death, and also the extent of the pecuniary loss, if any, in fixing the amount of the recovery although the entire recovery is essentially and primarily penal. And on the question of the phrase "in the discretion of the jury," it was there held that "the exercise of discretion implies a knowledge of the facts upon which the discretion may properly operate."
And the more recent case of Ward v. Mo. Pac. Ry. Co., 311 Mo. 92, 277 S.W. 908 (an opinion In Banc) reaffirms the view expressed in the Grier case in elucidating the range of facts to be considered by the jury in awarding damages under the penalty statute (Sec. 4217) and again specifically holds that evidence of the circumstances which would mitigate or aggravate the penalty, including the pecuniary injury to the party affected, is admissible for the purpose of fixing the amount of the verdict or penalty, and are to be considered by the jury for that purpose.
Section 4217 establishes the authority in and makes it the duty of the jury to render a verdict in effect fixing a penalty which they in their discretion may deem fit and proper in light of any circumstances which either tend to mitigate or aggravate the penalty, including the pecuniary injury to the party affected. It is readily apparent therefore that such discretion is not to be an unbridled or arbitrary one but a legal, sound and honest discretion and that any abuse of such discretion is subject to correction by the court on motion to set aside the verdict and grant a new trial.
In this latter view we are supported by the action of the Supreme Court in the Grier case, supra, in which case the court considered and ruled adversely an assignment of error to the effect that there was an abuse of discretion on the part of the jury in assessing the penalty at the maximum provided under the statute.
It is trite doctrine that the function or duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial court and unless it is manifest and apparent that this judicial discretion has been abused or injustice has been done, its ruling in that regard will not be disturbed by an appellate court. [Farrell v. St. Louis Transit Co., 103 Mo. App. 454, 78 S.W. 312, and cases cited.]
The record discloses that Ida E. Foreman at the time she met with her injuries was a passenger on one of the defendant's street cars, and that as she was in the act of taking a seat the car lurched forward and threw her between the seats to the floor of the car causing her injuries which caused her death some fifty-five hours thereafter. The coroner's autopsy disclosed that the deceased had numerous bruises and discolorations, severe bruises on her right temple and five fractured ribs, one of which had punctured her lung. Despite her injuries Miss Foreman continued on the car to the end of the line where defendant's employees, upon finding her slumped in a seat in the rear of the car, assisted her to board a car of another division on which she rode to her destination. She was assisted to her home by a neighbor.
The only testimony as to the age of the deceased is that of the doctors who attended her, who testified she was apparently between sixty-two and sixty-eight years of age.
Ella L. Gaston, the administratrix, is an older sister and the sole beneficiary of the estate of the deceased. While it appears that Ella Gaston was dependent upon the deceased for her support, there is no testimony as to her (Ella Gaston) age nor as to the salary earned by the deceased during her lifetime, nor what amounts she contributed to her said sister.
In this state of the record we are unable to rule that the trial court abused its judicial discretion in requiring a remittitur of $2000, and upon plaintiff refusing to make such a remittitur to grant defendant a new trial. It follows that the judgment should be affirmed. It is so ordered. Haid, P.J., and Nipper, J., concur.
REPORTER'S NOTE: — Writ of certiorari in the foregoing case was denied by Supreme Court, December 30, 1929.