Jonesv.Pennsylvania Railroad Co.

Supreme Court of Missouri, Division OneSep 5, 1944
353 Mo. 163 (Mo. 1944)
353 Mo. 163182 S.W.2d 157

No. 38998.

July 3, 1944. Rehearing Denied, September 5, 1944.

1. CONSTITUTIONAL LAW: Trial: Federal Employers' Liability Act: Right of Trial by Jury. A plaintiff in an action under the Federal Employers' Liability Act may not be subjected to discriminatory action, but is entitled to an award based on the proper exercise of discretion by the jury.

2. NEW TRIAL: Limitation to One New Trial: Exceptions. Only one new trial may be allowed, except for errors of law or misbehavior of the jury.

3. DAMAGES: New Trial: Excessive Verdict: Power to Correct. Both trial and appellate courts have the power to reduce excessive jury verdicts.

4. NEW TRIAL: Damages: Grossly Excessive Verdict: Right of Trial Court to Infer Bias and Prejudice. There is a distinction between a verdict which is merely excessive and one which is so grossly excessive as to indicate bias and prejudice. The trial court may infer bias and prejudice from the size of the verdict alone.

5. NEW TRIAL: Juries: Excessive Verdict as Jury Misconduct. A verdict so grossly excessive as to indicate bias and prejudice savors of misbehavior by the jury, which may have been actuated by bias and prejudice in their finding upon the issue of liability.

6. NEW TRIAL: Damages: Verdict Grossly Excessive: New Trial Sustained. While plaintiff's injuries were grave, permanent and painful, and surgical and medical treatment and the services of an attendant may be required for the remainder of his life, yet the verdict of $203,167 was so far in excess of comparable verdicts that the action of the trial court in granting a new trial on the ground of bias and prejudice on the part of the jury will not be disturbed on appeal.

Appeal from Circuit Court of City of St. Louis. — Hon. William K. Koerner, Judge.

AFFIRMED.

Charles P. Noell for appellant; Douglas H. Jones of counsel.

(1) Plaintiff is deprived of federal and state constitutional rights by action of trial court in twice setting aside a jury verdict rendered under the Federal Employers' Liability Act, on ground that such verdict was excessive. Such action deprived plaintiff of a right of trial by jury, and deprived him of property without due process of law, and denied him equal protection of law, and denied him his certain and speedy remedy in courts of justice. Federal Employers' Liability Act, U.S.C. (1934 Ed.), Title 45, Secs. 51-59; Federal Safety Appliance Act, U.S.C. (1934 Ed.), Title 45, Secs. 1-16; Sec. VI, Federal Employers' Liability Act, U.S.C. (1934 Ed.), Title 45, Sec. 56; Federal Employers' Liability Act, Act of Apr. 22, 1908, c. 149, 35 Stat. 65, as amended by Act of Apr. 5, 1910, c. 143, 36 Stat. 291, U.S.C. (1934 Ed.), Title 45, Secs. 51-59; Federal Safety Appliance Act, Act of Mar. 2, 1893, c. 196, 29 Stat. 531, as amended by Act of Mar. 2, 1903, c. 976, 32 Stat. 943, and Act of Apr. 14, 1910, c. 160, 35 Stat. 65, 298, U.S.C. (1934 Ed.), Title 45, Secs. 1-16; Art. VI, Const. of U.S., clause 2; Amend. VII, Const. of U.S.; Amend. XIV, Sec. 1, Const. of U.S.; Secs. 10, 28, 30, Art. II, Const. of Mo. (2) The right of trial by jury must be preserved. Skrivner v. American Car Foundry Co., 50 S.W.2d 1001. (3) Interpretation of state statutes must be uniform whether plaintiff's rights arise under a federal act or a state statute. Action of court in discriminating against plaintiff because his rights arise under the Federal Act, and applying a different rule than under state cases, is discriminatory and unconstitutional. Brady v. Southern Ry. Co., 64 S.Ct. 232; Rockwood v. Crown Laundry Co., 178 S.W.2d 440; Minnesota, etc., R. Co. v. Bombolis, 241 U.S. 211; St. Louis, etc., R. Co. v. Brown, 241 U.S. 223; Chesapeake, etc., R. Co. v. Carnahan, 241 U.S. 241; Louisville, etc., R. Co. v. Stewart, 241 U.S. 261; Chesapeake, etc., R. Co. v. Kelly, 241 U.S. 485; Chesapeake, etc., R. Co. v. Gainey, 241 U.S. 494; Bayliss v. Travelers' Ins. Co., 113 U.S. 320. (4) Improper setting aside of jury verdict is denial of constitutional right of trial by jury. Hughey v. Sullivan, 80 F. 76; Bayliss v. Travelers' Ins. Co., 113 U.S. 320; Arkansas Valley Land, etc., Co. v. Mann, 130 U.S. 72. (5) State statutes denying court power to set aside jury verdict more than once on weight of evidence are constitutional and must be followed. L. N.R. Co. v. Woodson, 134 U.S. 623, 33 L.Ed. 1032. (6) To compel plaintiff to repeatedly retry his case, because a trial judge disagrees with twenty-four jurors as to amount of damages, denies him a sure and speedy remedy in courts of justice. State ex rel. v. Remmers, 340 Mo. 126, 101 S.W.2d 70; State ex rel. v. Seehorn, 127 S.W.2d 418; White v. Delano, 270 Mo. 16, 191 S.W. 1012; State ex rel. v. Johnson, 266 Mo. 662, 182 S.W. 969. (7) Such action deprives him of due process under the State Constitution. Meierhoffer v. Hansel, 294 Mo. 195, 243 S.W. 131; Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 161 S.W. 261. (8) Missouri statutes prohibit the trial court from granting two new trials as against the weight of evidence. The court's action in granting a second new trial to defendant on the ground that the verdict was excessive was null and void and the judgment must be reversed. Sec. 1169, R.S. 1939. (9) The statute is constitutional and must be followed. Gately v. St. Louis-S.F.R. Co., 332 Mo. 1, 56 S.W.2d 54; State ex rel. Albers v. Horner, 86 Mo. 17; Boyce's Admr. v. Smith's Admr., 16 Mo. 317. (10) A grant of a new trial on ground of excessiveness is same as against weight of evidence. Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906. (11) The statute has been enforced in all state cases. Hill v. Wilkins, 4 Mo. 86; Kreis v. Mo. Pac. Ry. Co., 33 S.W. 1150, 131 Mo. 533; McFarland v. United States Mut. Acc. Assn. of City of New York, 27 S.W. 436, 124 Mo. 204; King v. Mann, 286 S.W. 100, 315 Mo. 318, affirming 235 S.W. 506, 208 Mo. App. 642; Clarkson v. Garvey, 161 S.W. 664, 179 Mo. App. 9; Reissman v. Wells, 258 S.W. 43; Karnes v. Winn, 126 Mo. App. 712, 105 S.W. 1098; Stegner v. M.-K.-T.R. Co., 333 Mo. 1182, 64 S.W.2d 691; Hunt v. Gillerman, 39 S.W.2d 369, 327 Mo. 887; Herbert v. Hawley, 32 166 S.W.2d 1095; Lawson v. East St. Louis Ry. Co., 76 S.W.2d 454; Jones v. Reilener, 67 S.W.2d 813; Hanheide v. Supreme Tribe of Ben Hur, 223 S.W. 684, l.c. 688; Boyce's Admr. v. Smith's Admr., 16 Mo. 317; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Van Loon v. St. Joseph L. P. Co., 271 Mo. 209, 195 S.W. 737; Troll v. Protected Home Circle, 161 Mo. App. 719, 141 S.W. 916; McFarland v. U.S. Mut. Accident Assn., 124 Mo. 204, 27 S.W. 436. (12) An award of $203,167 for boy of 19, with forty-six years expectancy, for loss of leg, fractures of back, both hip sockets crushed and other terrible injuries, rendering plaintiff a total, permanent, helpless cripple, with loss of earnings of $3000 per year and with necessary expenses of $10,000 per year, is not excessive. In cases arising under the Federal Liability Act, federal decisions control. Mooney v. Terminal Railroad Assn., 176 S.W.2d 605; Sheehan v. Terminal Railroad Assn., 336 Mo. 709, 127 S.W.2d 657. (13) Present value of future loss is measure of damages. Gulf, C. S.F. Ry. Co. v. Moser, 275 U.S. 133, 48 S.Ct. 49; Mattan v. Hoover, 166 S.W.2d 557; West v. Kurn, 148 S.W.2d 752; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Sheehan v. Terminal, 127 S.W.2d 657; Kentucky Co. v. Wells, 149 Ky. 275, 148 S.W. 375. (14) Alleged excessiveness of verdict in an action under the Federal Employers' Liability Act is not for the consideration of either the trial court or the appellate court, but is a matter exclusively for the jury. Stott v. Thompson, 294 Ill. App. 450, 14 N.E.2d 246, certiorari denied 305 U.S. 639, 59 S.Ct. 106, 83 L.Ed. 411; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721. (15) Defendant's cases not applicable. Span v. Jackson Mining Co., 322 Mo. 158, 16 S.W.2d 190; Rose v. Mo. District Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 S.W.2d 363, certiorari denied 305 U.S. 655, 59 S.Ct. 251; Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616. (16) Prior decisions are merely advisory and not controlling on the question of excessive or inadequate damages in injury cases. Willis v. A., T. S.F. Ry. Co., 178 S.W.2d 341; Colwell v. St. Louis S.F. Ry. Co., 335 Mo. 494, 73 S.W.2d 222; Lynch v. Baldwin, 117 S.W.2d 273; Harrison v. St. Louis S.F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W.2d 736. (17) Jury's verdict should not be disturbed. Orr v. Shell Oil Co., 177 S.W.2d 608; Webb v. M.-K.-T.R. Co., 116 S.W.2d 27; Grott v. Johnson-Stephens-Shinkle Shoe Co., 2 S.W.2d 785; Evans v. General Explosive Co., 293 Mo. 364, 239 S.W. 487; Schaefer v. Transamerican Freight Lines, 173 S.W.2d 20; Yakubinis v. M.K.-T.R. Co., 345 Mo. 943, 137 S.W.2d 504; Hoelzel v. Chicago, R.I. P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Harlan v. Wabash Ry. Co., 335 Mo. 414, 73 S.W.2d 749; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903. (18) Purchasing power of money must be considered. Hurst v. C., B. Q.R. Co., 280 Mo. 566, 219 S.W. 566. (19) Substantial verdicts upheld in other states. McDonald v. Standard Gas Engine Co., 47 P.2d 777; Lindemann v. San Joaquin Cotton Oil Co., 43 P. 836; T.C. O. v. Miller, 108 Ohio St. 388, 140 N.E. 617; Rozenzweig v. Hines, 285 F. 622; Meng v. Emigrant Saving Bank, 169 A.D. 27, 154 N.Y.S. 509; Beaumont S. L.R. Co. v. Sterling, 260 S.W. 320.

Fordyce, White, Mayne, Williams Hartman, E.C. Hartman and F.W. Schwarz for respondent.

(1) The ground stated by the trial court for sustaining defendant's motion for a new trial was misbehavior on the part of the jury within the meaning of Section 1169, R.S. 1939; this being a matter within the wide discretion of the trial court, the appellate court, in the absence of clear abuse on the part of the trial court, should not interfere with such ruling. Stetzler v. Railway Co., 210 Mo. 704, 109 S.W. 666; Tatlow v. Grantham, 66 Mo. App. 509; Spelky v. Kissel-Skiles, 54 S.W.2d 761. (2) The presumption obtains that the trial court followed the law and acted rightly and did not violate Section 1169, R.S. 1939, in granting a second trial. King v. Mann, 315 Mo. 318, 286 S.W. 100; Oliver v. St. Louis-S.F. Ry. Co., 211 S.W. 699. (3) The trial court ruled that the verdict of the jury was the result of passion, prejudice and sympathy. In a Federal Employers' Liability case, such a verdict cannot be cured by remittitur but a new trial must be ordered. Minneapolis, St. Paul Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 75 Law Ed. 1243. (4) And this rule applies even when the jurisprudence of the State does not entitle defendant to a new trial, as, for instance, the provisions of Section 1169, R.S. 1939, notwithstanding. (5) The defendant was entitled to a new trial on ground number twenty in its motion for a new trial, namely, because the court committed prejudicial error against defendant in permitting plaintiff to be disrobed and exhibiting plaintiff's injuries and making a demonstration thereof before the jury. Wagner v. Chicago, R.I. P. Ry. Co., 277 Ill. 114, 115 N.E. 201; Turnbow v. Kansas City Rys. Co., 277 Mo. 644, 211 S.W. 41; Meeker v. Union Electric L. P. Co., 216 S.W. 933; Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70; 32 C.J. Sec., p. 461, sec. 610. (6) The verdict is grossly excessive and indicates passion, prejudice and sympathy on the part of the jury. Taylor v. Mo. Pac. R. Co., 311 Mo. 604, 279 S.W. 115; Bond v. St. Louis S.F. Ry. Co., 315 Mo. 987, 288 S.W. 777; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 168 S.W.2d 363; Morris v. E.I. DuPont de Nemours Co., 346 Mo. 126, 139 S.W.2d 984; West v. Kurn, 148 S.W.2d 752. (7) Under the emergency of war and the existing extraordinary economic conditions, plaintiff's employment with defendant could not reasonably be considered as permanent; under the conditions prevailing it was temporary and would last at the longest only for the duration; the court takes judicial notice of general economic conditions. Saxbury v. Coons, 98 S.W.2d 662; State ex rel. St. Paul Kansas City Short Line R. Co. v. Public Serv. Comm., 339 Mo. 641, 98 S.W.2d 699; Jennings v. St. Louis, 332 Mo. 173, 58 S.W.2d 979; In re Hagerstrown Silk Co., 69 F.2d 790; 20 Am. Jur., p. 127, sec. 120. (8) At end of war, defendant is required by law to give all of its employees who were called in the armed forces their old jobs at same pay and same seniority. 50 U.S.C.A., sec. 308 (Selective Training and Service Act 1940). (9) A verdict must be considered unreasonable if it is too far above the amount of the present worth of future loss of earnings according to the statutory tables, Section 3522, R.S. 1939. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; West v. Kurn, 148 S.W.2d 752. (10) Plaintiff, being in an extremely hazardous employment, his life expectancy cannot validly be considered as great as the average life duration determined from a group who had collectively engaged in all occupations. Midwest Natl. Bank v. Davis, 288 Mo. 536, 233 S.W. 406; Frese v. Wells, 40 S.W.2d 652; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Pulliam v. Wheelock, 319 Mo. 139, 3 S.W.2d 374. (11) When the facts as to the injuries inflicted and losses sustained are similar, though never identical, there should be a reasonable uniformity as to the amount of verdicts; precedents should be consulted whenever the question is presented. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Murphy v. Wolferman, 347 Mo. 634, 148 S.W.2d 481; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616. (12) In measuring the present worth of the future loss of earnings, use of Missouri statutes, Section 3522, R.S. 1939, is proper. Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721. (13) The law recognizes that in certain cases no sum of money can fully compensate a plaintiff for injuries sustained; in this situation the question must be determined by precedent. Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616; Morris v. E.I. DuPont de Nemours Co., 346 Mo. 126, 139 S.W.2d 984; Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 S.W.2d 363; Taylor v. Mo. Pac. Railroad Co., 311 Mo. 604, 279 S.W. 115. (14) The highest amount which this court has approved as damages for personal injuries is $50,000. Span v. Mining Co., 322 Mo. 158, 16 S.W.2d 190. (15) Although no resort to outside cases is necessary, there is here listed the cases in which, since 1907 to the present time, appellate courts have approved judgments in personal injury cases of $50,000 or more: $50,000, McKeon v. Delaware, L. W.R. Co., 127 A. 34; $50,000, Kirschbaum v. McCarthy, 54 P.2d 8; $50,000, Lindemann v. Cotton Oil Co., 55 P.2d 870; $50,000, Carlson v. Raisin Growers Assn., 9 P.2d 546; $50,000, Budek v. City of Chicago, 279 Ill. App. 410; $55,000, Fried v. New York, N.H. Hartford R. Co., 130 N.E. 917; $58,800, Taylor v. Atchison, T. S.F. Ry. Co., 292 Ill. App. 457, 11 N.E.2d 610; $60,000, Goldberg v. Capital Freight Lines, 314 Ill. App. 347, 41 N.E.2d 302; $60,000, Gourley v. Chicago E.I. Ry. Co., 295 Ill. App. 160, 14 N.E.2d 842; $60,000, Ward v. Iroquois Gas Corp., 233 A.D. 127, 251 N.Y.S. 300; $62,000, Zamecnik v. Royal Transit, Inc., 239 Wis. 175, 300 N.W. 227; $72,000, Grinnel v. Carbide Carbon Chem. Co., 282 Mich. 509, 276 N.W. 535; $75,000, Princell v. Greyhound Lines, 262 Ill. App. 298; $75,000, Toledo, C. O.R. Co. v. Miller, 140 N.E. 617; $76,000, Fulton v. County Farmers Co., 37 P.2d 1025; $100,000, O'Connell v. Westinghouse X-Ray Co., 116 N.Y.S. 54; $100,000, Advance v. Thompson, 320 Ill. App. 406, 51 N.E.2d 334 (pending further on appeal); $100,000, McDonald v. Standard Gas Engine Co., 47 P.2d 777. (16) A state appellate court, in a Federal Employers' Liability case, has the right to require a remittitur if it deems the verdict excessive. Union Pacific Railroad Co. v. Hadley, 246 U.S. 330, 62 L.Ed. 751. (17) This court recognizes that right. Goslin v. Kurn, 173 S.W.2d 79; Weaver v. Mobile O.R. Co., 343 Mo. 223, 120 S.W.2d 1105; Mauck v. Atchison, T. S.F. Ry. Co., 154 S.W.2d 73; West v. Kurn, 148 S.W.2d 752; Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 S.W.2d 363. (18) Where the trial court on the first trial of a case sets aside the verdict as excessive the appellate court can order a remittitur from the judgment obtained at the second trial. Taylor v. Mo. Pac. R. Co., 311 Mo. 604, 279 S.W. 115; Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 S.W.2d 363.


Action for personal injuries under the Federal Employers' Liability Act, Title 45, U.S.C.A., sec. 51 et seq., and the Federal Safety Appliance Act, Title 45, U.S.C.A., sec. 1 et seq. Plaintiff was awarded $203,167 by the unanimous [158] verdict of a jury. The trial court granted a new trial. Plaintiff has appealed.

The motion for a new trial was sustained upon the specified grounds as follows,

"12. Because the verdict is the result of passion and prejudice on the part of the jury.

"14. Because the verdict is so grossly excessive as to indicate that it was the result of passion and prejudice against the defendant on the part of the jury and the result of sympathy for the plaintiff on the part of the jury.

"15. Because the verdict is so grossly excessive as to indicate that it was the result of passion and prejudice on the part of the jury against the defendant and of favor and partiality on their part for plaintiff.

"24. Because the verdict of the jury was arrived at not in accordance with the instructions of the Court and in accordance with the laws of the State of Missouri providing for jury trials, but, on the contrary, the jury ignored the instructions of the Court and the laws of the State of Missouri and brought in a verdict which is improper and illegal." (A memorandum, filed by the trial judge in connection with the order granting the new trial, states that the verdict is contrary to Instructions 5 and 6. These instructions cautioned the jury to consider the case as if between two private citizens; and to hear the evidence and arrive at a verdict without a bias, prejudice or feeling in favor of or against either party.)

At a former trial (a different judge presiding) plaintiff had been awarded the sum of $175,000 by the unanimous verdict of a jury. The trial court set aside the verdict and granted a new trial, the plaintiff having refused to file a remittitur of $50,000. Specified grounds upon which the first new trial was granted were as follows:

"11. Because the verdict is excessive.

"14. Because the verdict is so grossly excessive as to indicate that it was the result of passion and prejudice against the defendant on the part of the jury and the result of sympathy for the plaintiff on the part of the jury.

"15. Because the verdict is so grossly excessive as to indicate that it was the result of passion and prejudice on the part of the jury against the defendant and of favor and partiality on their part for plaintiff."

Plaintiff (appellant) herein contends, (1) that he, a plaintiff under the Federal Employers' Liability Act, by the granting of the second new trial, has been denied the right of trial of his case by a jury and so has been deprived of his property without due process of law, denied equal protection of the laws and denied a certain and speedy remedy in the courts (7th and 14th Amendments to the Constitution of the United States, and Sections 10, 28 and 30, Article II, Constitution of Missouri); (2) that Section 1169, R.S. 1939, Mo. R.S.A. sec. 1169, prohibits the trial court from granting a second new trial to the same party upon the ground that the verdict is against the weight of the evidence — the trial court's action in granting a second new trial to defendant on that ground is prohibited by the statute, and the order must be reversed and the verdict reinstated — the trial court granted both new trials upon the ground that the verdicts were against the weight of the evidence, it is argued by plaintiff, because the trial court must have necessarily weighed the evidence in order to reach the conclusions that the successive verdicts were excessive; (3) and plaintiff further contends that the verdict was not excessive.

(1) and (2) It may be conceded that the plaintiff in an action under the Federal Employers' Liability Act who has availed himself of our state courts may in nowise be subjected to discriminatory action in the adjudication of his cause; and that the amount of an award of a jury for personal injuries is largely within the discretion of the jury exercised by the assessment of an award in amount within the limits of a fair and reasonable compensation as correctly defined by the instructions of the court.

In this state a trial court may, exercising sound discretion, allow one new trial only to either party, except where the triers of the fact shall have erred in a matter of law, or when the jury shall be guilty of misbehavior. Section 1169, supra.

However, courts have the power to keep awards within upper and lower limits of fair and reasonable compensation; and their action in correcting verdicts by the reduction of an excessive award had been upheld by the courts of England prior to the adoption of the Constitution of the United States (and of Missouri) and amendments thereto. Arkansas Val. Land Cattle [159] Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458; Blunt v. Little, 3 Mason 102. See also Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296. The exercise of this power is peculiarly within the sound discretion of the trial court inasmuch as that court may weigh the evidence as to the nature and extent of a plaintiff's injury and see the effect of the trial proceedings; the appellate court is reluctant to disturb the trial court's action in such exercise, unless it appears that the trial court has acted arbitrarily. Nevertheless, appellate courts have the power to and do reduce excessive verdicts. Mere excessiveness of the amount of the award is corrected in the trial court, and in this court, by remittitur, rather than by a retrial causing delay and expense. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Weaver v. Mobile O.R. Co., 343 Mo. 223, 120 S.W.2d 1105; Cole v. St. Louis-San Francisco R. Co., 332 Mo. 999, 61 S.W.2d 344; Kasperski v. Rainey (Mo. App.), 135 S.W.2d 11. But a verdict of the jury which is permitted to stand (by the trial or appellate court) as reasonably compensatory, or (if excessive) as corrected by remittitur, presupposes a verdict resultant of the jury's unbiased, dispassionate and impartial consideration of the evidence.

Without considering the effect of the trial court's order sustaining the motion for a new trial (upon the plaintiff's refusal to file a remittitur) in the former trial of the case at bar, it is plainly seen that upon the second trial, in granting the new trial, the trial court held that the verdict was so grossly excessive as to indicate that it was the result of passion and prejudice of the jury. Cases cited by plaintiff which hold that a trial court is denied the power by Section 1169, supra, to grant successive new trials upon the ground that the verdict is against the weight of the evidence are not helpful to us here.

There is a vital distinction between the specified ground, "because the verdict is excessive (or inadequate)" and the ground, "because the verdict is so grossly excessive (or inadequate) as to indicate that it was the result of bias and prejudice." The distinction is heretofore particularly noticed by this court in the case of Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d at page 129, trial courts "may pass on the weight of the evidence in considering the size of a verdict . . .; whereas appellate courts do not weigh the evidence in reviewing a law case, . . .; and in view of their better opportunity to measure the general effect of the trial proceedings on the jury, they (trial courts) may infer prejudice and bias from the size of the verdict alone, a thing which, as we have seen is held, appellate courts cannot do. In ruling the verdict in this case was so inadequate as to indicate prejudice and bias, the trial court necessarily concluded the verdict was for substantially less than it ought to have been under the evidence — in other words, it held the verdict was so much against the weight of the evidence as to show bias and prejudice. On neither of these grounds would this court be justified in interfering under the record" (our italics) of that case.

In considering each of the specified grounds the trial court may be said to have weighed the evidence, yet the reasons for sustaining the motions upon the respective grounds are essentially different. The specified ground, "because the verdict is excessive," is indicatory of no more than an honest mistake of the jury in the weighing of the evidence pertaining to the nature and extent of an injury and in assessing compensation therefor, whereas the specified ground, "because the verdict is so grossly excessive as to indicate that it was the result of bias and prejudice," savors of misbehavior on the part of the jury. A fair and impartial consideration of the evidence by the jury is vital to a verdict's incipient validity. King v. Mann, 315 Mo. 318, 286 S.W. 100; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 249; Bente v. Finley (Mo. App.), 83 S.W.2d 155; Rigby v. St. Louis Transit Co., 153 Mo. App. 330, 133 S.W. 110; Minneapolis, St. Paul Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501; Brabham, Sheriff, v. State of Mississippi, for the Use of Smith et al., 96 F.2d 210. Should the jury have been actuated by bias and prejudice in assessing the amount of the award, so may they have been actuated in their finding upon the issue of liability.

(3) We turn to a review of the evidence of the nature and extent of plaintiff's injuries.

Plaintiff, when injured, March 16, 1942, was eighteen years of age and in good physical condition. He had been employed as a brakeman by defendant since the preceding January 14th. During the time employed by defendant, the plaintiff was paid [160] the sum of $7.82 for eight hours. He was on the "extra board." Nevertheless, he had worked overtime and seven days a week for sufficient of the time that his pay aggregated $250 per month. Prior to his employment by defendant, plaintiff had been employed by a filling station operator, and received the pay of $20 per week.

Plaintiff suffered his injuries as a result of being thrown from the brake platform of a car in a train operated by defendant. The cars of the train rolled over him dragging him several hundred feet. The wheels passed over his right leg, amputating it at the lower end of the upper third of the femur; his right thumb was entirely severed. Both hip joints were dislocated. There was a comminuted fracture about the neck and head of the right femur and the socket (acetabulum) into which the head of the femur should rest is now partially absorbed and destroyed. There were multiple fractures about the upper end of the left femur, the head of which has been taken out by surgery; the socket for the joint was partially destroyed. An X-ray of the lower end of the left femur shows evidence of atrophy, and the space about the knee joint is reduced. The left femur is infected at the site of the fracture and a diseased condition known as "osteomyelitis" is present with openings, or sinuses, at the surface of the hip through which foul-smelling pus is discharging. The upper ends of both femurs are thrust upward and fixed by growth (ankylosis) to the pelvic bones. On the head of the left humerus there is evidence of injury to the attachment of the tendons thereto. There was a comminuted fracture involving the lower end of the left humerus and the upper end of the ulna (at the elbow). These two bones have united (ankylosed) and have practically fixed the joint at a right angle; plaintiff cannot extend the fingers of his left hand at the joints of the metacarpals and phalanges. The trunk of nerves called the "brachial plexus" has been injured and the nerve force to the left shoulder, arm and hand is consequently inhibited, causing an atrophy, or wasting, of those members and a clawlike contraction of the hand. There was no injury to the right arm. Slight compression fractures occurred to the sixth and eleventh thoracic spines. Plaintiff sustained deep wounds in the flesh of his back which left large sensitive scars. As stated, the right leg was not amputated surgically; the bone of the thigh has grown into and become a part of the scar which is discolored, is very painful on pressure and has ulcerated lesions over its surface. Likewise the scar on the left hand and wrist, where plaintiff's thumb was severed, is tender and sensitive on pressure. There was damage to the great sciatic nerve, causing a lack of nerve force in the left thigh, leg and foot, with consequent atrophy of muscles and demineralization of the bones; the foot is "dropped" and is clawlike.

The ankylosis at plaintiff's hips and knee cause plaintiff's body to be anchored in a stiff position, and it was the opinion of a physician, witness for plaintiff, that plaintiff needs an attendant twenty-four hours of the day, it being impossible for plaintiff to turn over (except to the left) in bed, to care for his private toilet, or to bathe the lower part of his body. He is able to shave himself, bathe his face and upper body. Witnesses, physicians, were of the opinion that plaintiff's disability is total and permanent.

The first problem of the physicians treating plaintiff was to preserve his life. He was treated in the Methodist Hospital of Indianapolis, Indiana, by a physician, regularly employed by defendant, and by a physician called into consultation by defendant's physician and plaintiff's mother. He remained in that hospital a year and two weeks, having spent the first two and a half months in an oxygen tent — his case was complicated by pneumonia. During the time he was in the hospital glucose, sedatives, stimulating drugs and medicines were administered, and 57 blood transfusions were given. Plaintiff was taken from the Methodist Hospital by his mother, and placed in St. Anthony's Hospital at St. Louis where he was treated for a period of ten weeks. Expense of plaintiff's treatment while at the Methodist Hospital was borne by defendant; expense at St. Anthony's Hospital was $500. Since his discharge from St. Anthony's Hospital he has resided at the home of his parents in Indianapolis, where he has been cared for by the members of the family, and by a nurse paid $5.50 or $6.00 for eight hours of the day.

Plaintiff was able to survive his injuries and the treatment of them because of his sound heart, lungs and digestive tract. His heart, so far as physicians can determine, is normal. This fact, together with the fact that the pus of the osteomyelitis is not [161] being absorbed by his system, according to a physician, witness for plaintiff, makes his life expectancy quite as great as if he had not sustained his injury — not all of the physicians, witnesses, were in agreement with this, however. Plaintiff, according to the evidence, has suffered no impairment of his mental faculties, heart, lungs or digestive tract. Of his condition plaintiff testified that his health is (at the time of trial) good, "with the exception of being crippled and having all this osteomyelitis." There is a difference of opinion as to the extent the immobile condition of plaintiff may be corrected by reconstructive surgery. Witnesses for plaintiff, physicians, were of the opinion that operations could be performed to relieve the ankylosis at plaintiff's hips and at the knee joint, the joint at the hips being by surgery so separated as to leave a "flail" joint, permitting plaintiff to bend his body and so to sit uprightly. Physicians, witnesses for the defendant, were of the opinion that plaintiff's condition could be relieved by surgery to the extent that a reconstructed socket for the left leg would enable plaintiff to bear weight upon it, permitting his movement with the aid of crutches. And there is a diversity of opinion upon the question of the practicability of the use of an artificial right limb. The corrective surgery could only be performed progressively, that is, by several operations performed at different times as plaintiff's physical condition may allow. The expense of the surgery, hospitalization, X-ray work and medicines necessary to such operations was estimated by a plaintiff's witness to be from $8700 to $10,100. It is the opinion of physicians that plaintiff is now in such a physical condition that reconstructive surgery could be commenced. The proposed operations include such operative procedures as the cure of the osteomyelitis, the removal of the remainder of the right femur and dissecting out the resulting scar, the removal of dead or diseased bone from the left hip and pelvis, the correction of the left "foot-drop" and of the scar on the left hand and wrist. Of course, these operations would not be unattended by risk.

It is the contention of the plaintiff that the evidence tends to show that he will be required to expend the sum of $10,000 yearly throughout his life for surgery, hospitalization, drugs and attendants. We cannot infer the probable necessity for such an expense from the evidence introduced. The evidence shows, however, that the plaintiff has suffered grave, permanent and most painful injuries which have necessitated, and will necessitate, surgical and medical treatment. His injuries have totally disabled him from the performance of physical tasks. His condition at the time of trial warrants the inference that he will continue to need the service of an attendant, at least unless and until he submits to further surgery which may or may not successfully alleviate the infected and immobile condition of his hips.

Plaintiff's injuries would entitle him to a very substantial award.

Money cannot effect the restoration of the plaintiff's physical well being. None would exchange a sound physical condition for any sum of money. All courts hold the recovery is measured by that which is "fair and reasonable compensation." Money can only provide for a livelihood, and for care and comforts to ameliorate his suffering. There is no mathematical formula by which the amount of compensation in a case of serious and permanent injury can be accurately determined. Fair and reasonable compensation in each case must rest upon the foundation of the facts of the case. Yet some consideration must be given to the amounts of award which have been held to be fair and reasonable compensation where plaintiffs have suffered similar injuries. There should be reasonable uniformity as to the amounts of verdicts. Goslin v. Kurn, supra; Morris v. E.I. DuPont de Nemours Co., 346 Mo. 126, 139 S.W.2d 984; Aly v. Terminal R.R. Ass'n. of St. Louis, 342 Mo. 1116, 119 S.W.2d 363.

Counsel for the parties do not call our attention to a case in which an award for personal injuries of more than $50,000 has been approved by this court. A verdict of $50,000 was held to be within the measure of reasonable compensation in the case of Span v. Jackson, Walker Coal Mining Co. (1928), 322 Mo. 158, 16 S.W.2d 190. We do not cite the case as determining the minimum or maximum of the measure of compensation in the case at bar, and desire that this court be of untrammeled and just decision, in determining that which constitutes a reasonable award, according to the particular facts of a cause as viewed in relation to economic conditions and with a regard to a reasonable uniformity. (a) We cannot say the injuries of plaintiff herein are comparable to the injuries of [162] the plaintiff in the Span case — we have said that the condition of the plaintiff in the Span case was hopeless. West v. Kurn (Mo. Sup.), 148 S.W.2d 752 at page 757. (b) Plaintiff in the Span case was an older man when he was injured than was plaintiff herein. (c) Plaintiff in the Span case was earning less at the time of injury than was plaintiff in the case at bar.

Cases from other jurisdictions have been cited in which amounts equal to or in excess of the award in the Span case have been approved as reasonable for grave, painful and permanent injuries. $50,000, Lindemann v. San Joaquin Cotton Oil Co. (1936), 5 Cal.2d 480, 55 P.2d 870; $50,000, McKeon v. Delaware, L. W.R. Co. (1924), 100 N.J.L. 258, 127 A. 34; $50,000, Kirschbaum v. McCarthy (1936), 5 Cal.2d 191, 54 P.2d 8; $50,000, Carlson v. Sun-Maid Growers' Ass'n. (1932), 121 Cal.App. 719, 9 P.2d 546; $50,000, Budek v. City of Chicago (1935), 279 Ill. App. 410; $55,000, Fried v. New York, New Haven Hartford R.R. Co. (1918), 183 A.D. 115, 170 N.Y.S. 697, affirmed 130 N.E. 917; $58,800, Taylor v. Atchison, T. S.F. Ry. Co. (1937), 292 Ill. App. 457, 11 N.E.2d 610; $60,000, Goldberg v. Capital Freight Lines (1942), 314 Ill. App. 347, 41 N.E.2d 302; $60,000, Gourley v. Chicago E.I. Ry. Co. (1938), 295 Ill. App. 160, 14 N.E.2d 842; $60,000, Ward v. Iroquois Gas Corp. (1931), 233 A.D. 127, 251 N.Y.S. 300; $62,500, Zamecnik v. Royal Transit, Inc. (1941), 239 Wis. 175, 300 N.W. 277; $72,500, Grinnell v. Carbide Carbon Chemicals Corp. (1937), 282 Mich. 509, 276 N.W. 535; $75,000, Toledo, C. O.R.R. Co. v. Miller (1923), 108 Ohio St. 388, 140 N.E. 617; $75,000, Princell v. Pickwick Greyhound Lines (1931), 262 Ill. App. 298; $76,112, Fulton v. Chouteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025; $100,000, O'Connell v. Westinghouse X-ray Co. (1939), 16 N.Y.S.2d 54; $100,000, McDonald v. Standard Gas Engine Co. (1935), 8 Cal.App.2d 464, 47 P.2d 777. Observe that in none was the award for so much as half of that awarded by the jury in the case at bar. We feel that the verdict $203,167 must be viewed as excessive to the extent of many thousands of dollars. As we have stated, a trial court, having had opportunity to observe the effect of the trial proceedings, may infer bias and prejudice from the size of the verdict alone; and we believe that we are not justified, under the record in the case at bar, in holding that in so inferring and ruling the trial court was arbitrary.

The order granting the new trial should be affirmed.

It is so ordered. Bradley and Dalton, CC., concur.


The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.