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State ex rel. v. Ellison.

New Castle v. Hunt, 93 N. E. (Pa.) 173; Boise City v. Wilkinson, 102 Pac. (Idaho) 148; City of Chicago v. Steel Co., 82 N. E. (Ill.) 286.]

The record discloses that, by an affirmative action of the authorized officers of the town of Montevallo, the school district was authorized in 1886 to take this property and use same for school purposes. In compliance therewith, the school district erected a building costing several thousand dollars, and from that time until the institution of this action, no one questioned the title or right of the school district to use and enjoy the property. Valuable improvements were made thereon by the school district, and as between the town and the school district any judgment other than that rendered by the court nisi would result in the perpetration of a wrong and rank injustice. It is my opinion that this is one of the exceptional cases in which the doctrine of abandonment and estoppel should be applied as against a municipal corporation. For this reason the judgment should be affirmed, and it is so ordered. Blair, Faris, Walker and Graves, JJ., concur; Woodson, C. J., and Bond, J., concur in result.

THE STATE ex rel. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES ELLISON et al., Judges of the Kansas City Court of Appeals.

in Banc, June 2, 1916.

1. NEW TRIAL: Weight Of Evidence: Discretion of Trial Court. Trial courts have a broad discretion in passing upon the weight of evidence in their consideration of motions for a new trial. Where a trial judge exercises his discretionary power of setting aside a judgment on the ground that it is against the weight of 268 Mo.-15

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State ex rel. v. Ellison.

the evidence, his action in so doing wil. not be reviewed upon appeal except upon a showing that no verdict in favor of the party to whom the new trial is granted should be allowed to stand.

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Ruling Adversely On Motion. . Whenever the trial court has ruled adversely upon a motion for the new trial and has rit its seal of approval upon the verdict in matters having reference to the weight of evidence, the verdict must be upheld if there is any substantial evidence to support it.

Punitive Damages: Excessive: Remittitur.. Trial and and appellate courts have the same power of supervision over veruicts for punitive damages that they have over verdicts for compensatory damages, and the rule permitting either court to require a remittitur applies as well to punitive damages as to compensatory damages.

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Granting New Trial. The trial court has power, upon the filing of a motion for a new trial charging that the verdict for a tort is contrary to the weight of the evidence, to require a remittitur of a part of the verdict for punitive damages, as a condition for overruling the motion, and upon a failure to file such remittitur, to sustain the motion; and its discretion in so doing will not be interfered with on appeal, if there is any substantial evidence to uphold its ruling that the jury's award of such damages is excessive.

: Proof. There may be evidence of much or little malice or recklessness in the case-to be deduced from the criminality, the insolence of manner and demeanor, or the insulting words and acts of the tortfeasor, all relating themselves to the circumstances of the case, such as the age, the sex, the health of the person wronged, the weather prevailing, the time and place of the tort, the persons present thereat and the standing in affluence and influence of the tortfeasor, and this proof bearing on the quantum of punitive damages the trial judge should be left free to weigh on the hearing of a motion for a new trial just as he is to weigh any other evidentiary fact of the case, and to set aside the verdict if the punitive damages are not supported by the evidence.

6. CERTIORARI TO COURT OF APPEALS: Judgment of Supreme Court. . On a hearing of a writ of certiorari directed to the Court of Appeals on the ground that its decision in a certain cause is contrary to the last previous ruling of the Supreme Court on a certain question of law, the Supreme Court has no authority to render a final judgment in the original case, but all it can do is to quash the record of the Court of Appeals, state on the point of contrariety of decision the rule that ought to govern that court upon another hearing, and remani the cause to it for final hearing and determination.

State ex rel. v. Ellison.

Certiorari to Kansas City Court of Appeals.

JUDGMENT QUASHED.

Culver & Phillip for relator.

(1) The assessment of punitive damages and the amount thereof rests in the sound discretion of the jury, and the court will not interfere except in flagrant cases of bias, prejudice and oppression. Clearly a penalty of five hundred dollars against a railway company for a continuing violation of law extending over a period of more than seven years, is not an abuse by the jury of the discretion reposed in it. Summers v. Keller, 152 Mo. App. 636; Canfield v. Railroad, 59 Mo. App. 366; Mill Co. v. Prenzler, 100 Iowa, 540; American Sand & Gravel Co. v. Spencer, 103 N. E. (Ind.) 426; Luther v. Shaw, 147 N. W. (Wis.) 18. (2) The trial court did not set aside the verdict because such verdict was in the opinion of the court the result of bias, prejudice and oppression, but because the amount awarded by the jury for punitive damages did not coincide with the opinion of the court as to the extent of punishment that should be imposed upon defendant for its act. Clearly, this is an invasion of the province of the jury. (3) The damages allowed by the jury were extremely modest. In cases involving no greater actual damage and where the circumstances did not so clearly disclose malice and oppression on the part of defendant, verdicts for much larger amounts have been sustained. Trauerman v. Lippincott, 39 Mo. App. 478; Ruth v. Transit Co., 98 Mo. App. 19; McNamara v. Transit Co., 182 Mo. 676; White v. Railway, 132 Mo. App. 339; Phettiplace v. Railroad, 20 L. R. A. 483; Railroad v. Hennigh, 39 Ind. 509; Railroad v. McDonald, 53 Ind. 289; Railroad v. Kranfield, 46 So. 71. (4) While courts have a supervisory power over verdicts for punitive damages, the court will rarely interfere with the award of exemplary damages on the ground

State ex rel. v. Ellison.

that such award is excessive. Luther v. Shaw, 147 N. W. (Wis.) 19. (5) Granting a new trial because the verdict is excessive is granting a new trial because the verdict is against the evidence, and this court has so held. McCloskey v. Publishing Co., 163 Mo. 32; McCarty v. Transit Co., 192 Mo. 396.

Charles F. Strop and Graham & Silverman for respondents.

(1) This court will not act by certiorari unless there has been a clear, real, and substantial failure by the Court of Appeals to follow the decisions of this court. State ex rel. v. Reynolds, 257 Mo. 35. (2) The reason assigned by the trial court for the granting of a new trial was that the verdict was excessive as to the punitive damages. This was a denial of all other grounds contained in the motion. Miller v. Madison Car Co., 130 Mo. 517; Gould v. St. John, 207 Mo. 631; Jiner v. Jiner, 182 Mo. App. 159. Among such other grounds alleged by relator in its motion for new trial was "that the verdict was against the weight of the evidence and unsupported by any evidence in the case. (3) The opinion of the Court of Appeals is in accord with the decisions of this court in the following cases: Brown v. Printing Company, 213 Mo. 653; Brown v. Knapp & Co., 213 Mo. 697; Hartpence v. Rogers, 143 Mo. 638; Morgan v. Ross, 74 Mo. 324; Carson v. Smith, 133 Mo. 617. (4) There is no ruling of this court in which the question decided by respondents has been presented or given consideration. If this statement is correct there can be no failure to follow the decisions of this court, and the writ of certiorari herein must be quashed.

FARIS, J.-This in an original proceeding by certiorari, to bring up the record of the Kansas City Court of Appeals in the case of H. C. Smith, appellant, v. Atchison, Topeka & Santa Fe Railway Company, respondent, lately pending in that court, and wherein the

State ex rel. v. Ellison.

judgment of the court nisi was reversed and the case remanded with directions to enter judgment below in accordance with the verdict. [Smith v. Railroad, 192 Mo. App. 210.] From this it will be seen that the appellant Smith had judgment below, which upon motion of respondent therein, was set aside and Smith appealed.

The facts in the case of Smith v. Railway are brief and these facts, together with the action of the jury and the court nisi therein, are thus stated by the learned Kansas City Court of Appeals in their opinion now before us:

"Plaintiff boarded defendant's electric passenger car at Gower, Missouri, for the purpose of being carried as a passenger to St. Joseph in the same State, a distance of twenty miles. He did not have a ticket, stating that he had not time to purchase one after his arrival at the station. The legal rate of fare was two cents per mile, and according to that rate he tendered the conductor forty cents for the full distance he wished to go. The conductor refused the offer and demanded sixty cents, which would be three cents per mile. Plaintiff refused to pay it and the conductor, in the presence of the passengers, told him he would stop the car and put him off. Plaintiff persisting in his refusal, the conductor stopped the car, took plaintiff by the arm and led him to the door and put him off. After being put off he stated to the conductor that he was a deputy sheriff and he 'would like to go on.' The conductor replied with an oath that he did not care who he was, he would not take him.

"Plaintiff brought an action for one thousand dollars compensatory and the same amount as punitive damages. A trial was had and a verdict returned for five dollars for the former and five hundred dollars for the latter. On motion for a new trial the court suggested that the punitive damages were excessive and that if plaintiff would remit four hundred dollars the motion for new trial would be overruled; if he did not it would

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