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State ex rel. v. Ellison.

be sustained. Plaintiff refused and a new trial was thereupon granted."

The Court of Appeals, as forecast above, held that the action of the court nisi in granting a new trial to defendant railroad, for the failure of plaintiff Smith to enter a remittitur therein, was wrong, and thereupon reversed and remanded the case with directions to the trial court to enter judgment on the verdict as returned by the jury. As reasons for its action in such behalf the Court of Appeals said:

"But defendant insists that instead of looking into the record to see if there was any evidence in plaintiff's favor tending to support the verdict, we should endeavor to ascertain if there was any evidence in defendant's favor tending to support the conclusion of the trial court that the verdict was excessive. It being conceded that if a trial court granted a new trial on the ground that the verdict was against the weight of the evidence an appellate court will only look to see if there is any substantial evidence supporting the courts' order, defendant claims that there is no difference in that instance and the case at bar. It therefore claims that as there was substantial evidence in the record tending to show the punitive damages assessed by the jury were excessive, we should affirm the order granting a new trial.

"We think defendant misconceives both what the court did and what it had the power to do. In the first place the trial court did not grant a new trial to defendant because the court thought no case was made against it, or that there had been any error in the trial. The court found that plaintiff had a case, both for compensatory and punitive damages, and would have overruled the motion for new trial except the court took upon itself the duty of measuring the punitive damages and in so doing found they were too much and that unless plaintiff would remit down to one hundred dollars, a new trial would be granted. Plaintiff's refusal to do

State ex rel. v. Ellison.

so was the sole ground and immediate cause of granting a new trial. Therefore, as we have said, there being substantial evidence to support the verdict, it should be allowed to stand, unless the trial court properly ordered it to be reduced.

"If there is evidence in a case which tends to support a verdict for punitive damages the court cannot interfere as to the amount except it be so disproportionate to the wrong committed by the defendant as to strike all reasonable men that the jury in fixing upon the sum found, have acted corruptly, or from passion and prejudice. It is a species of allowance made to the plaintiff not because it is his due, but as a punishment to the defendant and a deterring example to others. While a plaintiff has an absolute right to compensation for a wrong committed against him, he has no absolute right to demand that the defendant be also punished. The jury may inflict the punishment, but it is left absolutely with them."

Relator contends that the judgment in said case of Smith v. Railway ought to be quashed and for naught held, for that it is contrary to the decision of this court in the case of McCloskey v. Publishing Co., 163 Mo. 22, and other cases ruled by us, which either expressly or tacitly followed the McCloskey case.

Toward an ascertainment and discussion of this contention what we say below will be directed.

I. Our statute (Sec. 2022, R. S. 1909), and the decisions of all of the appellate courts construing it, have been peculiarly benevolent and encouraging to the trial courts in the matter of giving such courts a broad

Discretion of Trial Court.

discretion in passing upon the weight of the evidence in their consideration of motions for a new trial. The statute is definitely expressive of a few phases of the court's inherent powers, and our own rulings upon it are so sanctified by age and uniformity as to have become

State ex rel. v. Ellison.

almost elementary. Regardless of the seeming weight of the evidence opposed to the action of the court nisi in setting aside a verdict of a jury on this ground, we do not interfere so long as there is any substantial evidence to bolster up the trial court's action. It is only when, had the verdict been the other way about, we would not for lack of supporting evidence bave permitted it to stand, that we interfere with the trial court's discretion.

In a late case in Banc, Lyons v. Corder, 253 Mo. 1. c. 561, BOND, J., properly and succinctly stated the trial court's powers in these behalves thus:

"The law is well settled in this State, that where a trial judge exercises his discretionary power of setting aside a judgment on the ground 'that it is against the weight of the evidence,' his action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. In which event, the exercise by the trial court of his power to grant a new trial although put upon a discretionary ground, is deemed to be unjudicial, and it is the duty of this court to reverse his ruling in that respect. [Foley v. Harrison, 233 Mo. 1. c. 507, 508; Smoot v. Kansas City, 194 Mo. 1. c. 532; Casey v. Transit Co., 186 Mo. 1. c. 232; Fitzjohn v. Transit Co., 183 Mo. 1. c. 78, 79, 80.]"

II. But the moment the trial court has ruled adversely upon the motion for a new trial and has thus put the seal of its approval upon the verdict of the jury, the point of view of the appellate court upon matters having reference to the weight of the When New evidence, changes diametrically and all presumptions are to be exercised in favor of the verdict (Gould v. St. John, 207 Mo. 619), and it must be upheld if there is any substantial evidence to uphold it. Hence, the seeming contrariety of ruling and the futility of citing cases which rode off

Trial Is

State ex rel. v. Ellison.

upon the latter point in aid of a state of facts in which. the former point is presented. For it is manifest that when an appellate court is discussing the propriety of the action of a trial court in overruling a motion for a new trial, which motion is bottomed on the contention that there is no substantial evidence to sustain the verdict, we again apply the same test (but from the wholly converse standpoint) of whether there is any substantial evidence to sustain the action of the court and jury. [State ex rel. v. Ellison, 256 Mo. 1. c. 661.]

Generalizing thus for premises, we come to the only two points which we find it necessary to discuss, viz.: (a) what power, if any, has the trial court over a verdict for punitive damages? and (b) does the determination of the excessiveness of such a verdict so far involve an examination into the weight of the evidence as to permit the full application of the well-settled rule above set out?

Remittitur of Punitive Damages.

III. At common law the rule is said to have been that unless the amount of exemplary damages awarded by a jury was so outrageous as to "so impress all mankind at first blush," the court had no power to interfere. [Hanna v. Sweeney, 78 Conn. 492.] But it has never been the law that it was not within the province of the trial court to say whether or not the facts shown warranted as a matter of law the awarding of punitive damages. The determination of this matter has been always one of law for the court. [13 Cyc. 118.] However, we cannot find that in this State juries have ever been allowed so comprehensive a power to award damages of this sort as they were allowed at common law. In a very early case here the jury awarded plaintiff the sum of $800, largely as punitive damages. The trial court seems to have required (the opinion says "suggested") a remittitur of $350, rendering judgment for the balance. This court said: "In this case exemplary

State ex rel. v. Ellison.

damages were permissible, but that would not justify arbitrary damages, growing out of the caprice or prejudice of the jury. But we must see that manifest injustice has been done before we would be authorized to interfere." [Walser v. Thies, 56 Mo. 1. c. 92.]

This rule does not in the last analysis differ so very greatly from the rule defining the power of the court to require the entry of a remittitur for excessiveness of a part of an award of compensatory damages, as a condition of the approval of the verdict. It is difficult to see any reason for any distinction, except the procedural one arising from the inherent difficulty of proving the fact of excessiveness. For compensatory damages are obviously more often capable of certain and exact determination than are punitive damages. Sometimes compensatory damages are determinable with mathematical accuracy; while punitive damages, being bottomed on the malice (express or implied), or on the wantonness, of the tortfeasor's act, are always impossible of exact measurement and determination.

But be this as may be, the modern rule in this (Cook v. Globe Printing Co., 227 Mo. 471), as well as in a great majority of other jurisdictions, is trending toward the fixed view that trial and appellate courts have the same power of supervision over the one sort of damages as they have over the other sort. [8 R. C. L. 680, 681.] The differences are only in degree, growing out of difficulties met by the courts in exercising this power. [Sperry v. Hurd, 267 Mo. 628.]

In the late and most excellent compilation of the concensus of leading cases above cited, it is said upon. this question:

"It is difficult to lay down any rule by which to test the question of excess in a verdict for punitive or exemplary damages. At common law the amount was left almost entirely to the jury, and the courts generally refused to grant a new trial on the ground that

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