rather than by a desire to do justice between the parties.2 This discretion, however, will not be lightly exercised. "It is only where verdicts are palpably against evidence, or obviously the result of passion or prejudice, that courts are permitted to interfere upon the ground that the verdict is excessive or unauthorized by the facts." "The damages assessed by the jury may have been greater than the court would have awarded upon the evidence. But the parties are entitled to the judgment of the jury, and not of the court, upon that question; and courts will not set verdicts aside on the ground that damages are excessive or inadequate, unless it is apparent that the jury acted under some bias, prejudice, or improper influence, or have made some mistake of fact or law; mere difference of judgment is not sufficient." 994 "The court cannot substitute its own sense of what would be proper for the verdict of the jury.”

$7349. Must be Assigned as Ground for New Trial.-In some jurisdictions, the question whether the damages were excessive will not be considered in an appellate court, unless this matter has been assigned in the court below as ground for a new trial. This rule of appellate procedure is one founded in obvious propriety. The reason of it is that it is right that the court below should have an opportunity to correct its own errors, if any have been committed, or to grant new trials for misconduct or excesses committed by the jury, before the prevailing party should be put to the expense and delay of a proceeding in an appellate court."

2 Mobile &c. R. Co. v. Ashcraft, 48 Ala. 15; Tomle v. Hampton, 28 Ill. App. 142; s. c. aff'd, 129 Ill. 379; 21 N. E. Rep. 800; Parsons &c. R. Co. v. Montgomery, 46 Kan. 120; s. c. 26 Pac. Rep. 403; Lang v. New York &c. R. Co., 51 Hun (N. Y.) 603; s. c. 22 N. Y. St. Rep. 110; Phillips v. London &c. R. Co., 52 B. Div. 78.

Danville &c. R. Co. v. Stewart, 2 Metc. (Ky., 122, per Stites, J. See also, Ross v. Texas &c. R. Co., 44 Fed. Rep. 44.

*Kimball v. Bath, 38 Me. 222, per Rice, J. To the same effect see St. Louis &c. R. Co. v. McLain, 80 Tex. 85; s. c. 15 S. W. Rep. 789; Gulf &c. R. Co. v. Necco (Tex.), 15 S. W. Rep. 1102.

Jacobs v. Bangor, 16 Me. 192, per Shepley, J. To the same effect see Gale v. New York &c. R. Co., 53 How. Pr. (N. Y.) 387; s. c. 13 Hun (N. Y.) 1; Brumley v. Flint, 87

Cal. 471; s. c. 25 Pac. Rep. 683 (will not be disturbed where evidence is conflicting); Chicago v. Smith, 48 Ill. 107; Butler v. Bangor, 67 Me. 385; Shartle v. Minneapolis, 17 Minn. 308; Wightman v. Providence, 1 Cliff. (U. S.) 524; Weisenberg v. Appleton, 26 Wis. 56.

Wilson v. Everett, 139 U. S. 616; s. c. 35 L. ed. 286; 11 Sup. Ct. Rep. 664; St. Louis &c. R. Co. v. Cantrell, 37 Ark. 519, 527.

7

This rule is settled in Missouri by numerous decisions: Exchange Bank v. Allen, 68 Mo. 474; Brady v. Connelly, 52 Mo. 19; Banks v. Loder, 39 Mo. 406; McCoy v. Farmer, 65 Mo. 247; Acock v. Acock, 57 Mo. 155; Curtis v. Curtis, 54 Mo. 351; State v. Marshall, 36 Mo. 400; Lancaster v. Insurance Co., 62 Mo. 121; Morgener v. Kister, 42 Mo. 466; Collins v. Barding, 65 Mo. 496; Bevin v. Powell, 11 Mo. App. 216.

$7350. Amount as Determined by Pleadings and Estimates of Witnesses. The recovery may in no case exceed the amount demanded by the plaintiff in his complaint, notwithstanding evidence admitted without objection shows damages in a larger sum. Under this principle it has been held in one case that, though the complaint stated that the plaintiff had been compelled to pay $250 for medicines, he may testify that he paid $750 on medical bills, the defendant merely having the right to have the recovery on that account limited to $250.8 The jury, being clothed with large discretion in weighing the testimony of witnesses, and being limited as to the maximum of the recovery by the ad damnum, may, with entire propriety, allow the largest amount shown by any witness, and the verdict will be upheld though it exceeds the amount testified to by the plaintiff himself." So, where the plaintiff introduced two witnesses to prove his damages, and, before resting his case, declared that there were yet other witnesses to prove damages if the defendant intended to dispute the amount so proved, and counsel for the defendant announced that the defendant would introduce no testimony on the question of damages, and no further evidence was given,-if the jury found for the plaintiff, he was entitled to recover the amount as shown by the undisputed testimony of the plaintiff.10 But where the amount awarded is less than the lowest estimate of any witness, a disregard of the evidence is shown and the verdict should be set aside.11 As a general rule a verdict will not be disturbed on appeal, as being larger than warranted by the testimony, where no instructions were given the jury on the proper sum to be awarded in case of a finding for the plaintiff, and the defendant asked for none.12

$7351. Where Property is Injured.-Where the injury is to property, whether real or personal, it is, in ordinary cases, far easier to estimate the damages justly, and the court will have far less hesitation in interfering, than where the basis of damages is indeterminate and insusceptible of accurate measurement, as is usually the case in actions for personal injuries. Thus, where the evidence showed the value of domestic animals destroyed by the negligence of the defendant to be $411, and the verdict was for $441, and no circumstances of aggravation were shown, justifying exemplary damages, the verdict was set aside as excessive.13 So, a verdict for damBut see Ranck v. Cedar Rapids Gas Co., 116 Iowa 11; s. c. 89 N. W. Rep. 88.

Galveston &c. R. Co. v. Eckles, 25 Tex. Civ. App. 179; s. c. 60 S. W. Rep. 830.

'Railroad V. Abernathey, 106 Tenn. 722; s. c. 64 S. W. Rep. 3. "Union &c. R. Co. v. Henry, 36 Kan. 565.

12 Weese v. Brown, 102 Mo. 299; s. c. 14 S. W. Rep. 945.

13 Toledo &c. R. Co. v. Arnold, 43 III. 418. See also, McGary v. La

"Dibble v. State, 77 App. Div. (N. fayette, 4 La. An. 440. Y.) 647; s. c. 79 N. Y. Supp. 78.

ages for injury to an untrained horse, which, at the time of his injury, was being shipped for training purposes, was set aside as excessive where the only evidence of value approaching the amount of the verdict consisted chiefly of opinions based upon the idea that the horse had a good pedigree, and would, when trained, make good time.1 And so, where the owner of stock injured during transportation testified that he had no knowledge of the value of the animals. shipped, except twenty-two head, and the only other evidence thereon was that of a witness who disclaimed any knowledge of injuries to stock shipped in four cars, which were named in plaintiff's declaration, a verdict for the full amount of plaintiff's claim was set aside as excessive.15 Very clearly the judgment should be reversed where it. awards damages for more property alleged to have been destroyed by negligence than is claimed by the complaint.16

§ 7352. Injuries to the Person.-With regard to injuries to the person, the rule is well stated in an Iowa case1 as follows: "It is difficult to estimate the amount of the recovery for pain and suffering, either of body or mind, and we have rarely interfered with verdicts of this character. Each case, however, must be governed and controlled by particular facts and circumstances. No general ruleapplicable to all cases can be adopted,-unless it be that whatever the verdict may be it must stand, and cannot be in any manner disturbed, however much it may strike the mind as having been given. under the influence of 'passion or prejudice'; and certainly no such rule as this will for a moment be insisted on." Says Kent, C. J.: "The question of damages is within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances; and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so to induce the court to believe that the jury must have acted from prejudice, partiality, or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries.”18

14 Illinois Cent. R. Co. v. Radford (Ky.), 23 Ky. L. Rep. 886; s. c. 64 S. W. Rep. 511 (no off. rep.).

15 Alabama &c. R. Co. v. Coleman, 78 Miss. 182; s. c. 28 South. Rep. 828.

16 Gulf &c. R. Co. v. Thompson (Tex. App.), 16 S. W. Rep. 174. 17 McKinley v. Chicago &c. R. Co., 44 Iowa 322, per Seevers, C. J.

18 Coleman v. Southwick, 9 Johns. (N. Y.) 45.

$7353. Further of Injuries to the Person-Permanent Injuries.— Where the injury to the person is permanent in its character, and entails bodily or mental pain and suffering upon the plaintiff, the courts will hesitate to disturb the verdict, although it may be very considerable.1 This will be best understood by the aid of a few illustrations. Thus, where it appeared that the plaintiff and his wife suffered personal injury, and that in consequence thereof he was compelled to pay a physician's fee of $75, and to employ a girl to do the work formerly done by his wife, at an expense, for wages and board, of $411, and to pay $35 for repairs of his wagon and harness, making in all $521 actual pecuniary loss, besides the personal injury to himself, it was held that a verdict for $800 was not excessive.20 In a case where the injuries were a fracture of the skull and severe bruises, the former resulting in a loss of memory and a permanent injury to the sight of one eye, a verdict of $7,000 was sustained.21 In another instance, where the injury necessitated the amputation of an arm, and the defendant was guilty of "gross negligence," a verdict for $10,000 was sustained. 22 In a case where the injury resulted in epilepsy, from which the physicians testified that the plaintiff would probably never recover, and there were other elements of damages,-as, the loss of two horses,— the court characterized a verdict for $700 as very moderate.23 Again, where the proof showed that the plaintiff had received permanent injuries of a very serious character, from which she might never recover, and which would probably cause her death; that prior to the accident she had enjoyed excellent health, but since that time—a period of five years-she had been a constant invalid, and had suffered great pain,-upon these facts, the court refused to disturb a verdict for $5,000.24 In an Iowa case, it appeared that the plaintiff's injuries were very severe. The neck of the left thigh-bone was fractured; her sufferings were intense and protracted; she was kept in her bed for more than seven weeks, and, when she left it, found that she was a cripple for life. Her left leg, at the time she gave her testimony at the trial, nearly eight months after the accident, was still useless, and she continued to suffer pain from the injury. She was a woman of good health, and superintended the household affairs.

"Chicago &c. R. Co. v. Murray, 71 Ill. 601; Chicago &c. R. Co. v. Wilson, 63 Ill. 167; Deppe v. Chicago &c. R. Co., 38 Iowa 592; Maloy v. New York &c. R. Co., 58 Barb. (N. Y.) 182; Rockwell v. Third Avenue R. Co., 64 Barb. (N. Y.) 438; McDonald v. Ashland, 78 Wis. 251; s. c. 47 N. W. Rep. 434

of her husband, who kept a boarding-house. The evidence tended to show that she was totally unfitted for the active duties of life, and that she would never recover from its effects. The court declined to interfere with a verdict for $15,000.25 Upon a rehearing, however, this sum was subsequently reduced to $10,000.26 In another case, in the same State, the plaintiff sustained an injury which disabled him for life and deprived him of ability to labor, upon which he was dependent for support. The bone of his thigh was crushed, and he received severe internal injuries. His sufferings were protracted and most intense; for he had to endure for seven weeks the excruciating torture of machinery and appliances used by surgeons to prevent a shortening of his limb, which, however, were unavailing. A verdict for $9,000 was sustained. The rule is without strict application where the question of permanency is involved in doubt. Thus, where, in an action for personal injury tried twenty-six days after the accident, the amount of the verdict shows that it was based on the supposition that the result of injury would be permanent, and the only evidence of permanency was that of a physician who left it in serious. doubt, it was held that the amount should be reduced.28

27

§ 7354. Further of Injuries to the Person-Temporary Injuries.— On the other hand, if it appear that the injury is temporary in character, or slight in its nature, the court will not permit the plaintiff to recover damages which are greatly disproportioned to the injury.29 Thus, where it appeared that the plaintiff had no bones broken, and his physicians testified that it was merely a muscular injury, and were unable to give any satisfactory explanation of his lameness, and five or six witnesses testified to having seen him, on as many different occasions, when in a state of some excitement, walking, and even running for a short distance, without showing any appearance of lameness, the court characterized a verdict of $5,000 as "wholly disproportionate to the injuries received," and reversed the judgment.30 A girl who earned her living as hired help, and received about $100 per annum for her services, was injured in consequence of a defective sidewalk, but not to such an extent as to prevent her still earning her living by labor she was qualified to do. A verdict for $3,000 was

V.

Collins
Iowa 326.
20 Collins V. Council Bluffs, 35
Iowa 432.

Council Bluffs, 32

Deppe v. Chicago &c. R. Co., 38 Iowa 592. See also, Rowell v. Williams, 29 Iowa 210.

95 Tex. 424; s. c. 67 S. W. Rep. 763; rev'g s. c. 66 S. W. Rep. 229.

Kepperly v. Ramsden, 83 Ill. 357; Gleason v. Bremen, 50 Mo. 222; Patten v. Chicago &c. R. Co., 32 Wis. 524.

30 Chicago &c. R. Co. v. McAra, 52 29 San Antonio &c. R. Co. v. Gray, Ill. 296. See also, Chicago &c. R.

Co. v. McKittrick, 78 Ill. 619.