Kirn v. E. E. Souther Iron Co.

REYNOLDS, P. J. (after stating the facts).— In the brief presented to us five points are urged for a reversal. The first is as to instruction No. 4. That is objected to on the ground that it singles out and gives undue prominence to a particular fact, that is to say, the date of the incorporation of the Woodruff Realty Company. It is a well-settled rule of practice in our State, that an instruction singling out and giving undue prominence to a fact is erroneous. We do not think that [460] applies to this instruction, under all the facts and the other instructions in the case. ■ The second assignment of error is to the admission in evidence of the application for and taking out of the building permit, which, it is insisted, is not shown to have been the act of the defendant or its authorized agent. We cannot sustain this assignment. There was evidence to connect the president of the defendant company, as such president, with making the application for and issuance of the permit, to entitle it to go to the jury along with other evidence in support of the contention of plaintiff that the work done by him was under the employment of an employee of this defendant. The papers on their face were in the name of the defendant. The facts attendant upon their execution were before the jury. The jury were properly instructed to cover this. The third assignment of error is on the refusal of the court to give the peremptory instruction for nonsuit. Following what we have before stated, this assignment necessarily must fall. Reading all the testimony in the case, we are satisfied that there was substantial evidence entitling the plaintiff to go to the jury. The fourth error assigned is that the verdict is so contrary to all the evidence that it must have been the result of passion or prejudice on the part of the jury; that there was no substantial evidence that the defendant was erecting the building where plaintiff was injured, or was in any manner negligent. We cannot agree to this assignment. The facts attendant upon the accident were before the jury; the evidence as to them was conflicting. The jury were correctly instructed concerning this phase of the case. Their finding on them is conclusive, as it is supported by substantial evidence. As to the issue of employment, as to who was the real employer, that was supported for plaintiff by substantial evidence. This case presents the not uncommon one of proving itself as much by what was not in evi [461] dence as by what actually was in evidence before tbe jury. The realty company was incorporated with a capital stock of $10,000. Tbe incorporators of that company were tbe stockholders of tbe iron company. Tbe officers of tbe two companies were identical, titles only changing, tbe president of one being tbe vice-president of tbe other and vice versa,. Before tbe incorporation of tbe company, plans were entered upon for tbe construction of this building and a permit taken out in tbe name of tbe iron company by tbe superintending contractor or builder, tbe man of all others who might be supposed to know bis employer. Tbe building was to be erected for tbe use of tbe defendant. Confessedly tbe building was to and did cost $70,000. Tbe presumption is, in tbe absence of evidence to tbe contrary, that this was paid for by some one. Certainly tbe receipted bills which have been introduced in evidence by tbe defendant tend to show that, because all of them are for balances on account. Two of them are dated after tbe institution of this suit. By whom tbe great bulk of tbe $70,000 construction was paid is not in evidence and yet it must have been evidence not only accessible to but in tbe possession of tbe real parties in interest in this case, whether those parties were called E. E. Souther Iron Company or Woodruff Realty Company. Tbe jury bad a right, which undoubtedly they exercised, to assume that if these bills for over $60,000 bad been paid by tbe realty company tbe production of tbe receipts would have been easy, and would show that fact. Tbe failure to produce them is certainly a very strong and persuasive argument in support of tbe contention of plaintiff that tbe real owner and constructor of tbe building was tbe E. E. Souther Iron Company. Furthermore, it was before tbe jury as a fact in the case that tbe realty company, with $10,000 capital, was erecting a $70,000 building. That was a circumstance which tbe jury bad a right to take into consideration in determining tbe question of tbe real ownership of tbe [462] property. On consideration of the record in the case and of the testimony as abstracted by counsel, we conclude that this assignment should not be sustained. The concluding assignment of error is that the verdict is excessive in amount, even after remittitur. To sustain this assignment in this, as in all other cases of like character, where this point is made, requires this court to substitute its judgment for that of the jury as well as of the trial judge, in measuring the damages and in arriving at a correct estimate of them. To do this, while clearly within our right (Chitty v. Railway Co., 148 Mo. 64), imposes a duty upon us that we are always reluctant to exercise. If satisfied from the evidence in the case that a verdict is the result of prejudice or passion, it is the duty of the trial court not to rest at merely ordering a remittitur, but to set the entire verdict aside. When the question is presented of scaling it down, it is to be remembered that not only the jury but the trial judge heard the testimony, and saw the witnesses by whom it was given. The opinion of each of them as to the damage sustained, when the case is submitted under proper instructions, is entitled to great consideration, and will only be disturbed by us in a clear case. The trial court expresses his opinion on it, when he sustains it in full or orders a remittitur. He acts, not alone within his great discretionary power, but with the great advantage that he has over this court. Except in a clear case of abuse of discretion, this court will not undertake to interfere with the exercise of that discretion. We cannot sustain this final assignment. The judgment of the circuit court is affirmed. All concur.