Southern Pac. Co. v. Maloney

VAN DEVANTER, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is complained that the court denied the defendant’s request for a directed verdict in its favor; that the court instructed the jury that tfcs defendant was liable for the “damages naturally resulting” to the plaintiff from the wrongful acts of the portel, thereby permitting damages to be awarded for mere inconvenience, fright, and mental suffering; that the damages awarded are excessive; and that the court denied the defendant’s motion for a new trial. In support of the contention that there should have been a directed verdict, it is said that the petition failed to allege, and the evidence failed to show, any substantial injury to the plaintiff, and that, therefore, there was nothing upon which a verdict in her favor could be properly rested. The contention is not well taken. The petition alleged and the evidence established that the porter wrongfully took the plaintiff’s money, and she was entitled to a verdict for that amount, no matter what view should have been taken of her claim to damages in other respects. Nor was there error in the instruction that the defendant was liable for the “damages naturally resulting” from the wrongful acts of the porter. While the language used was quite general, and not calculated to convey to the jury a very definite idea of what could be considered by them in assessing the damages, it stated the'law correctly as f-r as it went, and, if the defendant desired that the jury be more particularly instructed upon that subject, it should have prepared and presented an instruction embodying correct legal propositions applicable to the state of the evidence, and have requested that it be given. .This was not done. The record, however, discloses that the subject was not left in the condition suggested by the instruction complained of, but that in the [173] succeeding portion of the charge the court defined with particularity the elements of damage which the jury should consider. No objection was made or exception taken to that part of the charge. It was therefore assented to, and its correctness is not now open to consideration. In the federal appellate courts, where no error of law appears upon the record, a verdict is conclusive in respect of the amount of damages. Railroad Co. v. Froloff, 100 U. S. 24, 31, 25 F. Ed. 531; Ash v. Prunier, 44 C. C. A. 675, 678, 105 Fed. 722; Metropolitan Street R. R. Co. v. Beattie, 50 C. C. A. 472, 111 Fed. 945. And in those courts rulings upon motions for new trial are not reviewable, because such a motion is addressed to the sound discretion of the court. Railway Co. v. Heck, 102 U. S. 120; McClellan v. Pyeatt, 1 C. C. A. 613, 50 Fed. 686; City of Manning v. German Insurance Co., 46 C. C. A. 144, 107 Fed. 52; Walker v. Moser, 54 C. C. A. 262, 117 Fed. 230. The judgment is affirmed.