Choctaw, O. G. R. Co. v. Burgess , 21 Okla. 653 ( 1908 )

The plaintiff in error in its motion for a new trial for the first time raises the question that W. N. Burgess, the husband of the herein Myra Burgess, was an improper party plaintiff. Section 4951, Mansf. Dig. Ark. 1884 (Ind. T. Ann. St. 1899, § 3156), extended by act of Congress to the Indian Territory, provides that:

"Where a married woman is a party, her husband must be joined with her, except in the following cases: * * * Second she may maintain an action in her own name for * * * damages against any person or body corporate for any injury to her person, character, or property."

This statute does not appear to have ever been construed by the Supreme Court of the state of Arkansas, or by the United States Court of Appeals for the Indian Territory. It is not necessary, however, for the construction of the same for the proper disposition of this case. Section 5028, Mansf. Dig. 1884 (Ind. T. Ann. St. 1899, § 3233), provides:

"The defendant may demur to the complaint where it appears on its face, either: First, that the court has no jurisdiction of the person of the defendant, or the subject-matter of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between the same parties for the same cause; or, fourth, that there is a defect of the parties plaintiff or defendant; or fifth, that the complaint does not state facts sufficient to constitute a cause of action."

Assuming that the question of contributory negligence could be raised by demurrer, when it was apparent on the face of plaintiff's complaint — which it is not necessary to determine here — all the defendant's grounds of demurrer come under said subdivision 5. Section 5031, Mansf. Dig. 1884 (section 3236, Ind. T. Ann. St. 1899), provides as follows:

"When any of the matters enumerated in section 5028 (Ind. T. Ann. St. § 3233) do not appear upon the face of the complaint, the objection may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject-matter of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action."

Also section 5029, Mansf. Dig. 1884 (Ind. T. Ann. St. 1899, § 3234), provides:

"The demurrer shall distinctly specify the ground of objection to the complaint; unless it does so, it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action."

A general demurrer, not raising the question of defect of parties, the same being made a special ground of demurrer by the fourth subdivision of section 5028, of Mansfield's Digest,supra, such defect of parties plaintiff neither having been taken advantage of by demurrer nor answer in the nisi prius court, cannot be raised on appeal. Eagle et al. v Beard et al.,33 Ark. 501; Yonley v. Thompson, 30 Ark. 401; Molen et ux. v.Orr, 44 Ark. 488; Bevens v. Barnett (Ark.) 22 S.W. 160; Clark v. Grambling,54 Ark. 526, 16 S.W. 475; Bailey v. Rockafeller, 57 Ark. 219, 21 S.W. 227; Long v. De Bevois, 31 Ark. 480; Coulson v. Wing,42 Kan. 508, 22 P. 570, 16 Am. St. Rep. 503; Seip v.Tilgham, 23 Kan. 290; Chicago Atchison Bridge Co. v. Fowler,55 Kan. 17, 39 P. 727; Foster v. Board of CountyCommissioners, 63 Kan. 43, 64 P. 1037; Gentry v. Singleton, 128 Fed. 679, 63 Cow. C. A. 231; First National Bank v. Hamor, 1 Cow. C. A. 153, 49 Fed. 45, 7 U.S. App. 69.

But if the husband was improperly joined as party plaintiff in an action for damages on account of personal injuries sustained by the wife, under the provisions of sections 5028, 5029, and 5031, Mansf. Dig. Ark. 1884 (Ind. T. Ann. St. 1899, §§ 3233, 3234, and 3236), which are practically identical with sections 4293, 4294, and 4295 of Wilson's Rev. Ann. St. Okla. 1903 (sections 4971, 4972, and 4973, Gen. St. Kan. 1905. sections 89, 90, and 91, Kan. Code Civ. Proc.), it was not a defect of parties plaintiff, but a misjoinder or excess of such parties, and cannot be taken advantage of by demurrer, but by motion. Little Rock Ft. Smith Railroad Co. v. Dyer,35 Ark. 363; Oliphint v. Mansfield, 36 Ark. 191; Fry v. Street,37 Ark. 39; Stiles v. City of Guthrie, 3 Okla. 26, 41 P. 383; Weberv. Dillion, 7 Okla. 568, 54 P. 894; Winfield Town Co.v. Maris, 11 Kan. 128; McKee v. Eaton, 26 Kan. 226; White v.Scott, 26 Kan. 476; Hurd v. Simpson, 47 Kan. 372, 27, Pac. 961.

The defendant, not having raised the question of a misjoinder of parties plaintiff in the court below by proper motion, will not now be permitted to maintain such contention in this court.Booker v. Robbins et al., 26 Ark. 660; Long v. De Bevois,31 Ark. 480; Little Rock Ft. Smith Railroad Co. v. Dyer,35 Ark. 363; Fry v. Street, 37 Ark. 39; Collins v. Lightle,50 Ark. 101, 6 S.W. 596; Railroad Co. v. Amos, 54 Ark. 163, 15 S.W. 362; Taylor v. Southerland et al. (Ind. T.) 104 S.W. 874. This is a wholesome rule. A party desiring to take advantage of a defect of or misjoinder or excess of parties plaintiff, must promptly interpose an objection in the manner provided by law. Failing so to do, it will not be permitted to speculate upon a favorable verdict, and then, if disappointed by an adverse finding of the jury, be allowed to raise such question, either in its motion for a new trial or in the appellate court. Little Rock Ft. SmithRailroad Co. v. Dyer, 35 Ark. 363; Coulson v. Wing,42 Kan. 508, 22 P. 570, 16 Am. St. Rep. 503; Young v. Stickney,46 Or. 104, 79 P. 346.

In the case of Coulson v. Wing, 42 Kan. 508, 22 P. 570, 16 Am. St. Rep. 503, the court held that the question of a defect of parties could not be raised in the introduction of evidence. In the case of Railway Co. v. Hucklebridge, 62 Kan. 512, 64 P. 58, by a divided court, the Supreme Court of that state held that where the fact of a defect of parties neither appeared from the face of plaintiff's petition nor was it known to the defendant until it was disclosed at the trial on plaintiff's cross-examination, no objection then being made on the ground of a defect of parties plaintiff, but afterwards being first made upon demurrer to plaintiff's evidence, and further raised upon request for instruction, such question was reviewable on appeal. Chief Justice Doster, and Justices Cunningham and Ellis dissented from this holding, Johnson, Smith, Green, and Pollock, supporting the majority opinion. It is not necessary to determine whether we will follow the rule laid down in the case of Railway Co. v. Hucklebridge, supra, or that announced in the case of Coulson v. Wing, supra, for the reason that this case, as to procedure, is governed by certain general laws of the state of Arkansas as they appear in chapter 54, Mansfield's Digest of the laws of said state, in force at the close of the session of its General Assembly in the year 1883, and, as such laws of the state of Arkansas at the close of the session of the Legislature of 1883 had been construed by the highest court in that state, and were extended as such by act of Congress to the Indian Territory, and were so in force at the time of its admission into the Union as a part of the state of Oklahoma. Foreman v. Midland Valley Railway Co. (Ind. T.) 104 S.W. 808; National Live Stock Co. v. Taliaferro,20 Okla. 177, 93 P. 985.

In the case of Little Rock Ft. Smith Railroad Co. v. Dyer,supra, decided by the Supreme Court of the state of Arkansas at its May term, 1880, Mr. Justice Eakin, speaking for the court, said:

"Misjoinder of parties, however, is not good ground for motion in arrest of judgment. It may be set up in the answer, or if it appear from the pleadings, may be corrected by motion."

In the case of Bevins v. Barnett (Ark.) 22 S.W. 160, the rule laid down in the case of Little Rock Ft. Smith Railroad Co.v. Dyer, supra, is followed and amplified. Mr. Justice Mansfield speaking for the court, said:

"But the plaintiff waived the defect of parties by going to trial without objecting to it, and the court properly refused to permit the objection to be raised by an instruction to the jury."

The case of Taylor v. Southerland et al. (Ind. T.) 104 S.W. 874, is a case where an action was brought by D. A. Taylor, appellant, to recover from appellees rents on certain land wherein he claimed said rent by virtue of being grantee in a certain deed, where the principal landlord of the said appellees as tenants was grantor. The deed when introduced in evidence appeared to have been made jointly to D. A. Taylor and his wife, Vernie Taylor. Thereupon the appellees moved for a peremptory instruction, on the theory that on account of such defect of parties there was a fatal variance. On page 876, Mr. Justice Lawrence, speaking for the court, overruled the objection of appellees in the following language:

"The appellee in his brief gives considerable space to the discussion of the question that appellant cannot recover because of not sufficient parties plaintiff, and because of a variance with the proof. It is too late to raise those points for the first time in this court, for the reason that, if made below, the pleadings could have been amended and the error corrected under the provisions of the statute."

In that case the jury found in favor of the appellees, and, the appellees having moved for a peremptory instruction, it was their contention in the appellate court that the moving for a peremptory instruction, and saving the point in the motion for a new trial, raised the question in the court below.

The plaintiff in error in its brief urges that the plaintiffs below declared, not only for personal injuries to the wife, but also for the sum of $300, alleged to have been expended for medicine and a physician, for the care and treatment of the plaintiff, Myra Burgess. It is contended by plaintiff in error that, so far as the sum of $300 for medicine and treatment of a physician appeared, it could have been a joint action, and for that reason they could neither raise the question of misjoinder of parties by motion nor demurrer. But it was its duty, if it desired to raise such question, to move for plaintiff's complaint to have been made more definite and certain. And then, if it disclosed that there was a joint action for that sum of money so expended, the plaintiff in error, still further desiring to raise the question that the husband was an improper party plaintiff to be joined for the recovery for personal injuries to his wife, should have moved to strike out the cause of action for $300, for the reason that two causes of action, wherein the parties plaintiff were not identical, were improperly joined, and then to have moved to have stricken out W. N. Burgess as a party plaintiff, on the ground that he was neither a necessary nor a proper party to be joined with his wife for the recovery of personal injuries. No such course having been pursued on the part of plaintiff in error, neither the question of the improper joining of causes of action nor of misjoinder of parties plaintiff was properly raised to be reviewed in this court. Ball et al. v. FultonCounty, 31 Ark. 380; Bushey v. Reynolds, 31 Ark. 657; Walker v.Fuller, 29 Ark. 448; Salmon v. Mills, 49 Fed. 333, 1 Cow. C. A. 278; sections 5026, 5082, Mansf. Dig Ark. 1884 (sections 3231, 3287, Ind T. Ann. St. 1899); Riley v. Norman, 39 Ark. 158;Terry v. Rosell, 32 Ark. 478; Clements v. Lampkin,34 Ark. 598; Dyer v. Jacoway, 42 Ark. 186; Lyman v. Corwin, 27 Ark. 582;Organ v. Railroad Co., 51 Ark. 235, 11 S.W. 96; Burgett v.Allen, 54 Ark. 560, 16 S.W. 573.

But this would not be the rule of procedure in accordance with the laws of the territory of Oklahoma now in force in the state of Oklahoma. Section 4296, Wilson's Rev. Ann. St. Okla. 1903 (section 4974, Gen. St. Kan. 1905; section 92, Kan. Code Civ. Proc.), provides:

"When a demurrer is sustained on the ground of misjoinder of several causes of action, the court on motion of the plaintiff shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded with without further service."

Under the rule of procedure in the Indian Territory, prior to its admission into the Union, misjoinder of actions could only be raised by motion. Under the rule of procedure in the territory of Oklahoma prior to such time, which is the rule of procedure now in force in this state, it was proper to raise the question of misjoinder of actions by demurrer. This case is governed by the rule in force in the Indian Territory prior to the admission of the state into the Union.

The next proposition advanced by plaintiff in error is that the court erred in instructing the jury that it was the duty of the defendant to stop its trains at Provence a sufficient length of time, to give a passenger boarding said train a reasonable opportunity to do so. The plaintiff in error overlooks the fact that in its answer it admitted that, by and through its agents, it stopped said train at said town of Provence at said time. In addition to that, the undisputed testimony shows, and the jury by their general verdict so found, that at the time in question the plaintiff in error, through its servants and employes, stopped its passenger train at the station of Provence, before its platform, and that its porter stepped out on said platform and cried, "All aboard," and that the defendant in error Myra Burgess, in a reasonable way and without any negligence on her part, attempted to board said train, and that, on account of the train being started before it had been stopped a reasonable length of time for the passengers to board the same, the alleged accident, from which the jury found she sustained the injuries, occurred. In the case of Alabama Midland Railway Co.v. Johnson, 123 Ala. 201, 26 So. 160, Mr. Justice Tyson, speaking for the court, said:

"It was the duty of the defendant's servants in charge of the train, when it stopped at Ashford for the purpose of discharging and removing passengers to have kept it stationary for a length of time which was reasonably sufficient to enable all passengers to get off and on by the exercise of due care and discretion. Montgomery Eufaula Railroad Co. v. Stewart,91 Ala. 421, 8 So. 708; Birmingham Union Railway Co. v.Smith, 90 Ala. 60, 8 So. 86, 24 Am. St. Rep. 761."

And it is unquestionably "the duty of the servants of a carrier of passengers, especially when in charge of a railroad train, to stop it a reasonable time to allow passengers to board or alight with safety; and, in the absence of contributory negligence on the part of the passengers, the carrier is liable for injuries resulting from a failure to perform this duty." Moore on Carriers, § 38; Imhoff v. Chicago Milwaukee Railway Co., 20 Wis. 344; Keller v. Sioux City St. Paul Railroad Co., 27 Minn. 178, 6 N.W. 486; SouthernRailroad Co. v. Kendrick et ux., 40 Miss. 387, 90 Am. Dec. 332;Flint Pere Marquette Railway Co. v. Stark, Adm'r, 38 Mich. 715;Swigert v. Hannibal St. Joseph Railroad Co., 75 Mo. 477;Johnson v. West Chester Philadelphia Railroad Co., 70 Pa. 365;Keating v. N.Y. Central Hudson River Railroad Co.,49 N.Y. 673; Cent. Railroad Banking Co. v. Miles, 88 Ala. 256, 6 So. 697; Brooks v. Boston Maine Railroad Co.,135 Mass. 21. In view of the admissions of the defendant in its answer that, on the date complained of by the defendants in error, it was operating an engine and cars, constituting a passenger train, between the towns of Provence and Mannsville, and that by and through its agents it stopped said train at said town of Provence on that day, and the undisputed testimony showing that said train, as a passenger train, was stopped at said station of Provence, which was admitted to be a station, and that the porter of said train from the platform called "All aboard," there can be no contention that the jury were misled by the instructions of the court relative to the stopping of said train at said station. For the court, in effect, told the jury that, the plaintiff having stopped its train at said station to take on passengers, and it being claimed that the train was not stopped a sufficient length of time to allow Mrs. Burgess a reasonable opportunity to board same, and that, before she had such reasonable opportunity, the train started from said station, causing the alleged accident from which she claimed she sustained the alleged injuries, under such circumstances it was the duty of the railway company to stop its train a sufficient length of time to give a passenger boarding said train a reasonable opportunity to do so; that if the jury are satisfied from a fair preponderance of the evidence in the case that the plaintiff, Mrs. Burgess, was injured through the alleged carelessness or negligence of the defendant railway company, and without any contributory negligence on her part, the verdict of the jury should be for the plaintiff. That was a correct interpretation and exposition of the law relative to the case.

The next question raised is that the verdict cannot be sustained under all the facts in the case, because the damages assessed are excessive. The rule established in the Supreme Court of Arkansas is that a new trial will not be granted on appeal, on the ground of excessive damages, unless the verdict is so clearly and flagrantly excessive that the mind at once perceives that the verdict of the jury is grossly unjust.Peterson v. Gresham, 25 Ark. 380. An appellate court will not necessarily grant a new trial because it is not satisfied with the amount of the verdict. L. R. Junction Railway Co. v.Woodruff, 49 Ark. 381, 5 S.W. 792, 4 Am. St. Rep. 51; Bivens v.State, 11 Ark. 455. The rule is further stated:

"Verdicts assessing damages are set aside, on the ground that they are excessive, only when not supported by the proof, so as to become shocking to the sense of justice, or so excessive as to indicate passion or prejudice." (Tex. St. Louis Ry. Co. v.Cella, 42 Ark. 528.)

Subdivision 4 of section 5151, Mansf. Dig. Ark. 1884 (section 3356, Ind T. Ann. St. 1899), providing that a former verdict or decision may be vacated, and a new trial granted on the application of the party aggrieved, when excessive damages, appearing to have been given under the influence of passion or prejudice, are found against such parties, is identically the same as subdivision 4 of section 4493, Wilson's Rev. Ann. St. Okla. 1903 (section 5202, Gen. St. Kan. 1905; section 306, Kan. Code Civ. Proc.). Under numerous decisions of the Supreme Court of Kansas on appeal to that court, wherever it was evident that the judgment for damages was greatly excessive, or to such an extent as to indicate that it was given under the influence of passion or prejudice, the court never hesitated to reverse such judgment, or in lieu thereof require a remittitur. Swartzell v.Dey, 3 Kan. 244; Railway Co. v. Hand, 7 Kan. 380; Railway Co.v. Milliken, 8 Kan. 647; Railway Co. v. Weaver, 16 Kan. 456;Harvester Works v. Cummings, 26 Kan. 367; Board v. Kiser,26 Kan. 279; Curtis v. Hoadley, 29 Kan. 567; Railway Co. v.Peavy, 29 Kan. 170, 44 Am. Rep. 630; Railway Co. v. Peavy,34 Kan. 472, 8 P. 780; Railway Co. v. Dwyer, 36 Kan. 58, 12 P. 352; Bell v. Morse, 48 Kan. 601, 29 P. 1086; RailwayCo. v. Dwelle, 44 Kan. 410, 24 P. 500; Steinbuchel v. Wright,43 Kan. 307, 23 P. 560; Railway Co. v. Com'rs, 37 Kan. 567, 15 P. 499; Ft. Scott Railway Co. v. Kinney (Kan. App.) 53 P. 880; Railway Co. v. Richards, 58 Kan. 344, 49 P. 439;Railway Co. v. Ryan, 49 Kan. 1, 30 P. 108; Richolson v.Freeman, 56 Kan. 463, 43 P. 772; Drumm v. Cessnum,58 Kan. 331, 49 P. 78.

This rule does not militate against any of the prior decisions of this court. In numerous decisions it has held that wherever there was testimony reasonably tending to support the issues presented, the verdict would not be disturbed on appeal; but those decisions were based on subdivision 6 of section 4493, Wilson's Rev. Ann. St. 1903, supra, which provides for a new trial on the grounds that the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. In the case of Chicago, Rock Island Pacific Railway Co. v. Groves, 20 Okla. 101,93 P. 758, this court said:

"The question, then arises, when is a verdict contrary to law? Where the evidence on the trial establishes the fact so clearly and indisputably that the court may instruct the jury to bring in a particular verdict, but neglects to do so, and is not requested so to do, and the jury returns a verdict contrary to what the law directs in such a state of facts, then, and then only, can the court set aside the verdict of the jury."

In the case of Missouri, Kansas Texas Railway Co. v.Shepherd, 20 Okla. 626, 95 P. 244, this court cited with approval the case of Gulf, Colorado Santa Fe Railway Co. v.Ellis, 54 Fed. 481, 4 Cow. C. A. 454, wherein Mr. Justice Caldwell, speaking for the court, said:

"If there is any evidence, direct or circumstantial, fairly tending to support the verdict, it must stand. Every presumption is in its favor, and all doubts must be resolved in its favor. This court will not weigh or balance the evidence. And in cases like the one at bar, which turn on the question whether the party exercised ordinary care or was guilty of negligence, after the usual and appropriate definition of those terms by the court, it is the province of the jury to say, from a consideration of the evidence, whether in the particular case ordinary care was exercised, or whether there was negligence. In other words, what is ordinary care or what is negligence in the particular case is a question of fact for the jury, and not of law for the court." (See, also, Robinson et al. v. Roberts,20 Okla. 787, 95 P. 246).

The assignment in the motion for a new trial, in such cases, raising that question was under said subdivision 6, and the rule prevailing in this jurisdiction is that, where there is testimony reasonably tending to support the issues upon which a verdict is based, on appeal this court will not disturb the findings of the lower court. St. Louis San Francisco RailroadCo. v. Jamison, 20 Okla. 654, 95 P. 417. Although there may have been sufficient testimony to justify a verdict for the plaintiff on appeal, yet if that verdict is for damages, and the record shows that the damages were excessive, appearing to have been given under the influence of passion or prejudice, it is the duty of the appellate court, under such circumstances, to reverse and remand. Atchison,Topeka Santa Fe Railroad Co. v. Dwelle, 44 Kan. 410, 24 P. 500; Railroad Co. v. Cone, 37 Kan. 567, 15 P. 499;Steinbuchel v. Wright, 43 Kan. 307, 23 P. 560; Cassin v.Delaney, 38 N.Y. 178. In the case of Missouri Pacific Railway,Co. v. Dwyer, 36 Kan. 74, 12 P. 362, Chief Justice Horton, speaking for the court, said:

"In many of the states appellate courts have adopted the practice, where the damages are excessive, but the plaintiff is entitled to something substantial, of indicating the excess, and of giving or directing the trial court to give the plaintiff the option to remit the excess, and allow him to take judgment for the residue. Such action on the part of the appellate court is no invasion of the province of the jury, or of the rights of the defendant. Civ. Code, § 542; Branch v.Bass, 5 Sneed (Tenn.) 366; Baker v. City of Madison,62 Wis. 137, 22 N.W. 141, 583; McIntyre v. Railroad Co., 47 Barb (N Y 515; Murray v. Railroad Co., 47 Barb. (N.Y.) 196; s. c. affirmed in 48 N.Y. 655; Kinsey v. Wallace, 36 Cal. 462; Hahnv. Sweazea, 29 Mo. 199; Belknap v. Railroad Co., 49 N.H. 358; Collins v. City of Council Bluffs, 35 Iowa, 432;Durkes v. Town of Union, 38 N.J. Law, 21; Haselmeyer v.McLellan, 24 La. Ann. 629; Boyd v. Brown, 17 Pick. (Mass.) 453;Watson v. Railroad Co. (Pa.) 38 Leg. Int. 138."

Section 542 of the Civil Code of Procedure, referred to in the case of Missouri Pacific Railway Co. v. Dwyer, supra, is identical with section 556, Oklahoma Code Civ. Proc. (section 4754, Wilson's Rev. Ann. St. 1903). Section 1313, Mansf. Dig. Ark. 1884 (section 815, Ind T. Ann. St. 1899), is substantially the same as section 542, Kan. Civ. Code Proc.

A new trial will not be granted by the appellate court because it is not entirely satisfied with the amount of the verdict. L. R. Junction Railway Co. v. Woodruff, 49 Ark. 381, 5 S.W. 792, 4 Am. St. Rep. 51. In the case of Bodwell v. Osgood, 3 Pick. (Mass.) 379, Judge Wild stated:

"We do not doubt our power to grant new trials on the ground of excessive damages in cases of personal torts, and where they are clearly excessive, and greatly disproportionate to the injury proved, we are bound to interpose, but a strong case must be made out."

In the case of McNamara v. King, 7 Ill. 432, the court said:

"In actions for personal injuries courts will not set aside verdicts for excessive damages, unless the damages are so excessive as to make it manifest that the jury acted from passion, partiality, or corruption, and to enable the court to draw this conclusion it is not enough that, in their opinion, the damages are too high, or a much less damage would have been a sufficient satisfaction to the plaintiff."

In the case of Van Zant v. Jones, 3 Dana (Ky.) 464, the court said:

"In actions of trespass a new trial will not be granted on the ground of excess of damages, unless they are so excessive as per se to indicate passion or prejudice."

In the case of Worford v. Isbell, 1 Bibb (Ky.) 247, 4 Am. Dec. 633, the court said:

"In cases sounding merely on damages, without any medium of admeasurement, a court should be cautious in setting aside a verdict purely for excess. If, in such cases, a new trial is granted for such cause, the rule is that the damages must be such as that all men who hear the circumstances would pronounce the damages outrageously excessive at first blush."

In Edgtell v. Francis, 1 Man. G. (English Common Pleas) 222, the court said:

"To induce the court to grant a new trial on the ground of excessive damages, it must be shown that they are very excessive, and that a perverted view of the case has been taken by the jury."

In the case of Aldrich v. Palmer, 24 Cal. 516, the court said:

"In actions for personal torts the law does not attempt to fix any precise rules for the admeasurement of damages, but, from the necessity of the case, leaves their assessment to the good sense and unbiased judgment of the jury. Their verdict, as in all other cases, is subject to review by the court, but will never be disturbed unless the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate consideration of the jury. The leading object of such actions is to obtain reasonable and just compensation for the injury sustained, comprehending both the present and the future. But to ascertain what is a fair and just compensation in such cases is a judicial problem of difficult, if not impossible, solution. None, however, are more competent to its proper solution than the jury. Hence the courts have always sparingly exercised the power of granting new trials in such cases. Where the law furnishes no rule for the measurement of damages, their assessment is peculiarly the province of the jury, and the court will never interfere with their verdict merely on the ground of excess. Upon such a question the court has no right to substitute its opinion for that of the jury, merely because it happens to differ from theirs."

In the case of Illinois Central Railroad Co. v. Barron,72 U.S. 90, 18 L. Ed. 594, Mr. Justice Nelson, speaking for the court, said:

"If the suit is brought by the party, there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body. * * * There being no legal measure of damages for pain and suffering, the amount which a jury may award as compensation for these elements of damages in an action for a personal injury is peculiarly within their discretion. They should exercise a calm and dispassionate judgment, in view of all the facts established by the evidence, under the instructions of the court, supplemented by their knowledge, observation, and experience in the affairs of life, as applicable to the facts and circumstances proven. The parties are entitled to the judgment of the jury, and it not within the province of the court to decide upon the amount of damages."

In the case of Vicksburg Meridian Railroad Co. v. Putnam,118 U.S. 554, 7 Sup. Ct. 2, 30 L. Ed. 257, Mr. Justice Gray, speaking for the court, said:

"In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant's negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of earning by the wrongful act of the defendant. Wade v. Leroy, 20 How. 34, 15 L. Ed. 813; Nebraska City v. Campbell, 2 Black, 590, 17 L. Ed. 271; Ballou v. Farnum, 11 Allen (Mass.) 73; New JerseyExpress Co. v. Nichols, 32 N.J. Law, 166, 33 N.J. Law, 434, 97 Am. Dec. 722; Philips v. London Southwestern Railway, 4 Q. B. D. 406, 5 Q. B. D. 78, and 5 C. P. D. 280; s. c. 49 Law Journal (Q. B.) 233"

The same rule is announced in the case of South NorthAlabama Railroad Co. v. McClendon, 63 Ala. 266, and to the same effect in St. Louis, Iron Mountain Southern Railroad Co. v.Cantrall, 37 Ark. 519, 40 Am. Rep. 105. In the case of Johnsonv. Tillson, 36 Iowa, 89, which was a personal injury case, the court laid down the rule that the findings of the jury as to damages must be based upon and controlled by the evidence submitted for their consideration, in arriving at a conclusion as to the amount of the verdict.

For cases similar to the one in this record, where the court held verdicts in excess of the amount rendered by the jury in this case were not excessive, see Houston Texas Railway Co.v. Lee, 69 Tex. 556, 7 S.W. 324; Texas Pacific Railway Co. v.Davidson, 68 Tex. 370, 4 S.W. 636; Sears et al v. SeattleConsolidated Street Railway Co. 6 Wash. 227, 33 P. 389, 1081;Hinton v. Cream City Railroad Co., 65 Wis. 323, 27 N.W. 147;Groves v. City of Rochester, 39 Hun (N.Y.) 6; Miller v. BooneCounty, 95 Iowa, 6, 63 N.W. 352; Illionis Central Railroad Co.v. Treat, 75 Ill. App. 328, and Illinois Central Railroad Co.v. Robinson, 58 Ill. App. 181.

In this case the party claiming to have sustained damages was a young woman, 25 years of age, a wife and a mother. The testimony on her part tended to show, that without her fault, she sustained serious and permanent injuries that were painful, and that incapacitated her from attending to her own domestic affairs and duties. These injuries, according to such testimony, made her practically an invalid permanently. True, such testimony was strongly controverted on the part of the defendant; but the jury evidently believed the evidence on the part of the plaintiff, as they found the facts in favor of the plaintiff. It was peculiarly within the province of the jury to weigh the testimony; they saw the witnesses upon the stand; had opportunity to observe them as they testified; frankness, or want of frankness; knowledge or want of knowledge; opportunity to know, or not to know, the facts; and also the jury saw the injured party. The jury are presumed to be "of good character, of approved integrity, sound judgment, and reasonable information." (Mansf. Dig. Ark. 1884, § 3982 [Ind. T. Ann. St. 1899, § 2662]), and superintending this trial was the presiding judge, a man learned in the law, whose duty it was, imposed by law, to set aside this verdict or reduce its amount if the jury erred from prejudice or other cause, who has approved the same, and added his sanction to the award. The question was one peculiarly proper for the jury to determine; and, although the verdict is large, larger perhaps than any member of this court would, as a juror, have returned, we cannot, for that reason, say that such damages are so excessive as to be the result of bias or prejudice. Union Pac. Railway Co. v. Young,19 Kan. 493.

It does not sufficiently appear that the verdict assessing damages against the plaintiff in error was excessive, and that the same were given under the influence of passion or prejudice. The judgment of the lower court is affirmed.

All the Justices concur.