
    The American Railway Express Co. v. Bender et al.
    
      Verdict — Trial court cannot increase amount thereof without consent, when — Damages for delay in express shipment— Testimony to be considered by jury in determining damages — Question for jury and not one of law, when.
    
    1. If trial court deemed verdict of jury contrary to the evidence, proper action was to set verdict aside, and court was without power to arbitrarily increase amount of x verdict without consent of party prejudiced.
    2. In an action against express company for delay in shipment of beans, jury had right to consider all testimony with respect to damages, and believe such parts as they saw fit and make their deductions therefrom.
    3. Evidence as to damage from delay in shipment of beans held sufficiently at variance to make it a jury question and not one of law.
    [1] New Trial, 29 Cyc. p. 1020 (Anno.); [2] Witnesses, 40 Cyc. p. 2594; [3] Damages, 17 C. J. § 361.
    (Decided March 1, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      
      Messrs. Maxwell S Ramsey, and Mr. Frank Gray-don, for plaintiff in error.
    
      Messrs. Moulinier, Bettman & Hunt, for defendants in error.
   Hamilton, J.

The action below was brought by the defendants in error here against the American Railway Express Company, plaintiff in error here, to recover damages claimed to have been suffered by reason of delay in a shipment of a consignment of beans from New Orleans to Cincinnati. The case was submitted to a jury, which returned a verdict in favor of plaintiffs against the express company in the sum of $500. No motion for a new trial was filed by either party. Within three days from the rendition of the judgment, attorneys for plaintiffs filed a motion asking the court to increase the verdict from $500 to $1,021.35. The trial court refused the amount of the increase asked for in the motion, but did increase the verdict to $918.13, and entered a judgment in favor of the plaintiffs for that sum. Exceptions were taken to this action of the trial court by counsel for the express company. The question here is the power of the trial court to add the sum of $418.13 to the verdict returned by the jury, and to enter judgment thereon.

It is argued in the brief for defendants in error that the verdict of $500, at the hands of the jury, was not in accordance with the undisputed evidence; that the undisputed evidence would require a verdict of $1,021.35. The opinion of the trial court, filed with the papers, is to the effect that the verdict of the jury for $500 was not in accordance with the undisputed evidence, but that a verdict of $918.13 would be proper thereunder, and the court, as heretofore stated, adopted its view and increased the verdict to $918.13.

The action of the trial court is without precedent, so far as we have been able to find. The main authority relied upon by the trial court and by counsel for the defendant in error is found in Scott on Fundamentals of Procedure in Actions at Law, 142, wherein the author says:

“When the jury awards inadequate damages, but the rest of the verdict is in no way tainted, it should be possible to compel the defendant to pay an adequate amount.”

Whether or not “it should be possible,” it is not necessary for us to discuss. The question here is, what power has a court, under its view of the evidence, to increase the verdict?

It may be said in passing that the case of Schweitzer v. Connor, 57 Wis., 177, 14 N. W., 922, is cited by the defendants in error as an authority. We have examined that case, and not only are the facts entirely different, but we doubt the soundness of the decision. As heretofore stated, no court in this state has been called upon to pass upon this exact question. The power of the court to interfere with the verdict of the jury as to the amount of damages, in addition to that provided by statute, is pronounced in the case of Pendleton Street Rd. Co. v. Rahmann, 22 Ohio St., 446. In the course of the opinion, the court says (page 448):

“Any excess in the verdict above what the evidence satisfactorily establishes, may, with the assent of the party in whose favor it is rendered, be eliminated by remittitur, and judgment entered for the residue. The exercise of such power is sanctioned on the theory that the excess arises from misapprehension of the law or the facts, or error in computation, not necessarily permeating and vitiating the entire verdict, and which it is competent to correct, with the assent of the party whom alone the correction could prejudice, by striking therefrom any distinct item, or excess in the computation of its value, appearing to be unsupported by the evidence.” (Italics ours.)

Further in the opinion in the above case, the court, in commenting on the effect of a verdict influenced by passion or prejudice states: “Without the consent of both, to a remittitur and judgment, the verdict, in such case, must be vacated.”

In the case of Holden v. Belmont, 32 Ohio St., 585, the court held in the syllabus: “In an action for the recovery of damages, tried by a jury, if the verdict shows upon its face that the damages assessed have been estimated upon an erroneous and illegal basis, such verdict should, on the motion of the party prejudiced thereby, be set aside * * * "

While these cases are all on the question of excessive verdict, we know no reason why the rules should not apply where the verdict is inadequate, if such it should be. The fifth section of the Ohio Bill of Rights provides: “The right of trial by jury shall be inviolate * * *.”

In the case before us, we have a trial by jury and a verdict, and that verdict, in effect, destroyed by the court substituting its verdict for that of the jury. It is true the court claims this to be on the undisputed evidence. If the verdict of the jury was contrary to the evidence, or had either party complained, the action of the court was to set aside the verdict. Further than this, it could not go. Moreover, on the evidence adduced, there is a question as to the proper amount of damage, depending upon what the jury might believe. It is true but one witness, Bender, one of the plaintiffs, testified as to the damage. His testimony is to the effect that the market value at the time the beans should have arrived was $3.75 per hamper; that when the beans did arrive, a day late, “We sold all we could from $2 up to $3.65, as many as we could.” He testified that the beans arrived Saturday morning, when they should have arrived Friday morning, and that there is a poor market on Saturday, as the wholesale grocers and the hucksters buy everything Friday for Saturday morning early trade. He stated they held some of the beans over until Monday, but deterioration had set in, and they sold some Monday and some Tuesday at a low price.

In another place in his testimony, Mr. Bender testified that he had seen beans sell at $4 on Saturday, and on Monday as low as $1.50. This statement seems not to be in accord with the former statement that there is a poor Saturday market.' He did state in his testimony the actual amount for which they sold the beans and what the market price was at the time they should have arrived; that this showed a loss of $1,021.35.

The jury had a right to consider all this testimony, and believe such parts as they saw fit and make their deductions. • Under a proper charge of the court, they arrived at the verdict returned. There is, therefore, sufficient discrepancy in the evidence to make it a jury question, and not one of law on undisputed facts. However that may be, under the law of Ohio the court was without power to arbitrarily increase the verdict of the jury without the consent of the party prejudiced.

Since there is no motion filed for a new trial, the judgment will be reversed and the cause re-manded to the court of common pleas,. with instructions to enter the judgment for the amount of the verdict returned by the jury.

Judgment reversed and cause remanded.

Bttchwalter, P. J., and Cushing, J., concur.  