
    No. 565
    BENDER STREIBERG & CO. v. AMERICAN RY. EXPRESS CO.
    No. 19745.
    Supreme Court
    On motion to certify.
    Dock. April 5, 1926;
    4 Abs. 238.
    355. DAMAGES — Where there are two issues in a case, one as to liability as for unreasonable delay by carrier; and amount of damages the measure of which is a definite one; evidence.of damages being uncontradicted and the jury brings in a verdict for less than lowest amount testified to, may the trial court enter a judgment larger than the ver-' diet but for the lowest amount under any view of the testimony.
    Attorneys — Moulinier, Bettman & Hunt for Bender Co.; Maxwell & Ramsey for Express Co.; all of Cincinnati.
   Bender, Streibig & Co. purchased 700 hampers of beans from New Orleans to be shipped by express so that they might arrive jn Cincinnati early. The American Railway Express Co., the carrier failed to maintain its schedule or deliver within a reasonable time for an express shipment.

The Bender Co. brought the action in the Hamilton Common Pleas against the Express Co. and a verdict for $500 was returned in favor of the plaintiff. It was claimed that the beans were sold for less than the market value on the day they arrived, (after the regular market day) and were sold for even less on the following Monday. Judgment was entered for $918.13 in favor of the plaintiff by the court.

Error was prosecuted and the Court of Appeals held that the trial court had no power to give judgment for more than the verdict. From the decision of the Court of Appeals the case was taken to the Supreme Court on a motion to certify and it was claimed that the judgment rendered by the Common Pleas should stand for the reason that the verdict of the jury was for an amount “inadequate under any view of the testimony” while that of the court was for an amount larger than the verdict but for the lowest possible amount under any view of the testimony.

It is contended that the only undisputed issue of fact, that of reasonableness of delivery, was found in favor of the plaintiff; and it had therefore become the province of the Court to enter judgment for the minimum amount of the undisputed evidence bf the amount of damage. “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.”

It is claimed that the decision on issues of fact Tn which there is conflicting evidence is for the jury; but the application of law to undisputed facts is the province of the court.  