tion; for by the last section of the act o'f 1891 said' 'section 5976 of the Genenal Statutes of 1889 is expreSsly repealed. when the gllllgE:l of the legislature is such as to admit of no two'meanings as to its import,it is the duty of the courts to be constrained by the interpreta. tion which will plainly effectuate the legislative intent, and preserye the knowbpublic policy of the state. The motion to strike out the first count of the answer is therefore overruled. 2. The second count of the answer, it seems to me, is quite unnecessary. It pleads matters evidently based on the first>section of said act of 1891. I take it that this section applies only to the instance where suit is brought to recover on the note or contract vitiated by usury. The Mtion here is replevin, to recover, the possession of the personal proI?ettymentioned in the mortgage given to secure fl.' ;dept affected by The plaintiff in this ac;:tion can only recover the specific chattel, of.ltseq\livalent in money, where the plaintiff is in position to so elect. Nojndgment in assumpsit or for the mortgage 'debt can be rendered Hamilton v. i Clark, 25 Mo. App. 428. So, if the derense illterpdsed by the defendant in the flrstcount of the answer be 'sustained by the proofs, it wilf put an end to this action. Neither the statute in question, nor any.known rule of procedute,entitles the defendanfto any relief oVer against the actor in such event. The motion to strike out the second count of the answer is sustained.
PULLMAN PALACE CAR
(Oircuit Oourt, D. Delaware. November 14,1892.)
1.' DEA.TH BY WRONGPUL ACT-EXCESSIVE DAMAGEB. . In a1:l a.ction against a raUroad c,ompany to. recover damages. for the. death. of plaintiff·'s husband, an ordinarY.laborer 80 years of age, earning about $400 a year, to induce the belief that the a verdict'Qf$7,Ooo is notso,excessiveand jury were influenced by pl'rtiality or a new trial should be refused.
SAME-RULE OF DAMAGES·
. In all action by a wife for causing the del'th of her husband, a dl'y laborer, the maxilI/.umrecovery is not necessarily limited to a Bum which would produce an annjlal income equal to one his ann,ual earnings.
At Law, Action. pyMaggie Harkins against the ,Pullman Palace .Car Company to. for the death of her husband. VtJrdict for ,plaintiff for $7!000.. <;)n motion for new trial. Refused.' George .1l.. .for the Illation. Levi 0. Bird, opposed.
WALES, District Judge: This was an action to recover damages for the death ofplaintiff'$ husband, cllused, it was alleged, by the negligence of the defendant. A trial was had at the present term, and the
PULLMAN PALACE CAR CO.
jury returned a verdict for the plaintiff for 87 A motion is now made, on part of the defendant, for a new trial on the ground of excessive damages. It is conceded that in cases of this character the principle on which damages are to be assessed is that of pecuniary injury, and that no compensation can be given for the loss of comfort or companionship; and it is claimed, in support of the motion, that Mrs. Harkins, on the most liberal estimate, would be fully compensated for the loss she has sustained by the payment to her of a sl1m of money which would yield an annual interest equal to the one half of her husband's yearly income at the time of his death. The deceased husband was an ordinary lahorer, 80 years of 'age at the time of his death, and had been earning $1.35 per day, or at the rate of $400 a year. A person of his age, aU other conditions being favorable, could purchase an annuity of $200 by the of the sum of $2,630, which latter sum, it is contended by defendant's counsel, should be the maximum damages to be allowed to the plaintiff. This basis of calculation is, however, much too narrow. The question for the jury was, what was the life of her husband worth to the plaintiff in a pecuniary point of view? And in answering that the jury were not necessarily confined to a calculation of the husband's wage-earning capacity only. The life of an honest, industrious, and kind-hearted husband and father, exclusive of mere affection and sentiment, has for his wife a money value in addition to what he may be earning by his personal labor or business. We do not know on what principle the jury proceeded in making up their verdict. It is not charged that they were actuated by improper motives, the only reason urged for the motion being that the damages are excessive, what-ever may have been the basis of calculation. Where this is the sale objection, the court must be clearly convinced that the sum awarded is grossly disproportioned to the loss sustained before grantiJlg a new trial; .and, although, in our opinion, a smaller sum would have been a sufficient .allowance, we are not able to say that this verdict is so excessive and exorbitant as to justify us in setting it aside. The verdict does not give the plaintiff so much more than she is fairly entitled to, and in the like proportion inflict a wrong and hardship on the defendant, as to offend the sense of justice of every reasonable person who may be familiar with all the facts of the case. The case was given to the jury with special instructions on the computation of damages, and we are not disposed to interfere with their verdict because they have made a somewhat higher award than we should have done. It is impossible to lay down any ex.act rule of assessment in actions of tort. The jury are the judges of the facts, and the court will not usurp their duty or nullify their judgment except in an. extreme case. A verdict is the expression of the sense of the jury on the questions of fact intrusted to their judgment for decision, .and it is only where they have exceeded all just and reasonable limits in giving damages that a court will interfere; and the excess must be glaring and flagrant to demand auch interference.· This verdict is. not ·so.1arge as to induce the belief that. the jury were influenced by partial-
prejudioe; nor so clearly wrong'lJ.nd unjustifiable 'as'to require a ity new trial. We;feelconstrained., therefore, to refuse the motion, and it is so ordered.
. (CircuU Oourt, S. D.New York. August 28, 1892.)
RAILllOAD COMPANIES-CONSTRUOTION CON'fRAOT-VALlDITy-INTJlREST 01' ORS. ' ." "", ,,',,' ,
A railroad' company, in form onl:v, by Its president I,mtered into a coustru,otiO.n 00.ntraot, whe.reb, de:te.ndants agreeli to complete. the. superstru.cture ... . of the road, furnisb eQllip ltby a certam date,. and in payment tberefor certificates !or $',000;000 of 1tsfull-paid stock and $I,'60Q"jlOO of first mortgage bonds, comprislllg the \3ILtire capital sfuck and bonds, were to be delivered to defendants. On the day Qfthe ClPntract, all,d contemporaneously therewith, defend. ants agreed with plaintiit, aotiDg 'on behalf of certain directors who were the actual stookholders, that if the contraot W1I8 complied with on the part of the company they wquld PllY to hio, one of. the net profits realized from the contract out of the stocks and bonds. The road was completed. Onllhundred and fifty thousand dollars was detertninedjwitbout formal accounting, as the proportion of net profitll was paid. Bel<4thatthough the contract was voidable, yet bema-an executed one, and nostobkhblders or creditors ob. ' jecting"defendants of the' amount which they agreed to pay complainant: i ' . · · · · . 2:' SAME-FALSE REPRESENTATrOlstS. .' . The alleged faot that detllndil:nts:were induced to enter Into the agreement as to Imlount of,profits by as to the amQunts remaininll' due for , right 01' way, anQ. as to tp,e amount of work done, could ,not entirely' release de, .fendants from liability, but coold only' go in reduction' of the recovery. '
In action. for remaildwr $lQO,Q(lQ dne plaintiJ! under t.he contract, after a trialoticupying 10 'days; a'<VlltdlcnOV8s' retilrned for plabitiff fot't.be full amount, , ljls& $7,500,. which SUJ;D repreB4ilnted one.b.alf of the amount paid by defendants for ,the assignment of a judglDe\lt .the road. Held that, .thill part of the. ver'dict'being a compromise, the samew'ould not beset aside'because defendants were .' not oredited With the wildIe BtQ.Ountohhejudgment.
,At Law·' Action QY :W:ilJard Robison against William V. McCracken & Co. On motion by defendants for a new trial. Denied.
, ,Wager Swayne, for phlintitl.: ,., M,uton,L. Southard, fordefendlUlte.
SHIPMAN, Circuit ia amotion by the ·defendants for a new trial of an action at la"", wherein a verdict was rendered for the plaintiff. ', ' ,In February, 1886, 'David Jr., Ashley, John CummingsiWilliam Baker, all of Toledo, Ohio; L.G,Mason, Edward Middleton, and A. W. Wrig,nt, 811 of the state of Michigan,-formeda corporation by the name of the Toledo; Saginaw & Muskegon Railroad Company, to build a railroad of 96 miles in lfmgth from Muskegon, point near Ashley, in that state, where it would intersect Mich.,