Aut v. St. Louis Public Service Co.

• Decision Date: 21 May 1946
• Citation: 194 S.W.2d 753,238 Mo.App. 1136
• Parties: Edna R. Aut, Appellant, v. St. Louis Public Service Company, a Corporation, Respondent
• Court: Missouri Court of Appeals

194 S.W.2d 753

238 Mo.App. 1136

Edna R. Aut, Appellant, v. St. Louis Public Service Company, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis District

May 21, 1946

Appeal from the Circuit Court of the City of St. Louis; Hon. Waldo C. Mayfield, Judge.

Affirmed and remanded.

Mortimer A. Rosecan and Chelsea O. Inman for appellant.

(1) The verdict was not excessive and the trial court erred in holding that it was. (a) Where, as here, the injuries are such that jurors cannot determine their extent by observation, the court should not disturb the jury's finding supported by substantial evidence. Hoelzel v. C R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Schaefer v. Transamerican Freight Lines (Mo.), 173 S.W.2d 20; Orr v. Shell Oil Co. (Mo.), 177 S.W.2d 608; Philibert v. Benj. Ansehl Co., 342 Mo. 1239 119 S.W.2d 797. (b) The award is consistent with awards approved in cases involving similar injuries. Langston v Seldon-Breck Construction Co., 225 Mo.App. 531, 37 S.W.2d 474; Silsby v. Hinchey (Mo. App.), 107 S.W.2d 812; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Van Houten v. K. C. Public Service Co., 233 Mo.App. 423, 122 S.W.2d 868; Emerson v. Mound City (Mo.), 26 S.W.2d 766; Holman v. Terminal R. Assn. (Mo.), 125 S.W.2d 527; Tate v. Western Union (Mo.), 96 S.W.2d 364; Palmer v. Brooks, 350 Mo. 1055, 169 S.W.2d 906. (c) Appellate courts will not interfere with the verdict of the jury unless so grossly excessive as to shock the judicial conscience. Baker v. C. B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d 535; Kasperski v. Rainey (Mo. App.), 135 S.W.2d 11, 16; Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; Cruckett v. City of Mexico, 336 Mo. 145, 77 S.W.2d 464; Freeman v. Terminal R. Assn., 341 Mo. 288, 107 S.W.2d 36; Webb v. M. K. & T. R. Co., 342 Mo. 394, 116 S.W.2d 27; Olds v. St. Louis Nat. Baseball Club (Mo. App.), 119 S.W.2d 1000; Biener v. St. Louis Public Service Co. (Mo. App.), 160 S.W.2d 780; Yakubinis v. M. K. & T. R. Co., 137 S.W.2d 504, 506; Johnson v. Terminal R. Assn. of St. Louis (Mo.), 191 S.W.2d 676. The damages, if considered generous, cannot be said to be grossly excessive. (2) The trial judge was not justified in granting a new trial upon the issue of damages merely because he thought the verdict was too high. Such matters are cured in the trial and appellate courts by enforced remittitur. A favored object of the law is to terminate litigation. Cole v. St. L. S. F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344, 348; Turner v. Central Hdw. Co. (Mo.), 186 S.W.2d 603; Jones v. Pennsylvania R. Co. (Mo.), 182 S.W.2d 157, 159; Joice v. M. K. & T. R. Co. (Mo.), 189 S.W.2d 568, 576; Borgstede v. Wetterau Grocery Co. (Mo. App.), 116 S.W.2d 179; King v. K. C. Life Ins. Co., 350 Mo. 75, 88, 164 S.W.2d 458, 465. (3) The new Civil Code (Laws of Mo. 1943, sec. 115) did not confer upon the trial court any new power or enjoin any new duty as respects new trials not already existing. The trial court always had the power to grant a new trial upon the measure of damages only but the power may not be exercised without first offering an opportunity for a remittitur. R. S. Mo. 1939, sec. 1125; Cases cited under point 2, supra. (4) The appellate court is enjoined by statute to give such judgment as the trial court ought to have given. Laws of Mo., 1943, sec. 140(c); Cole v. St. L. S. F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344, 348.

Mattingly, Berthold, Jones & Richards and Douglas H. Jones for respondent.

(1) (a) There were no permanent injuries or disability. Therefore it was the duty of the court to set aside a verdict for $ 7500 which was clearly excessive. State ex rel. K. C. Pub. Serv. Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428; Derschow v. St. L. Pub. Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Colby v. Thompson (Mo. App.), 207 S.W. 73; Plank v. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Weiner v. St. Louis Public Service Co. (Mo.), 87 S.W.2d 191; Putnan v. Unionville Granite Works (Mo. App.), 122 S.W.2d 389; Clark v. Chicago, Rock Island, Pacific, Inc., Ry. Co., 318 Mo. 453, 300 S.W. 758, 765; Kelly v. Columbia Box Co. (Mo.), 248 S.W. 589; Cordray v. City of Brookfield (Mo.), 88 S.W.2d 161; Keeter v. Devoe and Raynolds, 338 Mo. 978, 93 S.W.2d 677; Walker v. St. Joseph Belt Ry. Co. (Mo. App.), 102 S.W.2d 718; Couch v. St. Louis Public Service Co. (Mo. App.), 173 S.W.2d 617. (b) Where the amount is not in accord with other awards for similar injuries, the trial court will reduce amount or award new trial where, as here, the verdict is so excessive as to shock the judicial conscience. Its discretion will not be interfered with by appellate court. (2) (a) The trial court has discretion to grant one new trial as against the weight of the evidence. Broadfor v. Kurn, 235 Mo.App. 1282, 146 S.W.2d 644; Interstate Oil Co. v. Equity Mutual Ins. Co. (Mo. App.), 183 S.W.2d 328; Bollinger v. Mungle (Mo. App.), 175 S.W.2d 912, 916; Shattlock Realty Co. v. Mays, 228 Mo.App. 1108, 63 S.W.2d 429, 432; State ex rel. Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3; Toedtman v. Grass (Mo. App.), 116 S.W.2d 153; Chitwood v. Davis Const. Co. (Mo. App.), 113 S.W.2d 1043; Security Bank of Elvins v. National Surety Co., 333 Mo. 340, 62 S.W.2d 708; Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839. (b) A grant of a new trial because the verdict is excessive is tantamount to a grant of a new trial as against the weight of the evidence. Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906; Reissman v. Wells (Mo. App.), 258 S.W. 43; Kanres v. Winn, 126 Mo.App. 812, 105 S.W. 1098; Stegner v. M. K. T. R. Co., 333 Mo. 1182, 64 S.W.2d 691; Hunt v. Gillerman, 39 S.W.2d 369, 327 Mo. 887; Herbert v. Hawley (Mo. App.), 32 S.W.2d 1095; Van Loon v. St. Joseph Light & Power Co., 271 Mo. 209, 195 S.W. 737; McFarland v. U.S. Mutual Accident Ass'n, 124 Mo. 204, 27 S.W. 436, 440. (c) Wherefore, the awarding a new trial on damages only, because the verdict of $ 7500 was excessive, is conclusive. (3) The trial court had power to grant a new trial on the measure of damages only. A remittitur is not a necessary prerequisite. The New Civil Code (1943, sec. 115) authorizes the court to grant a new trial upon the measure of damages only. Such power existed prior to the new Code. R. S. Mo. 1939, sec. 1125. And it was not predicated upon first ordering a remittitur. Busse v. White (Mo.), 287 S.W. 600; Laws of Mo. 1943, secs. 114, (d), 115, p. 388; Borgstede v. Wetterau (Mo. App.), 116 S.W.2d 179; King v. Kansas City Life Ins. Co., 350 Mo. 75, 88, 164 S.W.2d 458, 465; Joice v. M. K. T. R. R. Co. (Mo.), 189 S.W.2d 568, 577; Jones v. Pennsylvania R. R. Co. (Mo.), 182 S.W.2d 157; Zarisky v. Kansas City Pub. Serv. Co. (Mo. App.), 186 S.W.2d 854. (4) No remittitur can cure a large verdict resulting from passion and prejudice. Therefore, the action of the trial court in granting a new trial on the question of damages only is discretionary and must be sustained. Friesz v. Fallon, 24 Mo.App. 439; Doty v. Steinberg, 25 Mo.App. 328; Rottman v. Pohlmann, 28 Mo.App. 399; Clark v. Fairley, 30 Mo.App. 335; Koeltz v. Blekman, 46 Mo. 320; Gurley v. Railroad, 104 Mo. 211, 234, 16 S.W. 11; Schmitz v. Railroad, 46 Mo.App. 380; Unteberger v. Charff, 61 Mo.App. 102; Laws of Mo. 1943, sec. 140 (c), p. 395; Cole v. St. Louis-San Francisco R. R. Co., 332 Mo. 999, 61 S.W.2d 344, 348; Turner v. Central Hardware Co. (Mo.), 186 S.W.2d 603; Jones v. Pennsylvania R. R. Co. (Mo.), 182 S.W.2d 157, 159; Joice v. M. K. T. R. R. Co. (Mo.), 189 S.W.2d 568; Bente v. Finley (Mo. App.), 83 S.W.2d 155, 161; Clark v. Atchison & Eastern Brick Co., 333 Mo. 721, 62 S.W.2d 1079, 1082; Tilley v. Hendricks Estate, 229 Mo.App. 55, 76 S.W.2d 754.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

This is an action for damages for personal injuries. It was begun by Edna R. Aut as plaintiff originally against the St. Louis Public Service Company, a Corporation, and Ewald O. Hoelscher. In her petition plaintiff charged each of said defendants with negligence. A trial before the court and a jury resulted in a verdict in favor of defendant Hoelscher and against the defendant St. Louis Service Company assessing plaintiff's damages at the sum of $ 7500. St. Louis Public Service Company, hereinafter referred to as defendant, duly filed a motion for a new trial which the court sustained on specification No. 5 thereof, ordered a new trial on the issue of damages only and overruled the motion as to other specifications. Specification No. 5 was as follows: "Because the verdict is excessive." Plaintiff duly appealed from the court's order granting defendant a new trial.

Plaintiff, who is a deaf mute, testified by sign language through her son, Ferdinand Aut, as interpreter. She stated that she was employed by Barton Manufacturing Company as a machine operator earning $ 24.13 per week; that she had been employed by that company for fourteen years that on January 8, 1945, while she was a passenger on a motorbus of the St. Louis Public Service Company she sustained injuries which resulted from a collision between the motorbus which was being operated eastwardly on Carter Avenue in the City of St. Louis, and an automobile driven by defendant Hoelscher westwardly on Carter Avenue. The collision occurred at the intersection of Clay Avenue with Carter Avenue. Plaintiff testified that at the time of the accident she was returning to her home from work, having boarded the bus at Penrose Avenue and Kings-highway; that she was seated on the aisle seat with her back to the wall, near the front of the bus; that the bus was proceeding eastwardly on Carter Avenue and when it reached the intersection with Clay Avenue it collided with an automobile; that she was thrown to the floor, striking her...