Bales v. Jefferson City Lines
| Decision Date | 03 December 1945 |
| Citation | 192 S.W.2d 27,239 Mo.App. 264 |
| Parties | David L. Bales, v. Jefferson City Lines, Inc |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Cole County; Hon. Edward T. Eversole Judge.
Appeal dismissed.
Lewis H. Cook and Roy W. Rucker for appellant.
(1) It has long been recognized that it is the duty of the court to award a new trial where the verdict is grossly inadequate in amount. Busse v. White, 259 S.W. 458; Craton v Huntzinger, 187 S.W. 48. (2) In the absence of error in the admission of evidence, or the instructions, where the verdict is grossly inadequate, a new trial should be upon the issue of damages only. Sarisky v. Kansas City Public Service Co., 186 S.W.2d 854; Franklin v. Kansas City Public Service Co., 186 S.W.2d 546, 549; Sec. 140 (c), Laws of Missouri 1943, p. 395. (3) Where defendant in damage suit acquiesced in judgment for plaintiff, the judgment was conclusive as to his negligence and plaintiff's freedom from contributory negligence, and the only question on plaintiff's appeal was the adequacy of the verdict. Craton v. Huntzinger, 187 S.W. 48, 51.
Bushman & Buchanan, Sam Bushman and H. P. Lauf for respondents.
(1) To grant a new trial because the verdict is inadequate is equivalent to saying the verdict is against the weight of evidence. Hunt v. Gus Ullerman Iron & Metal Co., 37 S.W.2d 369, 327 Mo. 887; Stegner v. M. K. T. Ry Co., 64 S.W.2d 691; 333 Mo. 1182. That verdict is against the weight of the evidence is a matter addressed to the trial court which has a discretion which must be recognized in granting or refusing a new trial because of the size of the verdict. Cougland v. Trumbo (Mo.), 179 S.W.2d 705, 706; Cochran v. Wilson, 287 Mo. 210 230. And this is a discretion with which the appellate courts will not interfere or review unless arbitrarily exercised. Cougland v. Trumbo (Mo.), 179 S.W.2d 705, 707; Cochran v. Wilson, 287 Mo. 210, 230; Haven v. Mo. R. R. Co., 155 Mo. 216, 223, 232. (2) The plaintiff is not entitled as a matter of law to have a verdict for nominal damages set aside by the appellate court, unless his case is such that if the verdict had been for the defendant he would have been entitled to have it set aside. Haven v. Mo. R. R. Co., 155 Mo. 216, 223; Cochran v. Wilson, 287 Mo. 210, 230; Dowd v. Air Brake Co., 132 Mo. 579. (3) Where the logical finding which the jury could have made from the evidence is a suit for damages charged to be due to defendant's negligence, was either that the defendant was not negligent or that the plaintiff was guilty of contributory negligence, the court should consider the verdict for nominal damages as in effect a verdict for defendant. Haven v. Mo. R. R. Co., 155 Mo. 216, 223; Coleman v. Cole, 158 Mo. 253, 260. (4) Where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff. Haven v. Mo. R. R. Co., 155 Mo. 216, 223, 224; Overholt v. Veiths, 93 Mo. 422, 426; Dowd v. Air Brake Co., 132 Mo. 579; Fischer v. City of St. Louis, 189 Mo. 567, 580.
Plaintiff, D. L. Bales, sued defendant, Jefferson City Lines, Inc., for damages to plaintiff's truck caused when it was struck by defendant's bus, claiming damages in the amount of $ 2000. Defendant answered and generally denied plaintiff's allegations of negligence, charged contributory negligence, and counterclaimed, seeking a judgment against plaintiff for $ 1200 for damages to the bus. The verdict was for plaintiff in the sum of $ 5, and against defendant on its counterclaim. Plaintiff appeals and assigns the following error: "The court erred in refusing to set aside the verdict for $ 5.00 because, under the evidence and instructions, the verdict was for a wholly inadequate amount."
Notice of appeal was filed January 22, 1945. The transcript was filed in this court on February 13. The case was docketed for hearing October 2. On September 26 defendant-respondent served on appellant a copy of a motion to dismiss the appeal, together with notice that said motion would be filed in this court on September 27. Said motion to dismiss was duly filed herein on the last mentioned date. One of the grounds stated therein and urged in support of the motion is the alleged failure of appellant to file a "full transcript of the record in the cause," as provided in Section 135, page 393, Laws Missouri 1943.
The transcript is defective is that it does not contain a copy of the judgment appealed from. Rule 1.04 (a). It has always been required that the judgment or order appealed from be brought up. Under the old code it was included in the record proper, under the new code in the full transcript. We are required to dismiss the appeal Rule 1.15.
On October 1, 1945, the first day of our October term of court and the day before this cause was docketed for hearing, appellant filed herein the affidavit of one of his attorneys, wherein it is stated that said attorney received from the official reporter a typewritten transcript in this case and delivered the same to an attorney for respondent; that thereafter said attorneys, together, presented same to the judge of the circuit court for his approval and signatures; and that said approval and signature were obtained and the transcript filed and made a part of the record. He also filed, on the same day, the affidavit of the circuit clerk of the court where the cause was tried. The clerk stated therein that a judgment was rendered in this cause, in the circuit court of Cole County, on the 15 day of December, 1944; and attached to said affidavit is a copy of said judgment.
On October 2 appellant filed "Motion to have judgment included in transcript." In said motion he alleges that the judgment was duly rendered; that a certified copy thereof has been filed in this court; that "by inadvertence of the court, the attorneys representing both parties and the court reporter, the judgment . . . was not included in the transcript." He prays leave to insert the certified copy of said judgment in the transcript.
An appellant is responsible for the filing of the full transcript required under Section 135, supra. That responsibility may not be shifted to any one, except that the parties themselves may agree to the filing of an abbreviated transcript. [State v. Seehorn, 188 S.W.2d 657, l. c 659.] It is not suggested that this is an abbreviated...
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