Bell v. Bell's Estate
| Decision Date | 03 June 1963 |
| Docket Number | No. 23768,23768 |
| Citation | 368 S.W.2d 544 |
| Parties | Grace L. BELL, Plaintiff-Appellant, v. ESTATE of Dr. A. J. BELL, Deceased, S. Floyd Middleton, Administrator, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
R. S. McFarland, Nevada, for appellant.
A. E. Elliott, Nevada, for respondent.
This is an action by appellant, Grace L. Bell, against the estate of Dr. A. J. Bell, deceased, for the value of meals and personal services allegedly provided by her to Dr. Bell from September 1, 1953, to May 16, 1959.
By way of background, appellant is the wife of witness Arthur J. Bell, the son of Dr. A. J. Bell, of Nevada, Mo., who died at the age of eighty-nine on May 16, 1959. Dr. Bell left no other surviving children but did have surviving him at least one grandchild from another child.
During his latter years Dr. Bell suffered from arteriosclerosis, a duodenal ulcer and possibly Parkinson's disease. About September 1, 1953, Mr. Bell and appellant, moved from Sylacauga, Alabama to Nevada, Missouri, to look after Mr. Bell's aging mother (then living) and father. Mr. and Mrs. Bell moved into a house in Nevada which, according to some of the testimony, was owned by Dr. Bell. It was the practice of Dr. Bell after his wife passed away in September, 1953, to eat some of his meals at the home occupied by his son. He ate other meals in restaurants in Nevada. About March 1, 1959, Dr. Bell was hospitalized in Pulaski, Tennessee, for three weeks and Mr. and Mrs. Bell stayed in Pulaski, Tennessee, the following six weeks to help care for him. The other times in question Dr. Bell resided in Nevada, Missouri, apparently to the date of his death.
The cause was tried to a jury which returned its verdict in favor of appellant in the sum of $5,908.00, the full amount of the claim. Thereafter, in ruling on respondent's motion for a new trial, the trial court ordered, 'If plaintiff will in 10 days remit $2,416.00 of her claim and the jury's verdict, and consent to entrance of judgment in the amount of $3,492.00, motion for new trial will be overruled; otherwise motion will be sustained and a new trial will be entered herein.'
Appellant refused to remit, and after ten days had passed the trial court sustained respondent's motion for a new trial and granted a new trial 'because (1) the verdict of the jury is excessive, and (2) because the verdict of the jury includes items that are barred by the statute of limitations.'
Appellant's present contentions are that the evidence is such that the trial court was not justified in setting aside the jury's verdict as excessive, and that no part of the claim was barred by the statute of limitations.
The law concerning the right of a trial court to set aside a verdict on the ground the verdict is excessive and to order a new trial is well settled. In Union Electric Company of Missouri v. McNulty, Mo.Sup., 344 S.W.2d 37, 39, it was summarized,
The question for our determination is whether the trial judge was guilty of an abuse of discretion in granting a new trial on the ground the verdict was against the weight of the evidence in the respect that the verdict was excessive, and this the appellant has the burden of establishing on the record before us. Appellate courts determine the issue as one of law and do not weigh the evidence or pass on the credibility of the witnesses, and must view the evidence in the light most favorable to affirming the trial court's action. Huffman v. Mercer, Mo.Sup., 295 S.W.2d 27; Bierman v. Langston, Mo.Sup., 304 S.W.2d 865; Greco v. Hendricks, Mo.Sup., 327 S.W.2d 241. If the evidence viewed in such light does afford reasonable and substantial support for the trial court's order or remittitur, then there is no abuse of discretion, and the trial court's action must be sustained. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566.
In her 'List of Services Performed' appellant claims that from September 1, 1953, to October 30, 1953, she prepared and served Dr. Bell three meals for sixty days of a value...
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