Bierman v. Langston
| Decision Date | 09 September 1957 |
| Docket Number | No. 2,No. 45878,45878,2 |
| Citation | 304 S.W.2d 865 |
| Parties | John J. BIERMAN, Appellant, v. Roosevelt LANGSTON, Respondent |
| Court | Missouri Supreme Court |
Rexford H. Caruthers, George Gerhard, St. Louis, for appellant.
No attorney for respondent.
STOCKARD, Commissioner.
Plaintiff obtained a jury verdict against defendant in the amount of $12,500 for personal injuries resulting from an automobile accident. The 17th ground in defendant's motion for new trial was as follows: 'Because the verdict and judgment entered in this case are excessive under the law and under the evidence and indicate that said verdict and judgment were the direct result of bias and prejudice of the jury in favor of the plaintiff and against the defendant.' The trial court sustained the motion by this order: Plaintiff has appealed.
The automobile accident out of which this suit arose occurred on June 7, 1955. Plaintiff was the operator of one car and defendant the operator of the other. Plaintiff testified that as a result of the collision he was thrown to the right side of the car and that his arm hit the window and his head struck the window framing. He was knocked unconscious momentarily, but he immediately got out of his car and remained at the scene of the accident for about half an hour. Then he walked three or four blocks and took a bus to his place of employment as a city fireman and worked his regular 24-hour shift. Since, he has performed his work as a fireman in a satisfactory manner. He lost no time from work and lost no wages as a result of the accident. Immediately after the accident his right shoulder and the back of his head were sore. He also suffered headaches. The following day he started to feel dizzy and nauseated, and from that time until about a week later he would vomit occasionally. A few days after the accident he had an X-ray taken at the suggestion of a neighbor who was an attorney. This X-ray revealed no fractures. He also went to a doctor several weeks after the accident at the suggestion of his attorney. This doctor did not administer any treatment and did not testify. In November 1955, approximately five months after the accident, he first noticed that his hearing in the right ear was less than in the left. At the time of trial he still had headaches, but it had been two or three weeks since he had one. He still had dizziness when he had 'no reference point to touch or see,' but when he could see or touch something he was 'pretty well oriented.' Plaintiff testified that prior to the accident he had no dizziness or headaches and no hearing trouble. Plaintiff first saw Doctor Welch on December 16, 1955. This doctor performed several tests, and testified that at the time of his examination plaintiff had a definite loss of hearing in both ears, but more pronounced in the right ear where the loss was about twenty per cent and permanent. The petition claims a loss of hearing in the right ear only as a result of the accident. Doctor Welch also testified that it was his opinion that a 'traumatic injury due to concussion in the ear could be the etiology' of plaintiff's loss of hearing and hyper-irritability in the labyrinth of the ear, and that he 'would conclude that that trauma in that accident could be the direct cause of his trouble.' At no time did Doctor Welch or any other medical witness testify that in his opinion the collision did cause he loss of hearing in plaintiff's right ear. In fact, Doctor Welch testified that he could not tell when the trauma causing the condition occurred, and that it could have occurred prior to the accident in question.
Section 510.530 RSMo 1940, V.A.M.S., specifies that 'Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.' This order is the sole and only official repository for the court's grounds or reasons for sustaining a motion for a new trial. Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519; Hammond v. Crown Coach Company, 364 Mo. 508, 263 S.W.2d 362, 364. The order in this case clearly and unequivocally states that the new trial was granted because the amount of the verdict was excessive, and the trial court has a broad discretion in sustaining a motion for a new trial on this ground, which in effect is equivalent to the granting of a new trial on the ground that the verdict is against the weight of the evidence. Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566; Steurnagel v. St. Louis Public Service Company, 361 Mo. 1066, 238 S.W.2d 426[9, 10]; Stith v. St. Louis Public Service Company, 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972. However, the trial court prepared and filed a memorandum in which it purported to expain its reasons for granting the new trial, and the ground there advanced is at variance with the ground specified of record in the order. In the memorandum it is stated that there was no evidence of causation between the accident in which plaintiff was involved and the permanent impairment to plaintiff's hearing, or as stated in the memorandum, 'the evidence was insufficient for the submissibility of the issue,' and since the size of the verdict indicated that the jury awarded damages for permanent loss of hearing, the verdict was excessive. The granting of a new trial because the evidence was insufficient to submit an issue to the jury is not the exercise of judicial discretion but is the determination of a legal question. Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548. While the order of the trial court entered in compliance with Section 510.330 RSMo 1949, V.A.M.S., specifies a discretionary ground for granting...
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Moore v. Glasgow
...ground that the verdict is against the weight of the evidence [Greco v. Hendricks, supra, 327 S.W.2d loc. cit. 245(2); Bierman v. Langston, Mo., 304 S.W.2d 865, 867(3)]; and the action of the trial court will not be disturbed on appeal where the reviewing tribunal, not weighing the evidence......
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...661(2)) and could not have constituted a substitute for the order or been employed to oppose, contradict or dispute it. Bierman v. Langston, Mo., 304 S.W.2d 865, 867(5). Being invested with no right to 'go behind what is clearly expressed in the order' (State ex rel. State Highway Com'n. v.......
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Coit v. Bentz
...that where a new trial has been granted we view the error assigned by the court with a 'broad and liberal construction.' Bierman v. Langston, Mo., 304 S.W.2d 865, 868. This rule of liberality applies even when a new trial is granted for error in an instruction. Shaffer v. Sunray Mid-Contine......
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