Bowman v. Burlington Northern, Inc.
| Decision Date | 26 October 1982 |
| Docket Number | No. 44116,44116 |
| Citation | 645 S.W.2d 9 |
| Parties | Vincent BOWMAN, Plaintiff-Respondent, v. BURLINGTON NORTHERN, INC., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Lucas & Murphy, St. Louis, for defendant-appellant.
Don B. Sommers, St. Louis, for plaintiff-respondent.
Plaintiff, Vincent Bowman, brought an action against defendant, Burlington Northern, Inc., to recover damages for injuries received while Bowman was working as a conductor for the defendant. Bowman brought suit against Burlington Northern pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (1976), charging the railroad company with negligence in failing to provide Bowman with a reasonably safe place to work. Bowman's petition alleged that Bowman stepped into a hole while performing his duties alongside Burlington Northern's tracks and suffered significant back and related injuries. The petition alleged that as a consequence of this accident he incurred medical expenses including pain and suffering and will lose future earnings due to his resulting disability. Bowman sought damages in the amount of $650,000.
The cause was tried in December, 1980. Upon conclusion of the trial, the jury returned a verdict in favor of Bowman and against the railroad in the amount of $275,000. After unavailing motions for judgment notwithstanding the verdict and new trial, Burlington Northern timely appealed to this court. We affirm.
Burlington Northern briefs four points on appeal. Its first three points contend that the trial court erred in refusing to grant Burlington Northern's motion for a mistrial on the grounds of prejudicial statements made to the jury by plaintiff's counsel during his opening statement, and because of the accompanying prejudicial evidence admitted at trial. The allegedly prejudicial statements and evidence concerned a $444,000 loss of future wages, an unpleaded prior knee injury suffered by Bowman while working for Burlington Northern, and unpleaded "slips" (falldowns) by Bowman during the course of his employment after the accident of July 16, 1976. Burlington Northern's fourth point on appeal is that the trial court abused its discretion in failing to order a new trial because the verdict was speculative since it included an award for Bowman's loss of future earnings.
In our review, we take the trial record as it stands and address only those issues properly preserved for review. Hensic v. Afshari Enterprises, Inc., 599 S.W.2d 522, 524 (Mo.App.1980). For reasons discussed within, we find that none of Burlington Northern's assertions of error were preserved for our review.
Two Supreme Court Rules provide for and limit our authority to review allegations of trial court error. Civil Rule 78.07, V.A.M.R., requires that allegations of error (with certain exceptions not applicable herein) must be presented to the trial court in a motion for a new trial. General allegations in the motion for new trial are adequate if based upon specific objections or requests made during the trial. Otherwise, specific allegations must be made in the motion. In either case, however, the allegations must be sufficiently definite to direct the trial court's attention to the particular acts or rulings asserted to be erroneous. Hartley v. Matejka, 585 S.W.2d 240 (Mo.App.1979); State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410 (Mo.App.1972); Pasley v. Newton, 455 S.W.2d 43 (Mo.App.1970). Civil Rule 84.13, V.A.M.R., declares simply that no allegations of error shall be considered on appeal except such as have been presented to or expressly decided by the trial court.
The rationale underlying Rules 78.07 and 84.13 has long been accepted in Missouri and was well stated in Fruit Supply Co. v. Chicago B. & Q. R. Co., 119 S.W.2d 1010 (Mo.App.1938), as follows:
Assignments of errors in a motion for a new trial to warrant a review thereof on appeal may in some instances be general and not specific, but they must always be direct and not left to be inferred from what is directly assigned. The office of a motion for a new trial is to gather together the rulings complained of as erroneous, and solemnly and formally present them, one by one, in black and white to the judge in order that he have a last chance to correct his own errors without the delay, or expense, or other hardships of an appeal. This much is required. Less does not preserve the rulings for review. (emphasis added)
See also Norfolk & W. Ry. v. Riss Intern. Co., 560 S.W.2d 332 (Mo.App.1977); Pasley v. Newton, supra; Schneider v. Southwestern Bell Telephone Co., 413 S.W.2d 16 (Mo.App.1967); State v. Northup, 367 S.W.2d 512 (Mo.1963). This principle is fundamental to our law of trial and appellate procedure and the Rules declare it is mandatory in character. Civil Rules 78.07 and 84.13. A party, thus, is precluded from urging on civil appeal any allegation of error not properly presented to the trial court in a motion for new trial, and any deficiencies in the motion may not be supplied by appellant's brief. Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo.1975); Hawkins v. Burlington Northern Inc., 514 S.W.2d 593 (Mo.1974); Rowden v. Amick, 434 S.W.2d 550 (Mo.1968), transferred to 446 S.W.2d 849 (Mo.App.1969).
The grounds of alleged error set out in Burlington Northern's motion for new trial are as follows:
1. That the evidence is wholly insufficient to authorize a verdict and judgment for the plaintiff against the defendant on plaintiff's cause of action.
2. That the verdict and judgment herein on plaintiff's cause of action is not supported by the evidence and is contrary to the law under the evidence.
3. That the verdict of the jury on plaintiff's cause of action is based on speculation and conjecture.
4. That the verdict of the jury for plaintiff is against the weight of the evidence.
5. That the verdict of the jury for plaintiff is excessive.
6. That the verdict of the jury for plaintiff is so excessive as to indicate that it resulted from bias, passion and prejudice on the part of the jury against the defendant.
7. That the Court erred in admitting, over the defendant's objections, incompetent, irrelevant, and immaterial evidence which was prejudicial to the defendant and which was offered by the plaintiff, and failing to strike out said evidence upon defendant's motion.
8. That the Court erred in excluding, over the defendant's objections, competent, relevant, and material evidence which was offered by the defendant and said exclusion was prejudicial, and in striking out said evidence upon plaintiff's motion.
9. That the verdict was the result of improper and prejudicial statements made to the jury by plaintiff's counsel during plaintiff's opening statement to which statements defendant's counsel duly objected at the time.
10. That the verdict was the result of improper and prejudicial arguments made to the jury by plaintiff's counsel, to which arguments defendant's counsel duly objected at the time.
Burlington Northern admits that its motion for new trial lacks any specific allegation of trial court error. Burlington Northern contends, however, that the motion contains general allegations of error sufficient to satisfy the Rules since specific objections were made at trial. We disagree.
Burlington Northern's motion fails to meet even the threshold requirement of Rule 78.07 which is to direct the trial court's attention to the particular acts or rulings asserted to be erroneous. Without an impermissible inference or aid extrinsic to the motion, there is no way to ascertain what particular evidence was improperly admitted or excluded and what prejudicial arguments were allegedly made by Bowman's counsel during opening argument. Fruit Supply Co. v. Chicago B. & Q. R. Co., supra; State ex rel. Highway Commission v. Heim, supra. The trial court here has been deprived of its "last chance to correct its own errors" in violation of the letter and the spirit of Rule 78.07. The averments of error in Burlington Northern's motion for new trial preserved nothing for review. Norfolk & W. Ry. v. Riss Intern. Corp., supra; State ex rel. Highway Commission v. Heim, supra; Pasley v. Newton, supra. 1 Hartley v. Matejka, 585 S.W.2d 240 (Mo.App.1979), relied upon by Burlington Northern, does not support its argument on appeal. Hartley does hold, as Burlington Northern contends, that general allegations in a motion for new trial are sufficient if based upon specific objections or requests made during the trial. However, Hartley states that even general allegations of error in the motion must be sufficiently definite to direct the trial court's attention to the particular acts or rulings asserted to be erroneous. As stated earlier, Burlington Northern's motion fails this threshold requirement. Hartley, therefore, offers no refuge for Burlington Northern's argument.
A second manner in which Burlington Northern failed to properly preserve error for appellate review under Rule 78.07 is that the points on appeal here were not raised in Burlington Northern's motion for new trial. Vaeth v. Gegg, 486 S.W.2d 625 (Mo.1972); Stearns v. Be-Mac Transport Co., Inc., 621 S.W.2d 539 (Mo.App.1981); Hensic v. Afshari Enterprises, Inc., 599 S.W.2d 522 (Mo.App.1980). Points 1, 2 and 3 on appeal complain that the trial court erred in failing to declare a mistrial because of prejudicial statements made to the jury by Bowman's counsel during his opening statement. Points 2 and 3 additionally claim error of the trial court in failing to declare a mistrial after it admitted the prejudicial evidence mentioned earlier. Point 4 claimed error by the trial court in upholding an award for Bowman's loss of future earnings. It is undisputed that Burlington Northern's motion for a new trial, quoted supra, is wholly...
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