Clark v. Quality Dairy Co.

• Citation: 400 S.W.2d 78
• Decision Date: 14 March 1966
• Docket Number: No. 1,No. 51242,51242,1
• Parties: Bennett Marsh CLARK, (Plaintiff) Respondent, v. QUALITY DAIRY COMPANY, a Corporation, and William D. Kostedt, (Defendants) Appellants
• Court: Missouri Supreme Court

Page 78

400 S.W.2d 78

Bennett Marsh CLARK, (Plaintiff) Respondent, v. QUALITY DAIRY COMPANY, a Corporation, and William D Kostedt, (Defendants) Appellants.

No. 51242.

Supreme Court of Missouri, Division No. 1.

March 14, 1966.

A. H. Hamel, Clayton, for respondent.

Robert Nagel Jones, Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellants.

WELBORN, Commissioner.

This is an action for $26,457.00 damages for personal injuries and property damage, arising out of an automobile accident. A jury returned a verdict for defendants. The trial court, on its own motion, ordered a new trial. Defendants appeal from such order.

The issues here presented require only a brief statement of facts. On August 23, 1961, plaintiff was driving east on Route 30, in the vicinity of Murphy, in Jefferson County. He overtook and started to pass a delivery truck of defendant Quality Dairy Company operated by its employee, defendant Kostedt. As plaintiff started to pass the truck, Kostedt started to make a left turn. Plaintiff swerved his vehicle and ran into a ditch on the left side of the roadway, his vehicle overturning several times, resulting in injury to plaintiff.

Plaintiff's submission to the jury submitted as negligence Kostedt's failing to keep a careful lookout, failure to signal intention to turn, failure to give way to the right in favor of plaintiff's overtaking vehicle on plaintiff's audible signal, or by moving the truck from its proper driving lane when such movement could not be made in safety. Defendants submitted plaintiff's contributory negligence in driving at an excessive speed or failing to signal properly his intention to pass the truck. The only eyewitnesses to the occurrence were plaintiff and Kostedt. Each testified to facts to support the respective submission of plaintiff and defendants. Appellants, by their brief and by their counsel on oral argument, concede that plaintiff's testimony made a submissible case on the issue submitted by plaintiff.

The trial court ordered a new trial on the grounds that the verdict in favor of defendants 'is against the evidence and the greater weight of the evidence and the law under the evidence * * *.' Acceding to appellants' contention that the only substantial basis of the trial court's ruling was the finding that the verdict was against the weight of the evidence, we are called upon by appellants to re-examine the long-established standard of appellate review of an order such as that here under attack. Appellants acknowledge that 'the present holdings of this Court and other courts of appeal in Missouri' warrant plaintiff's argument that 'in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted.' Madsen v. Lawrence, Mo.Sup., 366 S.W.2d 413, 416(5, 6). Appellants argue that the appellate court's position is based upon policy, not upon lack of jurisdiction, and that such policy should be re-examined because it is logically and reasonable indefensible. According to appellants, the trial court can exercise sound discretion in granting a new trial as such provided only if the evidence was insufficient to warrant the verdict. 'Whether or not the evidence was sufficient to establish the use of sound discretion as the basis for the order, depends upon the character of evidence involved. To make this determination necessarily demands a review of the evidence.' However, since appellate courts uphold the trial court's exercise of discretion if plaintiff made a submissible case, '* * * there can never be a determination of whether or not a trial court abused its discretion under the circumstances here involved. * * * Therefore, the present policy creates a duty upon this Court to determine whether or not the new trial was granted on the basis of the use of sound discretion by the trial judge; and at the same time makes it impossible for it to perform that duty.'

Early in our state's judicial history, the appellate courts laid down the policy of declining to weigh the evidence in cases before them on appeal. An early exposition of the policy and the reasoning behind it is found in Garneau v. Herthel, 15 Mo. 137, decided in 1851. There, the court stated:

'The only questions submitted for our consideration are, whether the Court of Common Please erred in refusing to grant the defendant a new trial, on the ground that the verdict was against the weight of evidence; and in overruling his motion in arrest of judgment. The court has become entirely satisfied that the exercise of the power of revising the actions of the different courts of original jurisdiction, upon motions for a new trial, on the ground that the verdict is against evidence or against the weight of evidence, would often produce great injustice. All persons, familiar with trials, must know that it is utterly impossible to bring before this court, upon paper, a real representation of the trial as it took place. The manner, the temper, the character of witnesses as known to the jury, cannot be spread upon paper; and the words of a witness, in whose testimony neither the jury nor the court had the slightest confidence, will read as well, and appear entitled to the same consideration when written upon the record, as would the language of the most impartial upright witness in the world. We cannot suppose that the courts, trying causes, are deficient in the firmness necessary to set aside verdicts when they are found, either under the influence of prejudice, or are opposed to the weight of the evidence. We have the confidence which the law entertains, that the judges, attending to the trials as they progress before them, will freely apply the remedy of granting a new trial, in every case where injustice is done by a verdict, found either without evidence or contrary to the weight of evidence. From these considerations, that court will decline interfering with a judgment, upon the ground, that the court rendering it, has granted or refused a new trial, because of the verdict's being against evidence, or against the weight of evidence.'

In Reid v. Piedmont & Arlington Life Ins. Co., 58 Mo. 421, decided in 1874, Judge Wagner stated (l.c. 429--430):

'Defendant has filed its motion for a re-hearing in this case, on the ground that the verdict of the jury was unsupported by the evidence and in direct conflict with it. It is needless to repeat what has been so often said, that this court will not undertake to weigh the evidence. Such a course would be entirely inappropriate in an appellate tribunal. The opportunity for judging of the credibility of witnesses is entirely denied to us. Hence, when there is any evidence to support the verdict we cannot interfere. The evidence may be slight, and it may be contradictory, but we cannot tell the proper credit that should be attached to it. * * *

'But in this connection, it is well enough to make another remark. Constant complaints are reaching us that in some of the Circuits the rule adopted here is followed, and that the judges consider themselves bound thereby. But this is founded in an entire misapprehension. The trial courts have opportunities which we have not. In witnessing and presiding over the trial, they are put in possession of facts which we cannot possibly attain. They see the witnesses; can form an opinion respecting their veracity; can observe whether they are biased or prejudiced; can notice their willingness or unwillingness, and a great many other circumstances which it is impossible to transfer to paper. They can also form a correct conclusion as to whether any improper influences operated on the jury in producing the verdict. All these considerations render it peculiarly proper that the question of granting new trials, on account of the verdict being against the weight of testimony, should be exclusively exercised by the court trying the cause, and where the trial court is of the opinion that the verdict is not supported by the evidence, or is against the weight of evidence it should never hesitate in exercising the power and giving the aggrieved party a new trial.'

After the amendment of the practice action in 1891 (Laws of Mo., 1891, p. 70) making an order granting a new trial an appealable order, appeals from orders awarding a new trial on the grounds that the verdict was against the weight of the evidence became frequent. The appellate courts adhered to the policy previously announced in cases of denial of the motion. In Haven v. Missouri R. Co., 155 Mo. 216, 55 S.W. 1035, (l.c. 1038--1039), Judge Marshall, in speaking of the appellate court's function under that statute, stated:

'* * * (T)he majority opinion in Thompson v. (Metropolitan St.) Railway Co., 140 Mo. 125, 41 S.W. 454, seems to proceed upon the theory that on appeals under the acts of 1891 and 1895 this court will treat the case just as it formerly did cases that came here after final judgment, and will not interfere with discretionary rulings of the trial court, and will not weigh conflicting evidence, but will reverse the judgment if there is no substantial evidence to support it, or if errors to law were committed by the trial court; while, on the other hand, the opinions in Candee v. (Kansas City & I. Rapid Transit) Railway Co., 130 Mo. 142, 154, 31 S.W. 1029, and Ittner v. Hughes, 133 Mo. 688, 34 S.W. 1110, hold that this court, on such appeals, will not 'indulge the presumptions which obtained prior to its enactment' (referring to the acts of 1891 and 1895), 'and which do not at all costs with its express terms,' and that the prerogative and obvious duty of this court in such cases is to review the action of the trial court, 'and determine from the...