Combs v. Combs, 45556
| Decision Date | 12 November 1956 |
| Docket Number | No. 45556,No. 1,45556,1 |
| Citation | 295 S.W.2d 78 |
| Parties | Delbert P. COMBS, Appellant, v. Joseph Lee COMBS, Respondent |
| Court | Missouri Supreme Court |
Sherman Landau, St. Louis, for appellant.
Moser, Marsalek, Carpenter, Cleary & Carter, Lee M. Carter, St. Louis, Paul E. Fitzsimmons, St. Louis, of counsel, for respondent.
Plaintiff sued to recover the sum of $35,000 for personal injuries sustained when an automobile operated by defendant, in which plaintiff was a passenger, crashed into a concrete bridge abutment on Highway No. 21 near Belleview, Missouri. The jury returned a verdict and judgment was entered in his favor for the sum of $15,000. Defendant's motion for new trial was overruled on condition plaintiff remit the sum of $5,000, which plaintiff refused to do, whereupon the motion was sustained and a new trial was granted defendant on the ground of excessiveness of the verdict. Plaintiff appealed.
The propriety of granting a new trial on the ground of excessiveness of the verdict is the sole question presented and a brief statement of the manner in which the collision occurred will suffice. As defendant drove the automobile northward on the east traffic lane of the highway, plaintiff was beside him in the front seat. Defendant went to sleep. The automobile veered across the highway and crashed into the west abutment, which was about 4 1/2 feet high and 16 to 18 inches thick, knocked the abutment into the stream below and the automobile was demolished. Further details of the occurrence are set forth in the companion case of Combs v. Combs, Mo., 284 S.W.2d 423.
The law by which the question presented is to be determined is well settled. It is the jury's province, in the first instance, to assess the amount of damages to which plaintiff is entitled, Cruce v. Gulf, M. & O. R. Co., 361 Mo. 1138, 238 S.W.2d 674, 681, and the trial court should not lightly set such an award aside, Lindsey v. Williams, Mo., 260 S.W.2d 472, 478. However, the trial court is vested with a wide discretion in ordering a new trial on the ground of eigher excessiveness or inadequacy of the verdict and its action will not be disturbed if it is reasonably supported by substantial evidence. See the collected authorities and decision of this court, en banc, in the case of Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 431, [9-13]. See also Nix v. Gulf, M. & O. R. Co., 362 Mo. 187, 240 S.W.2d 709, 712; Parks v. Thompson, 363 Mo. 791, 253 S.W.2d 796, 798; Lindsey v. Williams, supra; Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 612; Sanders v. Illinois Central Railroad Co., 364 Mo. 1010, 270 S.W.2d 731, 737.
The ruling in those cases is that when the trial court grants a new trial on the ground of excessiveness, its order is equivalent to the granting of a new trial on the ground that the verdict is against the weight of the evidence. In the exercise of that important function, it is the right and duty of the trial judge to consider and weigh the evidence in the light of his opportunity to hear and observe the plaintiff and all other witnesses who appear before him and to give to their testimony such weight and value as he deems it entitled. If the trial court determines that the injuries are not so serious or disabling as to warrant the award of the jury and orders a remittitur, as he did in the instant case, it becomes the duty of this court on appeal, not to weigh the evidence, but to determine only whether there is evidence that substantially and reasonably supports the view and finding of the trial court. If the evidence, viewed in the light most favorable to the court's ruling, reasonably supports the order, it is our duty to sustain it. If the evidence viewed in that light does not reasonably support the order, then it is our duty to set it aside and remand the cause with such directions as are appropriate.
Plaintiff, a graduate engineer, 32 years of age when injured on June 28, 1953, was in the employ of Pittsburgh Plate Glass Company. He was taken to St. Mary's Hospital in Ironton, where he remained from June 28, 1953, until July 2, 1953, on which latter date he was transferred to the Veterans Administration Hospital at Jefferson Barracks, Missouri, where he remained until July 14, 1953.
His record at St. Mary's Hospital showed: He was conscious on admission but at times showed slight confusion. There were lacerations of the forehead, left side of the head, left cheek, chin and right leg, which were repaired under anesthesia. His blood pressure was normal. The diagnosis was 'cerebral concussion' and his condition 'improved' during his stay at St. Mary's. The record at Veterans Hospital recited, as a part of his history, that he had suffered a mental illness about one and one half years prior to the accident, during which time he had been hospitalized for one month, received shock therapy and had been discharged in March, 1952, and that he said he had been free from any symptoms of such illness since his discharge. It also showed: Upon arrival, he complained of severe headaches and diplopia (double vision) when he looked downward following the collision. There were lacerations and contusions on his face, head, near the sternum (breastbone) and over his legs. There was no evidence of skull fracture. The vertebral bodies were of normal alignment and the intervertebral spaces of normal width. He had ecchymosis (extra-vasated blood beneath the skin) in the area of his right eye and a hemorrhage into the white of that eye. His vision was normal, except for occasional diplopia. The impression of the physician who examined his eyes was that there was some paresis (paralysis) of the muscles of the left eye and an 'error of refraction, type undetermined'. The doctor further noted on the record: 'We believe some of this will return spontaneously with the patient's general health improvement * * *.' On July 4th, two days after admission, plaintiff's condition was 'uneventful' except for episodes of mild diplopia. The record of July 11th reads: On July 14th, he was discharged to return in three months for re-evaluation. The posthospitalization record, dated October 19, 1953, showed 'head injury, contusions syndrome' (a group of symptoms, characterizing a disease or injury). The record of his progress stated:
Plaintiff testified: His salary at Pittsburgh Plate Glass Company was about $455 per month, which included one helf day of work on Saturdays at overtime rates. In August, 1953, the doctor for the Pittsburgh Plate Glass Company examined him and permitted him to resume his work. (His salary had been paid without interruption.) In December, 1953, plaintiff gave up his employment because he was unable to work six days per week. He was offered employment by Emerson Electric Company at $535 per month for a six-day week and by Douglas Aircraft at $545 per month for a six-day week, but could not accept due to his condition. Two months after leaving Pittsburgh Glass he went to work for Airtherm on a five-day week basis at a salary of $400 per month. He continued to suffer from headaches, was nervous and continued concentration bothered his head and he was weak. He left Airtherm in June, 1954, because he wanted to get away from that work and get something lighter, and went into the business of building homes for sale, where he could work when he felt like it, and he has been able to do that. He has been under the care of Doctors Agress, Moore and Ford.
At the trial, he said that he suffered from headaches, dizziness, nervousness and loss of coordination,...
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