Combs v. Combs
| Decision Date | 14 November 1955 |
| Docket Number | No. 2,No. 44771,44771,2 |
| Citation | 284 S.W.2d 423 |
| 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, for respondent.
BOHLING, Commissioner.
Delbert P. Combs sued Joseph L. Combs for $15,000 damages for the wrongful death of Juanita Combs, plaintiff's wife, the result of the negligent operation of an automobile. The jury returned a verdict for $3,000 and judgment was entered thereon. Plaintiff sought a new trial on the ground the $3,000 judgment was grossly inadequate. His motion was overruled, and he appeals.
The question of our jurisdiction of the appeal arose in the course of the argument on submission here. Our rulings are that upon a plaintiff's appeal on the ground the judgment is inadequate, the amount in dispute, absent exceptional circumstances, is the difference between the amount prayed for and the amount of the judgment in the trial court. Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 482; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, 470; Coghlan v. Trumbo, Mo.App., 171 S.W.2d 794; Id., Mo., 179 S.W.2d 705. We have jurisdiction of the appeal.
Plaintiff and defendant are brothers, living in St. Louis and Clayton, Missouri, respectively. On Saturday, June 27, 1953, plaintiff and defendant, with their wives, went to Clearwater Lake near Piedmont, Missouri in plaintiff's Chevrolet sedan for the week end. Plaintiff and his brother usually took turns driving on such occasions. Plaintiff drove on the trip to the lake, arriving there about 9 p. m. They arose early Sunday morning, about 5 a. m., and fished until about 1 or 2 p. m. They started home about 2 or 3 p. m. Defendant was driving on the return trip. Plaintiff and defendant were seated on the front seat. Their wives were on the rear seat, plaintiff's wife being seated back of the driver. Plaintiff testified they were relaxed and that he went to sleep after passing Piedmont. It was a very hot afternoon and they passed through a light drizzle near Ironton. Defendant's wife testified she 'dozed off' prior to the accident.
While proceeding northwardly over Highway 21, a black top highway, 22 feet wide, the Chevrolet ran into the west wing of a concrete bridge over a small creek on a curve in the highway near Belleview about 4:10 p. m., knocking the wing of the bridge into the creek. The bridge was narrower than the highway, its abutments being 18 feet apart. State Trooper Frank Sheible, who estimated he arrived at the scene ten or more minutes after the accident, testified he found no skid marks on the pavement, and that there were no obstructions to the view of a driver at that place. The Chevrolet was demolished. All the passengers were injured and all, with the exception of defendant, were unconscious. They were taken to a hospital in Ironton, Missouri, where plaintiff's wife died Monday, June 29, 1953.
Juanita and plaintiff were married in June, 1952. She was 39 and plaintiff was 33 at the time of her death. Her life expectancy was 28.28 years. Plaintiff was a graduate engineer of the University of Arkansas, and was employed as an engineer for the Pittsburgh Plate Glass Company in Crystal City.
Plaintiff testified that his wife was a very strong and healthy person. She was 'very good natured,' had a 'very good disposition,' and 'we got along swell.' She operated a beauty shop, where three other girls were employed, in St. Louis. It was closed on Mondays. He estimated that she earned on the average between $300 and $400 a month; and that on a busy day she would do $45 or $50 worth of work while the next girl would do $15 to $20 worth of work. They put their money together, used the checking account to pay the bills, and put the balance in savings. She performed all the housekeeping duties, the cooking, baking, washing and ironing. Plaintiff helped her at times with the table and the dishwashing, and usually with the laundry but not the ironing. He testified the doctor's bill for his wife was approximately $100; the hospital bill was $59.20, and the funeral expenses were $1,230.85, total $1,390.05.
Mrs. Pauline Combs, the wife of defendant, testified for plaintiff. She had known Juanita for about a year and a half, and corroborated plaintiff's testimony that plaintiff's wife was a good housekeeper, a pleasant person, and plaintiff and his wife were good companions. She testified that it would require about seven days a week for someone to come in and do the housework Juanita did at plaintiff's home, costing $6 to $8 a day, plus 40 cents car fare and $1.50 a day for food consumed; and that it would cost $10.80 more a week for someone to do the washing and ironing.
Plaintiff contends this court 'in the instant appeal should set aside the amount of the judgment and enter instead a judgment in favor of plaintiff for $15,000,' citing section 512.160, subd. 3, RSMo 1949, V.A.M.S.; Smith v. Mederacke, 302 Mo. 538, 259 S.W. 83, 88; Borrson v. Missouri-Kansas-Texas R. Co., Mo., 161 S.W.2d 227. He states this court has assessed in innumerable cases the proper amount of damages, citing McDill v. Terminal R. R. Ass'n, Mo., 268 S.W.2d 823, 829, and acted under the express provisions of section 512.160, subd. 3 in so doing. Said subsection, so far as material, reads (emphasis plaintiff's):
In the Smith case, supra, a judgment for $10,000 in favor of two minors, 11 and 13 years old, was held not excessive for the death of their widowed mother, their sole support; and in the Borrson case, supra, no issue was raised or discussed respecting the amount of a judgment for $10,000 in favor of three minors for the death of their mother in an automobile-train crossing collision in which their father also lost his life. In the McDill case a $10,000 judgment for personal injuries was affirmed for $8,000 upon condition that plaintiff enter a remittitur of $2,000. Section 512.160, subd. 3 is not mentioned in the opinion. Fixing the amount of the damages in a tort action rests in the sound discretion of the trier of the facts, requiring the weighing of the evidence on that fact issue. It is stated in Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 495, that in sustaining a judgment on condition of a remittitur, the appellate court 'does not award or fix the damages but only says that if the jury had given such maximum amount then its verdict could have properly been permitted to stand.' In ordering a remittitur the court allows the judgment to stand for a part of the amount found by the jury but if a court increases an inadequate recovery it adds something not within the terms of the verdict. Burdict v. Missouri P. R. Co., 123 Mo. 221, 241, 27 S.W. 453, 458, 26 L.R.A. 384, 45 Am.St.Rep. 528. Consult also on remittiturs Cook v. Globe Printing Co., 227 Mo. 471,...
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