Davidson v. Schneider, 48418

• Decision Date: 11 September 1961
• Docket Number: No. 48418,No. 2,48418,2
• Citation: Davidson v. Schneider, 349 S.W.2d 908 (Mo. 1961)
• Parties: Edwin A. DAVIDSON, Appellant, v. W. H. SCHNEIDER, Respondent
• Court: Missouri Supreme Court

Page 908

349 S.W.2d 908

Edwin A. DAVIDSON, Appellant, v. W. H. SCHNEIDER, Respondent.

No. 48418.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 9, 1961.

Keyes, Bushman & Hearne, Sam Bushman, John L. Hearne, Jefferson City, and Tom R. R. Ely, St. Louis, for appellant.

Luke, Cunliff & Wilson, Paul H. Chavaux, St. Louis, for respondent.

BARRETT, Commissioner.

In this action against W. H. Schneider, Edwin A. Davidson sought to recover $35,000 damages for personal injuries and $250 for injury to his automobile. The action arose out of a collision of Davidson's and Schneider's automobiles on U. S. Highway 66, near Eureka, on September 23, 1956. Upon the trial of the cause in April 1960, a jury returned a verdict in favor of the plaintiff, Davidson, in the sum of $531.50 and he has appealed. His principal claim is that by reason of the inadequacy of the verdict he is entitled to a new trial. In this situation the amount in dispute is the difference between the total sum claimed, $35,250, and the sum recovered upon the trial, $531.50, and jurisdiction of the appeal is appropriately in this court. Const.Mo. Art. 5, Sec. 3, V.A.M.S.; Laws of Mo.1959, S.B.No. 7; Conner v. Neiswender, 360 Mo. 1074, 1076, 232 S.W.2d 469, 470; Coghlan v. Trumbo, Mo.App., 171 S.W.2d 794.

Specifically, it is the appellant's contention that the verdict of $531.50 'is so shockingly inadequate that it can be explained only as a result of bias, partiality, prejudice, or passion, and there is not substantial evidence to sustain the amount of the jury's verdict; and the trial court abused its discretion in overruling plaintiff's motions for new trial' and, therefore, it is said that this court should set the award aside and grant him a new trial. The quotation from the appellant's brief paragrases in general the rules concerning inadequate verdicts and this court's function and duty in reviewing awards claimed to be inadequate. Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 11-12, 212 S.W.2d 915, 918; Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Conner v. Neiswender, supra; annotation 16 A.L.R.2d 393, 401; 47 L.R.A. 33; 39 Am.Jur., Secs. 145, 147, pp. 151, 153. The parties are not in disagreement as to the applicable substantive rules and it is not necessary to repeat them here. As has been pointed out in a thoughtful opinion, however, the court has not always been consistent in its statement or application of the rules and in addition to these usually stated principles 'an appellate court may order a new trial on the weight of the evidence when the verdict (by reason of inadequacy) clearly betokens passion and prejudice.' Hemminghaus v. Ferguson, 358 Mo. 476, 485-487, 215 S.W.2d 481, 485-486; Sup.Ct. Rule 78.01, V.A.M.R.; Coghlan v. Trumbo, Mo., 179 S.W.2d 705.

In addition to relying on these general rules, the appellant contends that certain errors in the trial of the case 'reflect some light to show the bias, partiality and prejudice of the jury in making its award of damages.' It is said that the effect of the trial court's erroneous rulings was 'to deprecate and disparage the value of plaintiff's claim for damages for personal injuries and to create an atmosphere wherein bias and prejudice against the plaintiff did develop and take ascendency over the evidence and the proper instructions of the court in the minds of the jurors, or, at least, influence them in awarding plaintiff his damages.' The plaintiff claims that these errors point up the fact that the meager award undoubtedly resulted from passion and prejudice. It is not necessary to examine each of these four supporting points in detail, it is sufficient to indicate that they were not manifestly inflammatory, or, conceding that technically the court erroneously ruled as to some of them, that in themselves they are not sufficiently prejudicial to command the granting of a new trial.

One of the matters pointed to is the refusal of the court to permit plaintiff's counsel on voir dire to inquire of the jury panel whether any of them were employees of or stockholders in the Sun Insurance Company of New York. The court's refusal to permit this particular inquiry, incidentally, was due to the manner and time in which counsel proposed to ask the question--before the court and jury after he had entered upon his examination without preliminary inquiry or request from the court. The plaintiff merely asserts the right to propound this question, there is no attempt to demonstrate just how the court's refusal to permit this particular inquiry engendered passion or prejudice on the part of the jury against the plaintiff, and it is not immediately apparent how it could or did have that effect. It is objected that the court refused to permit the plaintiff, Davidson, to testify that Dr. Vilray P. Blair had discussed with him the possibility of surgery. While the plaintiff was not permitted to testify to this particular discussion, Dr. Blair testified to it repeatedly. Dr. Blair's conclusion is sufficient to illustrate the vital point: 'His present statuts wouldn't require it. I testified before that if he would injure his back again and it is weaker, he might require it or not. And it is certainly a hard thing to prognosticate on. I wouldn't want to tell the man 100 per cent yes or no. But he has responded to the treatment I outlined and, at the present time, there is no indication of any surgery on him.' Dr. Blair was not permitted to testify 'to the degree or percentage of permanent disability or injury,' and the plaintiff was not permitted to testify that as a result of his injuries 'he had difficulty sleeping' or that his injury and the discussion of surgery have caused him 'worry, concern and anxiety.'

While Dr. Blair was not permitted to testify to the percentage of the plaintiff's disability, he did testify that 'he still has disability, and he has had it to the point where I believe it is permanent.' The effect of the injury is, the doctor said, 'I don't believe he will do it (his work) as efficiently as somebody with a normal back.' The plaintiff repeatedly described his symptoms, particularly the recurrent 'soreness' in his back, and he said, 'I have as much pain as I ever did.' The doctor repeatedly described his symptoms. The court sustained objections to one or two of these matters because counsel's questions were leading, not because the subject matter was inadmissible or because the plaintiff could not testify to it, and the questions were not reframed. Even so, from the detailed evidence, three and one half years after the accident, the jury, if it believed all of the plaintiff's evidence, could fairly well assess the degree or percentage of his disability and whether it interfered with his sleep. Upon the essential issue involved here, the point to all these matters is that they were not 'calculated to arouse passion and prejudice against plaintiff than to throw light on the issues involved.' Upon this record these matters were not comparable to the invited 'sinister influences' which entered 'into the case and are reflected in the extremely inadequate verdict returned,' as was the fact in the leading case of Grodsky v. Consolidated Bag Co., 324 Mo. loc. cit. 1083, 26 S.W.2d loc. cit. 625. As a matter of fact this case was well and fairly tried without fanfare or bombast, and, unless demonstrated by the meagerness of the verdict alone, there was not a single incident that would arouse the jury's passion and prejudice against the plaintiff. The only matter inflammatory in this sense was Davidson's testimony that Schneider was thick-tongued, unsteady on his feet and reeked of alcohol. And Schneider made the exceptional admission that in the course of the day he had consumed 3 or 4 or 5 bottles of beer.

The defendant's liability for the plaintiff's losses has been conclusively established by the jury's verdict and it is not necessary to note the evidence concerning that issue (Grodsky v. Consolidated Bag Co., supra) except in so far as the collision itself may have some bearing on the nature and extent of the plaintiff's injuries. Highway 66 east of Eureka was under construction and the collision of the parties' automobiles occurred on a two-lane, concrete 'crossover.' Davidson, returning to Jefferson City from St. Louis, traveling west at a speed of 55 to 60 miles an hour, reduced his speed to about 30 miles an hour as he approached and proceeded into the right traffic lane of the crossover. Schneider, traveling east towards St. Louis at a speed of approximately 65 miles an hour, did not see the black-and-white painted barrier marking the crossover until he was upon it. His automobile first went off onto the right shoulder, then to the left and at that point 'began to swerve' and 'more or less bounced off me than just a slicing blow.' Schneider, in describing the collision, said, 'I went into that fan-shape arrangement on the next turn. In other words, I fishtailed my car twice, and then there was a glancing blow to Mr. Davidson's car, and I continued on from there'--100 to 150 feet. Davidson's automobile stopped within twenty feet. In any event, the left rear fender of Schneider's automobile struck the side of the left front fender of Davidson's automobile just ahead of the left front door. Both of the automobiles were 'driveable' after the impact, the parties exchanged names and drove on, Davidson driving 100 miles to his destination in Jefferson City. At the scene of the collision Davidson did not appear to have been injured, and said to Schneider, 'I told him I didn't think so.' In his petition Davidson asked for $250 damages to his automobile, the vehicle was repaired but there was no evidence as to the cost. He proved the damages to his automobile by testifying that its value was $2,800 before the collision and $2,500 afterwards, a loss of $300.

Davidson says that...