Davis v. Perkins, KCD

• Decision Date: 05 August 1974
• Docket Number: No. KCD,KCD
• Citation: 512 S.W.2d 868
• Parties: Sharolyn K. DAVIS, Appellant, v. Stephen D. PERKINS, Respondent. 26543.
• Court: Missouri Court of Appeals

Page 868

512 S.W.2d 868

Sharolyn K. DAVIS, Appellant, v. Stephen D. PERKINS, Respondent.

No. KCD 26543.

Missouri Court of Appeals, Kansas City District.

Aug. 5, 1974.

Allan J. Fanning, Kansas City, for appellant.

Donald L. Mason, Kansas City, for respondent; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel.

Before PRITCHARD, P.J., and SWOFFORD, and SOMERVILLE, JJ.

SOMERVILLE, Judge.

This appeal arises from an action for damages resulting from a motor vehicle accident which occurred on March 25, 1971, at the intersection of Truman Road and Main Street in Kansas City, Missouri. A jury found defendant negligent and assessed damages in favor of plaintiff in the sum of $14,000.00. Liability is not an issue on appeal, thus any necessity or purpose for delineating the facts surrounding such issue is eliminated. Suffice it to say, there was ample evidence to support the jury's finding as to defendant's negligence.

Judgment was entered in accordance wity the jury's verdict. Thereafter, defendant filed a motion for judgment in accordance with his motion for a directed verdict at the close of all the evidence, or, in the alternative, for a new trial. Defendant urged six grounds in support of his motion for a new trial. Each ground was set forth in a separately numbered paragraph. Separately numbered paragraph 1 asserted 'that the verdict of the jury was excessive and exorbitant.' Separately numbered paragraph 2 asserted 'that the court erred in submitting the issue of plaintiff's back injury, as disclosed by the evidence, to the jury, as there was no causal connection between said back injury and conditions and the automobile accident, and there was insufficient factual and medical testimony and evidence to support the submission of that issue to the jury.'

The trial court sustained defendant's motion for a new trial and in doing so entered the following order: 'Now on this day the Court sustains defendant's motion for new trial on ground one, that the verdict was excessive, and on ground two, error in submitting the issue of the plaintiff's back injury.' Plaintiff appeals from the order granting the new trial and in this court impugns the order granting the new trial on four grounds. First, plaintiff asserts that the trial court abused its discretion in granting defendant a new trial on the grounds of excessive verdict and error in submitting plaintiff's back injury because the two grounds are inconsistent or, in effect, constitute only one ground, error in submitting plaintiff's back injury. Employing this first ground as a basic thesis, plaintiff then asserts, as her second ground, that the trial court erred as a matter of law in granting defendant a new trial because of error in submitting plaintiff's back injury, since submissibility of plaintiff's back injury was a legal determination rather than the exercise of judicial discretion inherent in the granting of a new trial for excessiveness of a verdict and there was substantial evidence to prove a causal connection between plaintiff's back injury and the motor vehicle accident or that plaintiff's back injury was caused by falls resulting from knee injuries sustained by plaintiff in the motor vehicle accident. Third, plaintiff asserts that the trial court abused its discretion in granting defendant a new trial because there was no substantial evidence in the record upon which the jury could have returned a verdict for defendant. Fourth, plaintiff asserts that the trial court did not err in failing to sustain defendant's motion for a directed verdict on the grounds of contributory negligence because defendant waived any such motion.

It is a well recognized principle that if either of the reasons assigned for the granting of a new trial is proper, the action of the trial court should be affirmed. State ex rel. State Highway Commission v. Klipsch,414 S.W.2d 783 (Mo.1967); Vaughn v. Ripley, 446 S.W.2d 475 (Mo.App.1969); and Bertram v. Wunning, 417 S.W.2d 120 (Mo.App.1967).

Plaintiff urges this court to hold the reasons given by the trial court for granting a new trial to be inextricably related. That is, the verdict was excessive because the back injury was improperly submitted. This court refuses to do so, because a reading of the order granting the new trial clearly shows the assigned reasons to be separate, distinct and independent. This conclusion is strengthened when the order is juxtaposed with the defendant's motion for a new trial, which presented the reasons distinctly and independently in separately numbered paragraphs. State ex rel. State Highway Commission v. Vaught, 400 S.W.2d 153 (Mo.1966) constitutes legal authority for the conclusion reached. There, the property owner in a condemnation case was granted a new trial on the grounds that the '. . . Court abused its discretion in allowing Commissioners Riebold and Wann to testify as witnesses and also on the grounds that the verdict is against the greater weight of the credible evidence . . .' On appeal the State contended that commissioners may be used as witnesses by either party in a condemnation case with certain restrictions, none of which were violated. Building from this point, the State argued, analogous to plaintiff's argument in this case, that the two assigned grounds, that the verdict was against the weight of the evidence (a discretionary ground) and that the testimony of the two commissioners was improperly admitted (a legal and non-discretionary ground) were so related that the sole reason, in fact, for granting the new trial was that the verdict was against the weight of the evidence without the testimony of the two commissioners, thus, constituting a non-discretionary legal ground, rather than a discretionary ground. The Court in State ex rel. State Highway v. Vaught, supra, l.c. 154, resolved this contention as follows:

'The order in this case is in clear and unambiguous language, and it clearly sets forth two reasons or grounds, the second of which is that the verdict was against the greater weight of the credible evidence. We cannot go behind what is clearly expressed in the order, surmise as to what may or may not have motivated the order, and then conclude that what the trial court really meant to say, but did not, was that without the testimony to witnesses Riebold and Wann the verdict was against the greater weight of the credible evidence.'

By the same reasoning plaintiff's first point is not persuasive and is ruled against her. Consequently, if either of the reasons assigned for granting the new trial in this case was proper, the action of the trial court should be affirmed. State ex rel. State Highway Commission v. Vaught, supra; State ex rel. State Highway Commission v. Klipsch, supra; Vaughn v. Ripley, supra; and Bertram v. Wunning, supra. Thus, if the trial court did not abuse its discretion in granting defendant a new trial on the discretionary ground that the verdict was excessive, it becomes unnecessary to rule on whether the court erred as a matter of law in granting defendant a new trial because plaintiff's back injury was improperly submitted to the jury.

Did the trial court abuse its discretion in granting defendant a new trial on the ground that the verdict was excessive? In resolving this query, the following well established principles come into play. The trial court has broad discretion in granting a new trial on the ground of excessiveness; the breadth of discretion in doing so is equivalent to the breadth of discretion vested in the trial court in granting a new trial on the ground that the verdict is against the weight of the evidence. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566 (Mo.1951); Union Electric Company of Missouri v. McNulty, 344 S.W.2d 37 (Mo.1961); and Pisha v. Sears Roebuck & Company, 496 S.W.2d 280 (Mo.App.1973). Accordingly, the granting of a new trial on the ground of excessiveness will not be interfered with absent a clear abuse of discretion. Union Electric Company of Missouri v. McNulty, supra; and State ex rel. State Highway Commission v. Koberna,396 S.W.2d 654 (Mo.1965). The trial court in ruling on a motion for a new trial predicated on discretionary grounds is entitled to consider all the evidence attendant to the issues under consideration, (Chrum v. St. Louis Public Service Co., 242 S.W.2d 54 (Mo.1951); and Bierman v. Langston, 304 S.W.2d 865 (Mo.1957)), 'the credibility of that evidence on the question of excessiveness of the verdict (is), in the first instance, a matter peculiarly for the consideration of the trial court.' (Bierman v. Langston, supra, l.c. 868), and the trial court may pass on the weight of such evidence (Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333 (1949); Knight v. Swift and Company, 338 S.W.2d 795 (Mo.1960); Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426 (1951); and Mohesky v. City of Washington, 432 S.W.2d 364 (Mo.App.1968)).

In conjunction with plaitiff's alleged back injury, a review of the evidence consistent with the above enumerated principles discloses the following. As a result of the impact of the motor vehicle accident which occurred on March 25, 1971, plaintiff's head, chest and knees struck interior portions of the vehicle she was driving. Plaintiff first sought medical attention the day following the accident due to the fact that her knees had swollen and she was suffering from a headache.

She went to St. Mary's Hospital where she was treated as an out-patient. Examination of plaintiff at St. Mary's Hospital revealed a small tender area on her scalp and the diagnosis to her knees was 'soft tissue trauma'. Plaintiff had no back complaints of any kind. Following her treatment as an out-patient at St. Mary's Hospital, plaintiff used crutches six or seven weeks to keep the weight off her knees. Thereafter she testified that she had difficulty in walking any considerable distance and experienced occasions of falling...