Haas Baking Co. v. Luzio, 35500
| Decision Date | 23 July 1974 |
| Docket Number | No. 35500,35500 |
| Citation | 512 S.W.2d 428 |
| Parties | HAAS BAKING COMPANY, Plaintiff-Appellant, v. Kenneth LUZIO, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Alan J. Steinberg, Clayton, for plaintiff-appellant.
Ray E. White, Jr., St. Louis, for defendant-respondent.
Plaintiff, Haas Baking Company, appeals from the judgment entered by the Circuit Court of the City of St. Louis granting defendant's motion for a new trial. The order appealed from superseded a jury verdict corrected in open court awarding plaintiff damages in the amount of $629.38 and denying defendant relief on his counterclaim. For the reasons discussed herein, we reverse the judgment of the circuit court.
The controversy arose out of an automobile collision at approximately 3:20 A.M. in the morning which occurred between Sam Bommarito, then truck driver and employee of plaintiff, Haas Baking Company, and defendant, Kenneth Luzio. The accident occurred as Bommarito was leaving a Mansion House Center driveway nearly opposite Locust Street while Luzio was motoring north on Fourth Street proceeding from a stop sign. The record is not clear whether the latter made a rolling or a complete stop.
The jury was instructed that the 'verdict must be for defendant on (his) counter-claim' if inter alia Bommarito failed to yield the right-of-way. The jury was further instructed on the usage of 'right-of-way'; to wit: 'a vehicle approaching on the highway has the right to proceed ahead of the vehicle entering from the driveway.'
At the trial when the jury returned its 9--3 verdict, the judge observed that the panel had neglected to word their verdict according to one of the three verdict forms given them. The words 'plaintiff's and 'defendant' were transposed, the jury finding in favor of defendant and assessing the amount of damages prayed for by plaintiff. In addition, the verdict contained a note referring to verdict form number one as the verdict they intended, and their handwritten verdict began 'We, the under jurors' as opposed to 'We, the undersigned jurors.'
The judge immediately requested both counsel to approach the bench, offering to send the panel back or to have the foreman make the necessary correction in open court.
Counsel for plaintiff Haas assented, while counsel for defendant remained silent until after the foreman purportedly made the correction at which time he moved for a mistrial and requested that the jury be polled. Thereafter, the clerk again reread the verdict incorrectly, then again correctly--in favor of plaintiff with damages in the amount prayed by plaintiff.
The jury was then polled, after which defendant's counsel made his record and moved for a mistrial based upon confusion, which was denied. The same grounds inter alia were argued in defendant's motion for a new trial which the court granted.
Plaintiff, Haas Baking Company, assigns as error the trial court's ruling granting defendant a new trial on the following grounds, that (1) defendant's objection to the correction of the jury's verdict came too late; (2) portions of testimony regarding defendant's physical condition and resultant damages suffered were properly excluded; and (3) the jury properly decided the issue before it on the respective liability of plaintiff and defendant.
When, as here, a new trial is granted without the judge specifying the grounds therefore, error is presumed. The effect is that the burden of proving reversible error shifts from the appellant, bringing the appeal, to the respondent, to whom the new trial was granted, Rule 84.05, V.A.M.R.
Plaintiff Haas first argues that defendant's objection to the correction of the jury's verdict, as opposed to sending the jury back to the deliberation room, was not timely and hence, defendant will not be heard to complain.
It has not been argued or suggested that the judge abused his discretion in handling the problem. Indeed, it is within the court's power to amend or correct a verdict when all that is needed are slight changes in form to accord with the jury's conclusion actually reached. State v. Summers,501 S.W.2d 548, 550 (Mo.App.1973) and Rule 78.01, V.A.M.R.
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Skelton v. General Candy Co., 36912
...and judge the credibility of the witnesses. Wilkins v. Cash Register Service Company, 518 S.W.2d 736 (Mo.App.1975); Haas Baking Company v. Luzio, 512 S.W.2d 428 (Mo.App.1974). Defendant also argues that even if plaintiff fell in the hole, the submission of the hole in plaintiff's verdict di......
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Lamb v. Heiligers
...issue of liability and thus did not reach the issue of damages. Gardner v. McGee, 505 S.W.2d 452 (Mo.App.1973); Haas Baking Co. v. Luzio, 512 S.W.2d 428, 431(7) (Mo.App.1974). In this case the issue of fault was strenuously contested. Plaintiff testified that while he was stopped for a traf......
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Jenkins v. McShane, 9689
...clear that 'all that is needed are slight changes in form to accord with the jury's conclusion actually reached.' Haas Baking Co. v. Luzio, 512 S.W.2d 428, 430(3) (Mo.App.1974). In the present case, the jury could have found the issues generally for plaintiffs only as authorized by their ve......
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Dixon v. Bi-State Development Agency
...99, 103 (Mo.App.1979). As the order of April 30 specifies no ground for granting the new trial, error is presumed. Haas Baking Co. v. Luzio, 512 S.W.2d 428, 430 (Mo.App.1974). The burden becomes the respondent's to prove that the motion was based on proper grounds. Briggs v. Baker, 631 S.W.......