Hunt v. Gus Gillerman Iron & Metal Co.

• Decision Date: 21 May 1931
• Docket Number: 29244
• Parties: Wily Hunt v. Gus Gillerman Iron & Metal Company, Appellant
• Court: Missouri Supreme Court

39 S.W.2d 369

327 Mo. 887

Wily Hunt v. Gus Gillerman Iron & Metal Company, Appellant

No. 29244

Supreme Court of Missouri

May 21, 1931

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

Wilbur C. Schwartz for appellant.

(1) The verdict of $ 1,000 awarded plaintiff is a very substantial sum under the evidence, and the court erred in granting plaintiff a new trial on the ground that the verdict is so inadequate as to indicate bias and prejudice on the part of the jury and abused its discretion in granting plaintiff a new trial on that ground. Fischer v. St. Louis, 189 Mo. 579; Pritchard v. Hewitt, 91 Mo. 547; Cochran v. Wilson, 287 Mo. 229; Sullivan v Wilson, 283 S.W. 744; Haven v. Ry. Co., 155 Mo 216; Weinberg v. Street Ry. Co., 139 Mo. 286; Dowd v. Air Brake Co., 132 Mo. 579. (2) Instruction 7 telling the jury that there was no evidence that an insurance company was interested in the case was properly given by the court under the peculiar facts and circumstances disclosed in this record. The plaintiff having recovered a substantial verdict in his favor, said instruction can now only be considered on the question of the measure of damages. On that question, certainly the jury did not have the right to take into consideration the fact that an insurance company might be interested in the outcome of the case.

Everett J. Hullverson, Mark D. Eagleton and James A. Waechter for respondent.

(1) The court, having concluded that the verdict of the jury was so inadequate as to indicate bias and prejudice on the part of the jury, and having heard, seen and observed the witnesses as well as the jury, will be presumed to have not unjustly characterized the verdict and, hence, did not err in granting plaintiff a new trial. McCarty v. Transit Co., 192 Mo. 396; Craton v. Huntzinger, 187 S.W. 53; Kelly v. Box Co., 248 S.W. 591; Dietrich v. Cape Brewery, 286 S.W. 44; Dorset v. Chambers, 173 S.W. 725; Settles v. McGinley, 296 S.W. 846; Wagner v. Ins. Co., 58 Mo. 429. (2) Instruction 7 is erroneous. Brooks v. Menaugh, 284 S.W. 805.

OPINION

Frank, J.

Plaintiff, respondent here, sought by this action to recover the sum of $ 15,000 for alleged personal injuries. The trial resulted in a verdict for plaintiff for $ 1,000. On motion of plaintiff, this verdict was set aside and a new trial granted. Defendant appealed from the order granting a new trial.

The trial court assigned of record two grounds for granting a new trial, the first of which was that the verdict was so inadequate as to indicate bias and prejudice on the part of the jury. To say that the verdict is inadequate is equivalent to saying that it is against the weight of the evidence. [City of St. Louis v. Franklin, 324 Mo. 1212, 26 S.W.2d 954.] So we will treat the new trial as having been granted on the ground that the verdict was against the weight of the evidence.

Appellant's first contention is that the trial court erred in granting a new trial on this ground. The law applicable to this contention has been definitely settled by former decisions of this court. In State ex rel. v. Ellison, 268 Mo. 225, 231, 188 S.W. 1076, we said:

"I. Our statute (Sec. 2022, R. S. 1909), and the decisions of all of the appellate courts construing it, have been peculiarly benevolent and encouraging to the trial courts in the matter of giving such courts a broad discretion in passing upon the weight of the evidence in their consideration of motions for a new trial. The statute is definitely expressive of a few phases of the court's inherent powers, and our own rulings upon it are so sanctified by age and uniformity as to have become almost elementary. Regardless of the seeming weight of the evidence opposed to the action of the court nisi in setting aside a verdict of a jury on this ground, we do not interfere so long as there is any substantial evidence to bolster up the trial court's action. It is only when, had the verdict been the other way about, we would not for lack of supporting evidence have permitted it to stand, that we interfere with the trial court's discretion."

In the recent case of City of St. Louis v. Franklin et al., 324 Mo. 1212, 26 S.W.2d 954, the trial court granted a new trial on the ground that the award was inadequate. In disposing of that case on appeal we said:

"Granting a new trial on the ground assigned is equivalent to saying that in the mind of the trial judge the verdict is contrary to the weight of the evidence. We have held consistently that a trial judge, in sustaining a motion for new trial on that ground, has wide discretion with which we will not interefere unless it is manifestly abused. In passing upon it we cannot substitute our judgment for the judgment of the trial court in weighing evidence upon which he based that ruling. [City of St. Louis v. Worthington (Mo. Sup.), 19 S.W.2d 1066; Devine v. St. Louis, 257 Mo. 470, 475, 476, 165 S.W. 1014, 51 L. R. A. (N. S.) 860.] In view of that principle of law we may briefly state the evidence in this case."

In Guthrie v. Gillespie, 319 Mo. 1137, 1146, 6 S.W.2d 886, the trial court set aside a verdict in favor of plaintiff as being against the weight of the evidence. In approving such action, this court said:

"I. There was at least some substantial evidence to support the circuit court's order, and that is as far as this court will inquire. It is fundamental that appellate courts do not pass on the weight of the evidence in reviewing the action of trial courts on motions for a new trial (State ex rel. A., T. & S. F. Ry. Co. v. Ellison et al., 268 Mo. 225, 231, 186 S.W. 1075); and it has been said the scrutiny is less strict when a new trial has been granted than when it has been refused, and that in the former instance an appellate court will seldom interfere. [Lamb v. Feehan (Mo. Sup. Div. 1), 276 S.W. 71, 80; Stafford v. Ryan (Mo. Sup. Div. 2), 276 S.W. 636, 637.]"

Boiled down the rule may be thus stated: Where a new trial is sought on the ground that the verdict is against the weight of the evidence, in determining that question, the trial court may pass upon the weight of the evidence, and its action in granting or refusing to grant a new trial, will not be disturbed on appeal where the evidence pro and con is substantial and conflicting or where there is any substantial evidence to support the trial court's action. This is so because trial courts may and appellate courts may not pass upon the weight of evidence. City of St. Louis v. Worthington, 19 S.W.2d 1066, 1067; Sofian v. Douglas, 23 S.W.2d 126, 129. In view of the trial court's authority to pass on the weight of the evidence and our lack of authority to do so, the only question open for consideration in this court is whether or not there was any substantial evidence to support the trial court's action in granting a new trial. If so, its action must be affirmed. If not, such action should be reversed.

Plaintiff was injured in October, 1925, and this cause was tried in April, 1927. The evidence offered by plaintiff as to the character and extent of his injuries is fairly stated by him as follows:

"There was evidence tending to show that after the receipt of his injuries plaintiff was taken to the office of Drs. Lyttle and Coffee, where Dr. Lyttle treated him by taking X-rays and placing his leg in a plaster-of-paris bandage which remained on his leg for four weeks, during which time his leg pained him and he walked on crutches for four weeks and that he used a cane and it was about six months before he was able to walk on the leg at all; that Dr. Blevins treated him thereafter; that at the time of the trial his ankle felt stiff and was swollen; that his leg was broken about four or five inches above the ankle and that it pains him where it was broken and his muscles cramp and wake him up at night 'the whole leg is dead, like I sit down and the leg goes to sleep, it cramps;' that happens every night. Plaintiff further testified that his ankle was stiff at the present time and when he walked it felt dead and that caused him to limp all the time.

"Dr. Blevins testified on behalf of the plaintiff that he began to treat the plaintiff about the 28th day of December, 1925. That he found a fracture of the tibia on the right side and quite a stiffness and swelling of the right ankle, together with the muscular weakness of the right leg; that his treatment consisted of massage and rest, and he treated the plaintiff for two months and must have seen him at least twenty-five or thirty times. That the fracture had practically healed when he first saw the plaintiff; that he took no X-ray pictures because he could tell the condition of the leg without the aid of an X-ray by the callus formation. That when two bones come together they unite with a formation of callus tissue around the site of the fracture and that there is quite a bit of callus. That he measured both plaintiff's legs and found at least three inches difference in circumference, the right leg being the larger by reason of the callus at the point of fracture. That the reasonable value of his services was $ 65.

"On cross-examination of this witness the plaintiff was brought before the jury and his leg shown to the jury, and the doctor said that at that time he could not tell how much larger ...