King v. Kansas City Life Ins. Co.

• Citation: 164 S.W.2d 458,350 Mo. 75
• Decision Date: 13 June 1942
• Docket Number: 37426
• Parties: A. S. King and I. A. Smith, Trustees of Hinkle Company, v. Kansas City Life Insurance Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

164 S.W.2d 458

350 Mo. 75

A. S. King and I. A. Smith, Trustees of Hinkle Company, v. Kansas City Life Insurance Company, a Corporation, Appellant

No. 37426

Supreme Court of Missouri

June 13, 1942

As Modified on Denial of Rehearing August 12, 1942. Motion for Rehearing Denied and Opinion Modified September 8, 1942. Further Motion for Rehearing Denied September 24, 1942.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Affirmed.

Cooper Neel & Sutherland and Frank J. Rogers for appellant; Ray B. Lucas, Stanley Bassett and L R. Williams of counsel.

(1) The court erred in granting the plaintiffs a new trial and in setting aside the verdict of the jury for the reasons: The paper constituting the pretended motion for a new trial is legally insufficient and did not warrant the action of the trial court in granting a new trial after the judgment term and does not preserve for review any of the alleged errors specified therein, and, therefore, more tersely stated, it is not a motion for a new trial. Secs. 812, 1003, 1072, R. S. 1929; Melenson v. Howell, 130 S.W.2d 555; Lee's Summit B. & L. Assn. v. Cross, 134 S.W.2d 19; Maplegreen Realty Co. v. Mississippi Valley Trust Co., 237 Mo. 350. (2) Plaintiffs' purported motion for a new trial did not preserve for consideration of the trial court, after the judgment term, specifications or grounds numbered 14, 15, 16, 18, 19 and 20 relating to the evidence and weight thereof, and such specifications or grounds will be entirely disregarded by the court, as, presumably, they were by the court below, for the reason that they are repugnant to, inconsistent with, and contradictory of specification No. 21, which asserts that the verdict "is totally without evidence to support it and is contrary to all the evidence in the case." (a) Ground 15 -- "The verdict of the jury is against the weight of the evidence" is repugnant to and inconsistent with Ground 21 -- that the verdict "is totally without evidence to support it and is contrary to all the evidence in the case," and such specifications or grounds are self-destructive. Bruns v. Capstick, 46 Mo.App. 397; Gray v. Mo. Lbr. & M. Co., 177 S.W. 595; Lenox v. Harrison, 88 Mo. 491; Raming v. Met. Street Ry. Co., 157 Mo. 477; Evans v. Illinois Central R. Co., 289 Mo. 493; Christy v. Butcher, 153 Mo.App. 397; Frazier v. Radford, 23 S.W.2d 639; Hinkle v. Lovelace, 204 Mo. 208; Shohoney v. Quincy, O. & K. C. R. Co., 223 Mo. 649; Peterie v. Met. St. Ry. Co., 177 Mo.App. 359; Gabriel v. Met. St. Ry. Co., 130 Mo.App. 651; Cramer v. Traction Co., 112 Mo.App. 350; Boyd v. St. Louis Transit Co., 108 Mo.App. 303; Crawford v. Stockyards Co., 215 Mo. 394; Richter v. United Rys. Co., 145 Mo.App. 1; Wears & Moffett v. Weisberg & Co., 163 Mo.App. 580; Gates v. Dr. Nichols' Sanitorium, 331 Mo. 757, 55 S.W.2d 424. (b) Grounds 14, 16, 18, 19 and 20 in the plaintiffs' motion are equivalent to Ground 15, that the verdict "is against the weight of the evidence." Ground 14 -- that the verdict is against the evidence is equivalent to Ground 15 -- that the verdict "is against the weight of the evidence." State v. Scott, 214 Mo. 257; Raifeisen v. Young, 183 Mo.App. 508; Byrd v. Vanderburgh, 168 Mo.App. 112; Lackland v. United Rys., 197 Mo.App. 62. In Ground 16 -- the words, "against the law" add nothing to "against the evidence." State v. Scott, 214 Mo. 257; Raifeisen v. Young, supra; Byrd v. Vanderburgh, supra. Ground 18 -- that the verdict "is inadequate" is equivalent to saying that it is against the weight of the evidence. Stegner v. M.-K.-T. R. Co., 64 S.W.2d 691; Hunt v. Gus Gillerman Iron & Metal Co., 39 S.W.2d 369; St. Louis v. Franklin, 324 Mo. 1212, 26 S.W.2d 954. Ground 19 -- that the verdict is so inadequate as to show bias and prejudice, is equivalent to saying that it is inadequate and, therefore, against the weight of the evidence. Hunt v. Gus Gillerman Iron & Metal Co., supra. Ground 20 is, in legal effect, the same as Ground No. 19. Hunt v. Gus Gillerman Iron & Metal Co., supra. (c) The verdict of the jury was supported by substantial evidence, and, therefore, Ground 21 that "the verdict of the jury is totally without evidence to support it and is contrary to all the evidence in the case," is wholly without merit. (d) It was the duty of the plaintiffs to see that the trial court observed Section 1003, R. S. 1929, and assigned its grounds, if any, for granting a new trial, and plaintiffs' failure to observe this duty, should place the burden upon the plaintiffs of upholding the action of the trial court. Stone v. Royar, 200 Mo. 444. Instruction F did not constitute a comment upon the evidence, and did not single out and comment upon defendant's evidence, or specifically approve said evidence, as specified by plaintiffs. Stewart v. Sparkman, 75 Mo.App. 106; Ward v. Mo. Pac. Ry. Co., 277 S.W. 908; Berthold v. Danz, 27 S.W.2d 448. Instruction F properly submitted that nominal damages, only, could be allowed if the jury found plaintiffs suffered no damage, and it sufficiently stated the necessary facts for the jury to find in order to render a verdict for nominal, compensatory damages, only, and did not misdirect and mislead the jury, as specified by plaintiffs. State ex rel. v. Farmer, 201 S.W. 955; Seelig v. M., K. & T. R. Co., 230 S.W. 94; Larey v. M., K. & T. R. Co., 64 S.W.2d 681. (3) Under the prevailing practice (if approved and followed) that this court will assume that the motion was sustained upon each and every ground of the motion, it follows that, by such assumption, the inconsistent, repugnant, and self-destructive grounds of the motion are, in legal effect, a part of and incorporated by adoption in the general order itself, and therefore the grounds relating to the inadequacy of the verdict are erased by the ground that there was no evidence to support the verdict. Bruns v. Capstick, 46 Mo.App. 397; Gray v. Mo. Lbr. & M. Co., 177 S.W. 595; Lenox v. Harrison, 88 Mo. 491; Raming v. Met. St. Ry. Co., 157 Mo. 477; Evans v. Illinois Central R. Co., 289 Mo. 493; Christy v. Butcher, 153 Mo.App. 397; Frazier v. Radford, 23 S.W.2d 639; Hinkle v. Lovelace, 204 Mo. 208; Shohoney v. Quincy, O. & K. C. R. Co., 223 Mo. 649; Peterie v. Met. St. Ry. Co., 177 Mo.App. 359; Gabriel v. Met. St. Ry. Co., 130 Mo.App. 651; Cramer v. Traction Co., 112 Mo.App. 350; Boyd v. St. Louis Transit Co., 108 Mo.App. 303; Crawford v. Stockyards Co., 215 Mo. 394; Richter v. United Rys. Co., 145 Mo.App. 1; Wears & Moffett v. Weisberg & Co., 163 Mo.App. 580; Gates v. Dr. Nichols' Sanitorium, 331 Mo. 757, 55 S.W.2d 424. (4) However, this court should not assume nor indulge the presumption that the general order allowing the new trial made in violation of express law was granted upon each and every ground of the motion, and cases so holding such as Gray v. Hannibal, 29 S.W.2d 710, 713, should be overruled, and the burden cast upon plaintiffs to point out some legal ground upon which the trial court should have made and was required by applicable law to make the order; and the ground to be so pointed out must be a legal ground and not a discretionary weight of the evidence ground. Sec. 1169, R. S. 1939; Stoner v. Royar, 200 Mo. 444. (5) The case having been tried below by both sides upon a definite factual theory cannot, upon this appeal, be converted into a contrary theory, viz., a junk value case. Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154.

V. E. Phillips, John G. Killiger, Jr., and I. A. Smith for respondents.

(1) The motion for new trial is sufficient. Maplegreen Realty Co. v. Trust Co., 237 Mo. 350, 141 S.W. 621; Gray v. Nations, 224 Mo.App. 27, 23 S.W.2d 1080; Morgan v. Keller, 194 Mo. 663, 92 S.W. 75; Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274; Ormsby v. A. B. C. Warehouse Co., 221 Mo.App. 779, 288 S.W. 959; Van Hoosier v. Dunlap, 117 Mo.App. 529, 93 S.W. 350; Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 498; State ex rel. May Dept. Store v. Haid, 327 Mo. 567, 38 S.W.2d 44; Wells v. Wells, 115 S.W.2d 94; Willett v. Farm Mtg. & Loan Co., 263 S.W. 234; Eldon Ice & Fuel Co. v. Van Hoosier, 163 Mo.App. 591, 147 S.W. 161; Wahl v. Cunningham, 320 Mo. 57, 56 S.W.2d 1052. (2) The grounds of the motion for new trial are not inconsistent. Gould v. St. John, 207 Mo. 619, 106 S.W. 23; Cornell v. Mutual Life Ins. Co., 179 Mo.App. 420, 165 S.W. 858; Cunningham v. Atteberry, 163 Mo.App. 594, 147 S.W. 595; Stout v. I. O. O. F., 115 S.W.2d 32; Security Bank of Elvins v. Natl. Surety Co., 333 Mo. 340, 62 S.W.2d 708; Barth v. Boyer, 27 S.W.2d 499; Stegner v. M.-K.-T. Ry. Co., 333 Mo. 1182, 62 S.W.2d 691. (3) No error was committed by the trial court in setting aside the verdict and granting a new trial. (a) Wide discretion is given a trial court in setting aside a verdict and granting a new trial. Reissman v. Wells, 258 S.W. 43; State ex rel. Hayward v. Haid, 330 Mo. 686, 51 S.W.2d 79; Beer v. Martel, 320 Mo. 53, 55 S.W.2d 482. (b) The one cent verdict was so inadequate and was so against the weight of the evidence, the trial court properly exercised its discretion in setting aside the verdict as against the weight of the evidence. Foly v. Harrison, 233 Mo. 460, 136 S.W.2d 354; Dorset v. Chambers, 187 Mo.App. 276, 173 S.W. 725; Platt v. Cape Girardeau Bell Tel. Co., 12 S.W.2d 933. (4) The motion for new trial is sufficient. Maplegreen Realty Co. v. Trust Co., 237 Mo. 350, 141 S.W. 621.

Ellison, C. J. All concur except Gantt, J., absent.

OPINION

ELLISON

This appeal by the defendant life insurance company is from an order of the Jackson County circuit court sustaining the plaintiff-respondents' motion for new trial in a suit for $ 33,922.68 compensatory damages and $ 10,000 exemplary damages for wrongful conversion of personal property. Under a mandatory instruction...