Kirst v. Clarkson Const. Co.

• Decision Date: 12 October 1965
• Docket Number: No. 8467,8467
• Parties: Catherine KIRST, Plaintiff-Respondent, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 487

395 S.W.2d 487

Catherine KIRST, Plaintiff-Respondent, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.

No. 8467.

Springfield Court of Appeals, Missouri.

Oct. 12, 1965.

Glenn A. Burkart, Robert W. Schroff, Mann, Walter, Powell, Burkart & Weathers, Springfield, A. W. Landis, West Plains, for defendant-appellant.

H. D. Green, R. D. Moore, N. C. Brill, West Plains, for plaintiff-respondent.

STONE, Judge.

Plaintiff, Catherine Kirst, sued defendant, Clarkson Construction Company, for damage to a frame house in West Plains, Missouri, alleged to have been caused on April 26, 1963, by blasting on a nearby highway construction project. At the conclusion of the trial on March 5, 1965, the jury returned a unanimous verdict finding the issues in favor of plaintiff and assessing her damages at $1,150. Defendant filed no after-trial motion, but plaintiff filed a timely motion for new trial which was sustained [V.A.M.R. Rule 78.01] by the following order specifying three grounds (numbered by us to facilitate easy reference thereto): 'Motion for new trial granted and for the reason the court believes it erred in permitting defendant to prove the value of real estate in question in the year of 1947, that it erred in permitting the evidence as to amount paid to plaintiff for real estate by the Missouri State Highway Department and that because of the aforesaid, that the plaintiff was prejudiced when defendant's attorney asked that jury be permitted to view the real estate before said jury.' The order granting a new trial having deprived defendant of its attained position in the litigation and of its right to conclude the suit and forever terminate its liability upon plaintiff's cause of action by paying the judgment and costs, defendant is an 'aggrieved' party [V.A.M.S. Sec. 512.020] and may maintain this appeal. Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 804-805(4); Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 321(6).

Plaintiff's motion for new trial contained nine assignments of error, to wit, the three assignments subsequently specified in the court's order granting a new trial, three assignments not here material, and three assignments pertaining to alleged inadequacy of the verdict, namely, assignment 7 that 'the verdict of the jury is wholly inadequate,' assignment 8 that 'the verdict of the jury is inadequate and the result of the bias and prejudice of the jury against the plaintiff,' and assignment 9 that 'the verdict of the jury for such inadequate amount was not supported by the preponderance and greater weight of the evidence in said cause.' By granting plaintiff's motion for new trial on specified grounds as directed by V.A.M.R. Rule 78.01, the trial court, in effect, overruled all other assignments in the motion, ¹ including assignments 7, 8 and 9 pertaining to alleged inadequacy of the verdict. So the anomalous posture of the case, as it comes to us, is that the trial court rejected and denied plaintiff's complaints directed to the alleged inadequacy of the verdict [cf. Smith v. St. Louis Public Service Co., Mo., 277 S.W.2d 498, 502(1)] but granted a new trial to plaintiff because of alleged errors in the admission of evidence, as specified in grounds 1 and 2 of the order granting a new trial, and because of the request by defendant's counsel that the jury be permitted to view plaintiff's house, as specified in ground 3 of the order.

Reminding us of the well-established principle that, on appeal from an order granting a new trial, the respondent is not limited to the grounds specified in the order but may urge in support of the court's ruling any other ground properly presented and preserved in the motion for new trial and on appeal, ² instant plaintiff-respondent here undertakes to sustain the trial court's order on the ground that 'the verdict of the jury was wholly inadequate and was predicated upon evidence erroneously admitted'--essentially the complaint in assignment 7 in the motion for new trial that 'the verdict of the jury is wholly inadequate,' coupled with the present assertion of plaintiff's counsel that such alleged inadequacy of the verdict was 'the inherent result' of grounds 1 and 2 specified in the order granting a new trial.

The general rule is that where, as here, the jury assesses damages in a substantial (as distinguished from a nominal) amount, plaintiff will not be heard to complain upon appeal about the admission or exclusion of evidence. Stone v. Farmington Aviation Corp., 360 Mo. 1015, 1021, 232 S.W.2d 495, 499(4); Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5). See McCormack v. McNamee, Mo., 274 S.W.2d 272, 279(10). ³ But, aside from that principle it is crystal clear that plaintiff's appellate position necessarily must rest and depend upon her contention that the damages assessed by the jury were inadequate. Otherwise, it could not be said that trial errors, whatever they might have been, materially affected the merits of the action and constituted prejudicially reversible error. V.A.M.R. Rule 83.13(b); V.A.M.S. Sec. 512.160(2). And since the order granting a new trial, in effect, overruled all assignments in plaintiff's motion for new trial pertaining to alleged inadequacy of the verdict, and since the appellate presumption is that the trial court acted correctly in overruling those assignments, ⁴ the burden of demonstrating here that the trial court erred in so ruling rests upon plaintiff-respondent. ⁵

Under our juridical system, determination of the amount of damages is primarily for the jury. ⁶ And where, as in the instant case, the trial court has overruled the assignments in the motion for new trial pertaining to alleged inadequacy of the verdict and thus has denied a new trial for inadequacy, the rule upon appeal is that the jury's exercise of its discretion in the assessment of damages is conclusive unless the verdict is so shockingly inadequate as to indicate that it is the result of passion and prejudice or of a gross abuse of such discretion. ⁷ The appellate court does not weigh the evidence but rather seeks only to ascertain whether the trial court abused its discretion in denying a new trial for inadequacy. The appellate inquiry is whether, viewing the record in the light most favorable to the trial court's ruling on the complaint of inadequacy, it may be said fairly and reasonably that the verdict was supported by substantial evidence. ⁸

With these basic principles in mind, we turn to the evidence. In 1947, plaintiff and her husband purchased and (with their children) moved into a seven-room, two-story frame house (hereinafter frequently referred to as the house) situate on a five-acre tract, of which approximately three acres were sold for highway right-of-way prior to the blasting on April 26, 1963, out of which this action arose. After the death of her husband in 1954, plaintiff continued to reside in the house until November 1962, when she moved to another town. Thereafter, the house remained vacant to the time of trial.

The house was located 'fifty feet or maybe a little more' north of the right-of-way of relocated U.S. Highway No. 63 which, at that point, runs through a 'cut'. During the late afternoon of April 26, 1963, defendant, then engaged in construction of Highway 63, set off a series of three blasts in the 'cut.' Plaintiff adduced evidence to the effect that the third blast was too heavy and that it caused 'a terrific shock plus a lot of debris in the air' which showered upon not only plaintiff's house but also the Amyx house some fifty to seventy-five feet to the north. Upon trial, defendant did not seriously deny that the blasting had resulted in some damage to plaintiff's house, but there was a sharp dispute and wide divergence of opinion as to the nature and extent of damage.

The measure of damages in cases of this character is stated plainly in Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 686, 253 S.W.2d 158, 164(12): 'The general rule is that the measure of damages to real estate is the difference in the value of the land before and after the injury by trespass or negligence. However, where damaged land or a building thereon can be restored to its former condition, at a cost less than the diminution in value, the cost of restoration may be recovered.' To the same effect, see Beaty v. N. W. Electric Power Coop., Mo.App., 296 S.W.2d 921, 925(5). In the case at bar, no witness testified with respect to the difference between the reasonable market value of plaintiff's real estate (i.e., the house and the two-acre tract on which it is situate) immediately before and immediately after the blasting. Plaintiff herself testified as to the difference between the reasonable market value of the real estate immediately before the blasting on April 26, 1963, and at the time of trial on March 5, 1965. Plaintiff's witness Curtis Amyx testified only as to the reasonable market value of the real estate prior to the blasting. Plaintiff's witness John T. Boss testified only as to what he considered the house to be 'worth' at the time of his examination about five weeks prior to the trial, and as to his estimate of the cost of repairing it at that time. Defendant's witness Recie Smith testified as to his estimate in October 1963 of the cost of repairing the damage which, in his opinion, had resulted from blasting. We proceed to a review of the pertinent testimony of the four above-named witnesses.

Plaintiff's testimony. In 1959, plaintiff and her children 'put in new ceilings' in the dining room and kitchen and papered the interior of the house. For this work, plaintiff made no cash expenditure other than for materials, and she declined even to estimate that expense. In the questions which first elicited information concerning this work, plaintiff's counsel referred to it as 'some repairs to the house back in '59'; and, on cross-examination, plaintiff responded with an...