McCormack v. Captain Electric Const. Co., Inc.

Decision Date07 November 2000
Parties(Mo.App. W.D. 2000) . Virgil A. and Sandra McCormack, Respondents v. Capital Electric Construction Co., Inc., Appellant. Case Number: WD57688 Missouri Court of Appeals Western District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Jackson County, Hon. Charles E. Atwell

Counsel for Appellant: Jana Von Richards

Counsel for Respondent: Richard P. Scaletty

Opinion Summary:

Capital Electric Construction Company, Inc. appeals from an order entered in the Circuit Court of Jackson County granting Virgil and Sandra McCormack's Motion for New Trial. The Circuit Court found that the jury's verdict in the case was against the weight of the evidence as to both plaintiffs and ordered a new trial.


Division Three holds: (1) The record did not support Capital Electric's contention that the trial court abused its discretion and improperly relied on comments made by jurors after trial in deciding to grant a new trial. Moreover, the trial court cannot be deemed to have abused its discretion where the McCormack's presented substantial evidence that would have supported verdicts for them on all issues.

(2) The trial court acted within its discretion in granting a new trial on the issue of damages as well as liability.

(3) Even assuming that the issue was properly preserved for appeal, the trial court did not err in determining that the prejudicial effect of evidence related to financial difficulties experienced by the McCormacks outweighed any probative value it might have in the case.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: AFFIRMED. Smith, P.J., and Ulrich, concur.


On December 13, 1995, Respondent Virgil McCormack was performing sheet rock carpentry for Carmen Schell, a subcontractor on a building project for Marion Merrill Dow. While installing a firewall from scaffolding, Mr. McCormack came into contact with the uncapped end of a live electrical wire and received an electrical shock. Mr. McCormack was injured as a result.

Subsequently, Mr. McCormack filed a negligence action against Appellant Capital Electric Construction Company ("Capital Electric"), the subcontractor responsible for the electrical work on the project. Mr. McCormack's wife, Sandra, also filed a claim for loss of consortium.

After 2 1/2 weeks of trial, the jury assessed damages at $256,000 on Mr. McCormack's claim, but assigned 92% of the fault to Mr. McCormack and 8% of the fault to Capital Electric. The jury entered a verdict against Sandra McCormack on her consortium claim.

Subsequently, the McCormacks filed a motion for new trial asserting that the judgment was against the weight of the evidence. A hearing was conducted on that motion on September 2, 1999. During that hearing on Plaintiffs' motion for new trial, the trial court made the following comments:

Candidly, from the evidence that I found, I thought there was substantial evidence of negligence, but there was [sic] some very significant issues as relates to the issue of damage.

I submitted comparative fault in this case, and I submitted it, candidly, as I recall, without even objection from the plaintiff. I believe an argument can be made as to whether this even was a comparative fault case, but I submitted it, and I stand by that submission; however, the following occurred and this is the basis for my concern.

* * *

And when I got the jury verdict, I noticed that what they had done was they had their comparative fault submission, if memory serves me, was 92 percent at fault for Mr. McCormack and 8 percent at fault for the Defendant and a Defendant's verdict as relates to Sandra McCormack.

That in and of itself troubled me a great deal because of the fact that it was an emotional case. . . . I went up to thank the jury for their services and, to make a long story short, it was not an inquiry that I instituted, but they immediately made an inquiry as to what this verdict meant.

It was clear to me, from their inquiry, consistent with the questions they asked during jury deliberation, that the verdict which, in essence was for $256,000 with a 92/8 split, which would come out to roughly something slightly less than $20,000, it was clear that the jury thought that the award they gave was the award that was going to be received by the Plaintiff.

They asked me specifically about it. I did not generate the inquiry. Everyone in the room clearly thought that they misread the instructions from the colloquy that I had.

* * *

I informed counsel of these events and suggested they brief the issue and told them that, mainly because of the fact of the contributory fault submission, that I felt that -- or the contributory fault attribution by the jury that I just thought was not supported by the evidence, and then I add this very unusual situation with the jury circumstance, I felt that I needed to give very serious consideration to granting a new trial on the basis of the verdicts being against the weight of the evidence.

* * *

I think I should just set the whole thing aside, candidly, as to both Plaintiffs based on the situation that's before me. I don't know any way that I can allow the damages to stand if my basis for setting aside the new trial motion [sic] is that I thought the attribution of fault was against the weight of the evidence. If I'm wrong, you're welcome to enlighten me.

* * *

I agree that there is certainly a body of law that suggests a jury cannot impeach its verdict, and my ruling will not be based on the conduct [sic] I had with the jury other than it's such an abnormal contact. I just feel we would be playing games if I didn't put on the record as to what happened, and I think everyone will agree that I let you all know of this circumstance.

* * *

Based on the posture of the case as I see it and the finding of liability and damages as relates to Virgil McCormack is against the weight of the evidence. It is my intention to grant a new trial as relates to both those issues.

May I say, had it been 92/8 the other way and they assessed the damages, I wouldn't have thought about setting it aside. And candidly, if it had been 92/8 and less damages, I wouldn't have given a thought of setting it aside.

But under the facts that I heard, I think to attribute 92 percent fault against Mr. McCormack as relates to this circumstance is just clearly beyond the weight of the evidence and just simply not reasonable.

I also believe there was compelling evidence that the circumstances that he has suffered had a tremendous impact upon Mrs. McCormack, and for that same reason, and on the basis of the record, I'm going to set aside the verdict in favor of the Defendant against Mrs. McCormack grant [sic] a new trial based on the weight of the evidences as relates to that factor also.

* * *

There will be an order entered here today basically reciting based upon the hearing and the record I made today, that I do grant a motion for new trial to both Virgil McCormack and Sandra McCormack finding that the verdicts rendered by the jury were against the weight of the evidence.

On September 10, 1999, the trial court entered its Judgment and Order sustaining Plaintiff's motion for new trial. The court found that "the Jury's Verdict is against the weight of the evidence as to both Plaintiffs." The Court then incorporated by reference the record of the motion hearing.

Capital Electric raises three points on appeal. In its first point, Capital Electric claims that the trial court abused its discretion in granting a new trial because the court relied on inadmissible juror statements about the jury's deliberations.

In accordance with Rule 78.02, the trial court has broad discretionary power to grant a new trial on the grounds that the verdict was against the weight of the evidence. Brown v. Lanrich, Inc., 950 S.W.2d 235, 237 (Mo. App. E.D. 1997). An order granting a new trial on the ground that the verdict is against the weight of the evidence is presumed to be correct, and that order will not be disturbed unless the trial court manifestly abused its discretion in granting that motion. McGraw v. Andes, 978 S.W.2d 794, 801 (Mo. App. W.D. 1998). "Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992). "As long as [a] plaintiff makes a submissible case, the court's grant of a motion for new trial on this ground is virtually unfettered." Brown, 950 S.W.2d at 237. "We indulge every reasonable inference in favor of the trial court's ruling," and "[n]o abuse of discretion will be found where substantial evidence exists to support a verdict in the moving party's favor." McGraw, 978 S.W.2d at 802.

In its brief, Capital Electric concedes that the McCormacks presented sufficient evidence at trial to submit their case to the jury. However, Capital Electric asserts that the normal standard of review should not be applied to this case because the trial court in granting the new trial relied on inadmissible ex parte communications with jurors in which they impeached their verdict. Capital Electric claims that the trial court's comments immediately after the jury returned its verdict that the case had been "well-tried" and that "the jury has spoken," along with the comments made by the trial court during the motion hearing, demonstrate that the trial court clearly allowed its contact with the jurors to influence its decision.

"It is a 'well-founded and long-established rule, based on sound public policy, . . . that the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the verdict of a jury.'" Wingate by Carlisle v....

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    • United States
    • Court of Appeal of Missouri (US)
    • July 30, 2003
    ...or misunderstood the statements of a witness, or other matters "resting alone in the juror's breast."' McCormack v. Capital Elec. Const. Co., 35 S.W.3d 410, 414 (Mo.App.2000) (quoting Maxam v. Dillon, 674 S.W.2d 258, 260 (Mo.App.1984)); see also William Carver Co., v. Poos Bros., Inc., 778 ......
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