McDowell v. Kawasaki Motors Corp. USA

Decision Date09 October 1990
PartiesJames McDOWELL and Judy McDowell, Appellants, v. KAWASAKI MOTORS CORPORATION USA, and Paul Everett Silvia, Respondents. WD 42163.
CourtMissouri Court of Appeals

Max W. Foust, Foust, Strother & Frickleton, Kansas City and Robert L. Langdon, Bradley, Langdon, Bradley & Emison, Lexington, for appellants.

John H. Campbell, Campbell and Meyers, Kansas City, for respondent Kawasaki.

Arthur C. Popham, Jr., Popham, Conway, Sweeny, Fremont and Bundschu, Kansas City, for respondent Silvia.

Before GAITAN, P.J., and CLARK and MANFORD, JJ.

CLARK, Judge.

Plaintiffs-appellants, James and Judy McDowell, had verdicts from a jury awarding them damages against defendants Paul Silvia and Kawasaki Motors Corporation USA totaling $1,650,000.00. On motion by Kawasaki, the court ordered a new trial. The issues on this appeal are: (1) Whether the new trial was ordered on the discretionary ground that the verdict was against the weight of the evidence and, therefore, appellate review is limited to considering only an abuse of that discretion, and (2) If the order did not articulate a discretionary ground, were there other specified grounds of trial error which warranted a new trial. We answer both questions in the negative and order the judgment reinstated.

To place the issues in appropriate context, a brief description of the facts of the case, the relative positions of the defendants and the consequences of the verdicts are necessary.

On July 1, 1985, plaintiff James McDowell was operating a Kawasaki motorcycle when he collided with a truck being driven by defendant Paul Silvia. The evidence was undisputed that the accident occurred when Silvia's truck made a left turn directly into the path of the oncoming motorcycle. At impact, McDowell was thrown from the motorcycle and into the side of the truck. Plaintiffs alleged that the collision also caused a metal bracket supporting the windscreen on the motorcycle to be deflected inward impaling McDowell's right leg and causing severe and permanent injury.

As to defendant Silvia, plaintiffs alleged he was negligent in operating his truck in that he failed to give McDowell the right-of-way but instead, turned into the path of the motorcycle rendering a collision unavoidable. As to defendant Kawasaki, plaintiffs alleged the design of the metal support bracket was defective and unreasonably dangerous in that the metal bracket was pointed at one end and, in a crash, would be anticipated to bend inward upon the leg of the operator as occurred in McDowell's accident.

The cause was submitted on the theory that Silvia and Kawasaki were joint tort-feasors whose independent acts of negligence combined to cause McDowell's injuries. It was plaintiffs' assertion that each was liable for the full damages claimed. Although McDowell admittedly suffered some injuries unrelated to the allegedly defective fairing bracket, a consequence of his body striking the truck and falling to the ground, the claims for damages were restricted by plaintiffs to those resulting to the leg upon contact with the metal bracket. Thus, the jury was not called upon to apportion its award segregating damages for which Kawasaki was not responsible.

There was no issue of comparative fault submitted because neither Kawasaki nor Silvia raised any claim of negligence on the part of McDowell. There was also no issue of relative fault between Silvia and Kawasaki because that, too, was not pleaded. Although Kawasaki could have sought an allocation of fault as between it and Silvia under the doctrine of Missouri Pac. R.R. v. Whitehead & Kales Co., 566 S.W.2d 466, 473 (Mo. banc 1978), it did not do so, relying instead on a denial of any liability for plaintiffs' damages. That defense was incompatible with apportionment of fault. To invoke this latter doctrine, Kawasaki would have been required to accept its status as a joint tort-feasor with Silvia, Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233, 243-44 (Mo.App.1987), a position Kawasaki disputed.

The situation as between Silvia and Kawasaki as trial commenced was further complicated by a settlement plaintiffs negotiated with Silvia. In a pre-trial agreement, Silvia paid plaintiffs $50,000.00 and in return, plaintiffs agreed they would not execute on any of Silvia's assets should the trial result in a verdict and judgment against Silvia. The agreement also required that Silvia remain as a party defendant in the case and that he confess liability. The settlement agreement conforms to the provisions of § 537.060, RSMo 1986 and its terms were observed by Silvia who, so far as the trial jury was informed, continued in the case as a co-defendant with Kawasaki. The effect of the settlement was not only to conclude the amount of Silvia's liability to plaintiffs, but also to give Silvia immunity from any claims by Kawasaki for contribution on account of payments Kawasaki must make on the judgment. Lowe v. Norfolk and Western Ry. Co., 753 S.W.2d 891 (Mo. banc 1988). Thus, Kawasaki stands liable for payment of the entire judgment without aid of contribution from Silvia, less only the payment appellants have already received.

We turn now to the issues raised by the appeal.


The first question requiring consideration is whether the trial court's order granting Kawasaki a new trial was based upon the court's determination that the verdict for appellants was against the weight of the evidence. Kawasaki argues that it was and that this court's review ends at this point because, under Rule 78.02, a trial court has discretion to grant one new trial on this ground. Such a ruling is presumptively correct and may be disturbed only in the event of a manifest abuse of discretion. Phillips v. Phillips, 443 S.W.2d 144, 146 (Mo. banc 1969).

The foregoing is subject, however, to the qualifications imposed by Rules 78.03 and 84.05. Under the former, the trial court is required to specify of record the ground or grounds on which a new trial is granted. Rule 84.05 provides that if a new trial is granted without an accompanying specification of the ground, the presumption then shifts to an assumption of error with the burden being upon the respondent to show prejudicial error warranting a new trial. Whether a new trial order complies with the rules cited above is a question for the appellate court to decide. Follman Properties Co. v. Henty Constr. Co., 664 S.W.2d 248, 250 (Mo App.1983).

Appellants contend the order entered in this case does not comply with Rule 78.03 in that it fails to specify as the ground, or a ground, for granting the new trial, a determination that the verdict was against the weight of the evidence and that the new trial was granted for that reason. If the new trial order is deficient as appellants claim, then there is no presumption the new trial was granted on discretionary grounds. Hammond v. Crown Coach Co., 364 Mo. 508, 263 S.W.2d 362 (1954). Because the trial court has the exclusive prerogative to grant one new trial where it concludes the verdict was against the weight of the evidence, a failure by the trial court to so order eliminates that issue from the case. It is not within the authority of the appellate court to re-weigh the evidence. We are therefore called upon to decide in this appeal only the question of whether the trial court did or did not exercise its discretionary authority within the constraints of Rules 78.02, 78.03 and 84.05. If it did not, then the jury verdict is conclusive on the evidence, subject of course to the requirement that plaintiffs' evidence presented a submissible case, an issue considered later in this opinion.

Quite apparently, as the dispute between the parties on this point indicates, the new trial order entered by the court in this case was not specific on the question of whether it issued because the trial court found the verdict to be against the weight of the evidence. Instead, the court employed the ambiguous and frequently criticized practice of not stating the grounds for granting a new trial, but referred instead to several paragraphs of Kawasaki's post-trial motion. In the relevant particulars, the order reads as follows:

* * * defendant's Alternative Motion for New Trial should be and is hereby sustained for the reasons stated in paragraphs 6, 7 and 8 of Defendant Kawasaki Motors Corp. USA's Alternative Motion for New Trial filed March 31, 1989.

The above order is patently suspect when presented as one resting on a discretionary ground as urged by Kawasaki. If a trial court decides to employ the authority granted under Rule 78.02, it may order a new trial reciting that the verdict is against the weight of the evidence and do so with virtual certainty that the ruling is immune from appellate interference. Moreover, any references to points of trial error as additional grounds for granting the new trial add nothing to the efficacy of the order but serve instead to confuse the basis for the decision. If in this case, the trial court had in fact concluded that the verdict for appellants was against the weight of the evidence, it need only have entered its order so stating and the cause of controversy in this appeal would have been eliminated.

Of course, as the section of the new trial order quoted above indicates, that order does purport to state grounds for the ruling, although obliquely stated through reference to Kawasaki's motion. This practice of adopting "shotgun" assignments of error is not favored. Caldwell v. St. Louis Pub. Serv. Co., 275 S.W.2d 288 (Mo.1955). The consequence of such practice is to leave the parties and the reviewing court in doubt as to the precise issues involved in the decision and to complicate the review process. This result is even more onerous in a case such as this where the uncertainty lies not only in which...

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