Millar v. Berg
| Decision Date | 08 September 1958 |
| Docket Number | No. 46478,No. 1,46478,1 |
| Parties | Martin G. MILLAR, Respondent, v. E. A. BERG, Appellant |
| Court | Missouri Supreme Court |
Evans & Dixon, John C. Shepherd, St. Louis, for appellant.
Henry Ebenhoh, Walter S. Berkman, St. Louis, for respondent.
COIL, Commissioner.
Plaintiff below claimed $25,000 as damages for personal injuries allegedly sustained when he was struck by an automobile owned and operated by defendant. The jury found for plaintiff and assessed his damages at $4,500. The trial court sustained plaintiff's motion for new trial on the issue of damages only on the ground that the verdict was grossly inadequate. Defendant, who filed no after-trial motion, has appealed and contends that the court erred because it should have sustained defendant's motion for a directed verdict at the close of all the evidence (and thus that plaintiff was not entitled to any damages) and because the trial court abused its discretion in finding that the $4,500 verdict was grossly inadequate. Plaintiff below, respondent here, contends that the alleged error of trial court in overruling defendant's motion for directed verdict at the close of all the evidence has not been properly preserved for appellate review; that, in any event, the trial court correctly overrulec defendant's motion for a directed verdict; and that the trial court did not abuse its discretion.
In Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, plaintiff had the verdict, defendant's motion for new trial was overruled, and defendant appealed from the ensuing judgment. Defendant contended that plaintiff has failed to make a submissible case and that the trial court had erred in giving an instruction. Defendant had failed to move for a directed verdict at the close of all the evidence and had failed in any after-trial motion to assign as error the action of the trial court in submitting the case.
After reviewing the pertinent statutes, we there said: 'It appears from the foregoing statutory provisions that it is necessary in jury-tried cases, in order to preserve the question of submissibility for appellate review, to file a motion for directed verdict at the close of all the evidence and to assign the error of the court in having failed to have directed such a verdict in an after-trial motion, either one for a new trial or one to set aside a verdict and judgment and enter judgment for the opposite party.' 269 S.W.2d 36. We then cited a number of cases involving somewhat analogous problems and pointed out that in all of those cases where a review of the question had been had, there had been either a motion for directed verdict filed at the close of all the evidence of an after-trial motion specifically raising the issue. In the Ukman case, defendant had properly preserved for appellate review his new-trial assignment that plaintiff's instruction submitting defendant's humanitarian negligence was not supported by any evidence, and thus the question of submissibility had to be determined in any event. Consequently, we specifically reserved and refused to pass upon the question 'whether defendanta' failure to properly preserve the question of submissibility for appellate review would prevent our examination thereof, or would require in this case, or if not, in what cases, the application of Supreme Court Rule 3.27, 42 V.A.M.S.' 269 S.W.2d 37.
We did not refer in the Ukman case to Supreme Court Rule 3.23, 42 V.A.M.S., which provides in part: 'Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial; except * * * questions authorized by Section 113 [V.A.M.S. Sec. 510.290] to be presented in a motion for judgment, * * *.' (Italics ours.) Section 510.290 () provides in part:
Thus, under the provisions of S.C.Rule 3.23, supra, an allegation that the trial court erred in denying a motion for directed verdict filed at the close of all the evidence is not an allegation which 'must be presented to the trial court in a motion for new trial.' It is clear to us, however, that the reason the exception noted above was set forth in S.C.Rule 3.23, supra, was because there was a specific statutory method set forth in Section 510.290, supra, for after-trial presentation of that alleged error in a motion other than a motion for new trial and, consequently, in the light of that specific procedure, it was deemed expedient to except that allegation of error from mandatory inclusion in a motion for new trial. It seems to us, however, that the legislature, by the provisions of Section 510.290, supra, intended that the allegation of error, that the trial court denied a motion for directed verdict at the close of all the evidence, should be preserved for the attention of the trial court and for appellate review by the method prescribed in that section.
In Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672, however, this court held to the contrary. There, plaintiff obtained a verdict and judgment for $1,100 and the trial court sustained his motion for new trial on the issue of damages only on the ground that the verdict was grossly inadequate. Defendant filed no after-trial motion and appealed from the court's order sustaining plaintiff's motion for new trial. Defendant had filed a motion for directed verdict at the close of all the evidence. The contention was there made, as here, that because appellant had filed no after-trial motion, he had not preserved the question of submissibility for appellate review. This court there held that the question was reviewable. We said that if no submissible case was made, plaintiff was not entitled to any damages and therefore should not have a new trial on the ground that his damages were inadequate. The only averred reason assigned for the ruling was to point out that we had frequently reviewed the question of submissibility on defendant's appeal after a trial court had granted plaintiff a new trial after a defendant's verdict on the ground that a defendant's instruction was erroneous.
It should be pointed out, however, that the frequently stated fact and the often applied principle resulting from it, that errors in instructions are immaterial on appeal if plaintiff's case should not have been submitted to a jury, have nothing whatever to do with the question of whether the submissibility error has been preserved for appellate review. But for reasons which will appear, we find it unnecessary to reexamine the question of whether a defendant's failure to have preserved the so-called submissibility error as provided in Section 510.290 or by inclusion in a motion for new trial will prevent the appellate review thereof, even though the complaining party has filed a proper motion for directed verdict at the close of all the evidence.
We reaffirm our statement in Ukman v. Hoover, supra, however, that the proper and prescribed way to preserve the question of submissibility for appellate review, is to file a motion for directed verdict at the close of all the evidence and to thereafter, in the event of an adverse verdict, assign as error the failure of the trial court to have directed such a verdict in an after-trial motion either for a new trial or one to set aside a verdict and judgment and enter judgment for the opposite party. Further, we call attention to the fact that, as pointed out in Sapp v. Key, Mo., 287 S.W.2d 775, 780, appellants are precluded from urging on appeal all errors (not specifically excepted by S.C.Rule 3.23) which are not presented to the trial court in a motion for new trial. That, by reason of the mandatory language of S.C.Rule 3.23. The C. & O. Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 739.
It is the settled rule that a defendant who wishes to urge that the trial court erred in submitting plaintiff's claim to the jury must have filed a motion for directed verdict at the close of all the evidence. By his failure to have filed such a motion, he has, in effect, requested the court to submit the case to the jury, and he may not thereafter complain of that which he voluntarily requested the court to do. Hauber v. Gentry, Mo., 215 S.W.2d 754, 759; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914, 916; Silberman v. Hicks, Mo.App., 231 S.W.2d 283, 285; Lindsay v. McLaughlin, Mo.App., 311 S.W.2d 148, 149.
Thus, while it is true that the denial of a motion for directed verdict at the close of all the evidence is a fact which the record should show as prerequisite to the contention on appeal that plaintiff failed to make a submissible case, still, as heretofore stated, a re-examination of the further question of whether the alleged error of the trial court's having denied the motion must have been assigned in an after-trial motion in order to be preserved for appellate review is not only unnecessary but would accomplish nothing. That is because it is the law that even though the motion for directed verdict filed at the close of...
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