Moore v. Glasgow

Decision Date23 March 1963
Docket NumberNo. 8135,8135
PartiesL. P. MOORE, Plaintiff-Appellant, v. William H. GLASGOW, Defendant-Respondent.
CourtMissouri Court of Appeals

Robert J. Sanders, Kansas City, Wm. Duke Hiett, Houston, for plaintiff-appellant.

Strubinger & MacElhern, Kansas City, of counsel, for plaintiff-appellant.

Hubert Lay, Houston, Green & Green, West Plains, for defendant-respondent.

STONE, Judge.

In this damage suit for personal injuries claimed to have resulted from a vehicular collision about 5:30 A.M. on September 27, 1958, on U. S. Highway 60 about three miles west of Cabool, Missouri, plaintiff had a jury verdict for $3,700 at the conclusion of the trial on February 23, 1962. On March 26, 1962, the court entered the following order on defendant's timely motion for new trial: 'Now on this day motion for new trial argued orally. Upon plaintiff filing remittitur of $1200 on or within 15 days from 3-26-62, motion for new trial shall stand overruled, otherwise motion for new trial stands sustained and new trial granted defendant.' Having refused to make such remittitur, plaintiff perfected this appeal.

On June 4, 1962, plaintiff's-appellant's counsel filed with our clerk a 'Statement Alleging Error Made Pursuant to the Provisions of Rule 83.06(b),' 1 in which demand was made 'that respondent (defendant) prepare the original brief' because (so plaintiff's counsel asserted) 'the trial court erred in omitting to specify the ground or grounds on which it granted a new trial.' See Rule 78.01; Section 510.330. Counsel for defendant-respondent promptly took issue, contending that the above-quoted order 'clearly indicated that the motion (for new trial) was sustained because the court thought the verdict excessive' [Connoley v. Beyer Crushed Rock Co., 355 Mo. 684, 689, 197 S.W.2d 653, 656(7)] and insisting that the burden of sustaining the order granting a new trial did not rest on respondent. With opposing counsel thus in open disagreement as to which party was obligated to prepare and serve the original brief, we treated plaintiff's-appellant's 'Statement Alleging Error' as a motion and entered an order denying it. Regardless of whether (as plaintiff's counsel subsequently has complained) we erred in so treating the 'Statement Alleging Error,' our order thereon (which at least served the practical purpose of advising all interested counsel of our view that plaintiff-appellant remained under obligation to prepare and serve the original brief) did not impinge upon any substantial rights because, as will become apparent from our discussion, we remain of the opinion that the above-quoted order sufficiently specified simple excessiveness of the verdict as the ground on which the motion for new trial was sustained. Connoley, supra.

Still insisting that he should not have been required to file the original brief, the first point in plaintiff's brief is that 'the trial court erred in failing to specify the ground upon which it relied in purporting to grant defendant a new trial unless plaintiff file a remittitur.' Under this point, plaintiff cites numerous cases 2 recognizing and applying the provisions of procedural rules adopted by our Supreme Court to the effect that, '(w)hen a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial * * * the burden of supporting such action is placed on the respondent,' and 'it shall never be presumed that the new trial was granted on any discretionary grounds.' Rule 83.06, subds. (b) and (c). (All emphasis herein is ours.) Of course, we recognize that the quoted rule means exactly what it says, but its applicability in this (or, for that matter, in any other) case depends upon the italicized predicate, i. e., the grant of a new trial 'without specifying of record the ground or grounds on which the new trial is granted.'

Rule 78.01 [Section 510.330] plainly directs that '(e)very order allowing a new trial shall specify or record the ground or grounds on which said new trial is granted,' and Rule 83.06 spells out the procedural consequences of failure to comply with the quoted requirement of Rule 78.01. But, just how 'specific' must be the statement of the ground in the trial court's order remains, in some instances, a subject of inquiry and a source of difficulty. E. g., Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 669, 677. On the one hand, a general statement in the order that the motion for new trial is sustained for the giving of erroneous, misleading, confusing and prejudicial instructions [Newman v. St. Louis Public Service Co., Mo.App., 238 S.W.2d 43, 45(1), affirmed Mo. (banc), 244 S.W.2d 45, 46(1)] or for the admission of incompetent, irrelevant, immaterial, improper and prejudicial evidence [Goodman v. Allen Cab Co., 360 Mo. 1094, 1097, 232 S.W.2d 535, 537(1); Johnson v. Kansas City Public Service Co., 360 Mo. 429, 433, 228 S.W.2d 796, 797(1)] is not specific within the contemplation and meaning of Rules 78.01 and 83.06. The rationale of these holdings is that '(t)he ground stated is too general to furnish any information to the parties or to this (appellate) court concerning the real basis of the trial court's action.' Goodman, supra, 360 Mo. loc. cit. 1097, 232 S.W. loc. cit. 537.

On the other hand, our Supreme Court has pointed out that the purpose of the procedural provisions new embodied in Rule 78.01 [see Section 510.330 and former Supreme Court Rule 3.22] 'is to clothe the trial judge, who enjoys the advantage of meeting the parties and witnesses face to face, with a wide discretion to be exercised in the furtherance of substantial justice' [Donati v. Gualdoni, 358 Mo. 667, 673, 216 S.W.2d 519, 522(10)], and that, in reviewing the action of the trial court in sustaining a motion for new trial, the ground stated in the order should be given 'a broad and liberal construction.' Beer v. Martel, 332 Mo. 53, 60, 55 S.W.2d 482, 484(8); Donati, supra, 358 Mo. loc. cit. 673, 216 S.W.2d loc. cit. 521(7). Accordingly, in testing the sufficiency of specification of the ground upon which a new trial has been granted, our Supreme Court has not hesitated to draw appropriate implications or assumptions from the language of the order. Donati, supra, 358 Mo. loc. cit. 673, 216 S.W.2d loc. cit. 521; Beer, supra, 332 Mo. loc. cit. 60, 55 S.W.2d loc. cit. 484. See also Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 320.

The order under scrutiny here, in which the trial court declared that, 'upon plaintiff filing remittitur of $1200 * * * motion for new trial shall stand overruled, otherwise motion for new trial stands sustained,' clearly shows on its face that the court thought the verdict excessive. Connoley, supra, 355 Mo. loc. cit. 689, 197 S.W.2d loc. cit. 656. In this jurisdiction, excessive verdicts fall into two categories, to wit, (1) verdicts reflecting simple excessiveness, where the jury has made an honest mistake in weighing the evidence as to injury and in fixing the damages and has awarded a disproportionate sum under the rule of uniformity, and (2) verdicts reflecting excessiveness by misconduct, where the result usually savors of bias and prejudice engendered during trial. Numerous Missouri cases 3 recognize the vital distinction between the two categories of excessive verdicts and point out that simple excessiveness may be and usually should be cured by enforced remittitur, thus affording opportunity to avoid the delay and expense incident to retrial [Jones v. Pennsylvania R. Co., 353 Mo. 163, 171, 182 S.W.2d 157, 159(5); Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 1135, 219 S.W.2d 333, 340, 8 A.L.R.2d 710], but that excessiveness by misconduct vitiates the verdict in its entirety, cannot be cured by remittitur, and necessitates a new trial on all issues. Skadal v. Brown, Mo., 351 S.W.2d 684, 690(14); Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 627.

In the instant case the trial court obviously found simple excessiveness, for an order permitting a verdict to stand, as corrected by remittitur, 'presupposes a verdict resultant of the jury's unbiased, dispassionate and impartial consideration of the evidence.' Jones, supra, 353 Mo. loc. cit. 171, 182 S.W.2d loc. cit. 159; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 1148, 238 S.W.2d 674, 680. True, the order of the trial court might have been drawn in better form [compare Greco v. Hendricks, Mo., 327 S.W.2d 241, 242; Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 814-815, 230 S.W.2d 856, 857-858], and it would have been preferable for the court to have stated plainly and directly the ground on which the motion for new trial was sustained. Quinn, supra, 318 S.W.2d loc. cit. 323. Nevertheless, as the order comes to us, it may not be said to be 'too general to furnish any information to the parties or to this court concerning the real basis of the trial court's action.' Goodman, supra, 360 Mo. loc. cit. 1097, 232 S.W.2d loc. cit. 537. On the contrary, we think that the order clearly indicated that, if the required remittitur were not made, the motion for new trial would 'stand sustained' for simple excessiveness of the verdict or, in other words, 'because the court thought the verdict excessive; that is, the verdict was not supported by the evidence.' Connoley, supra, 355 Mo. loc. cit. 689, 197 S.W.2d loc. cit. 656. It follows that we are of the opinion, and accordingly hold, that the order was, as to the ground on which the new trial was granted, sufficiently specific to satisfy the requirement of Rule 78.01, and that, therefore, (1) the procedural consequences imposed by Rule 83.06 for failure to satisfy such requirement should not be visited upon instant defendant and (2) the trial court may not be convicted of prejudicial...

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