Nance v. Kimbrow

• Decision Date: 22 February 1972
• Docket Number: No. 1,No. 56297,56297,1
• Citation: 476 S.W.2d 560
• Parties: Kenneth J. NANCE and Connie Nance, his wife, Respondents, v. James Larry KIMBROW, Appellant
• Court: Missouri Supreme Court

Page 560

476 S.W.2d 560

Kenneth J. NANCE and Connie Nance, his wife, Respondents, v. James Larry KIMBROW, Appellant.

No. 56297.

Supreme Court of Missouri, Division No. 1.

Feb. 22, 1972.

Ted M. Henson, Jr., Ted M. Henson, Poplar Bluff, for respondent Kenneth J. Nance.

Hyde, Purcell & Wilhoit, Poplar Bluff, for appellant.

JACK P. PRITCHARD, Special Judge.

The sole issues are whether the trial court erred in granting respondents' motion for new trial on its finding 'that the verdict of the Jury, rendered on the 29th day of May, 1970, and fixing the Plaintiffs' damages at Twelve Hundred Dollars ($1,200.00) is so grossly inadequate as to shock the conscience of the Court * * *,' and whether it erred in granting the new trial on the issue of damages only, the rulings on both issues being claimed to have been an abuse of the trial court's discretion.

Kenneth J. Nance's prayer for damages was for $20,000.00. His spouse, Connie Nance, prayed for damages for her loss of consortium by reason of Kenneth's injuries in the amount of $5,000.00, but dismissed her claim to relief prior to trial. The verdict of the jury was unanimous. The evidence was that Kenneth had clinic, doctor and hospital bills totaling $704.40, and that he lost wages of $500.00 as a result of the accident. There was medical evidence that Kenneth suffered a permanent injury from the accident, it being a separation of the acromion-clavicular junction, which will cause him to have a decreased ability to lift heavy weights and to have a permanent weakness in his shoulder.

Civil Rule 78.01, V.A.M.R., provides in part that 'Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.' One new trial granted upon this ground has often been held to be an exercise of the court's discretion, Pretti v. Herre, Mo., 403 S.W.2d 568; Underwood v. Brockmeyer, Mo., 318 S.W.2d 192, and it will not be disturbed unless there is an abuse of discretion as where the benefited party failed to make a submissible case, Overbey v. Fodde, Mo., 420 S.W.2d 510. It is further the rule that the effect of granting a new trial on the ground of inadequacy of the verdict is to grant the new trial on the ground that it is against the weight of the evidence, Wessels v. Smith, Mo., 362 S.W.2d 577; McFarland v. Wildhaber, Mo., 334 S.W.2d 1. The record shows that Kenneth received substantial injuries which were proximately caused by the accident, and therefore the trial court in no way abused its discretion in awarding him a new trial.

This case was submitted to the jury under the res ipsa loquitur doctrine (which is no bar to the trial court's exercise of discretion in awarding a new trial because the verdict is against the weight of the evidence, Markman v. Bi-State Transit System, Mo., 457 S.W.2d 769, 771). The facts show that respondent was riding in appellant's car being driven by him on a gravel road and the car ran off the road and hit a utility pole thus injuring respondent. A State Highway Patrolman testified that appellant told him 'I started to slow down and it was on a gravel road, it just slid and I hit a telephone pole.' Respondent's testimony was that the car went off the west side of the road and hit the pole, before which he thought it hit some fence posts. Appellant's own version of the accident was: 'I was traveling north on the gravel road as was stated before and lost control as I was going to shift and I got on the brake and it went into the ditch and hit the telephone pole. Q. Did you hit anything prior to hitting the telephone pole? A. It knocked over some fence posts and then it hit a culvert and then the telephone pole.' For quite obvious reasons under these facts appellant did not contend in the trial court by filing a motion for new trial (Cf. Sapp v. Key, Mo., 287 S.W.2d 775, 780) that there was no submissible case made. Appellant's liability is thus in effect conceded. As was said in Artstein v. Pallo, Mo., 388 S.W.2d 877,...