Nelson v. Kansas City

• Citation: 360 Mo. 143,227 S.W.2d 672
• Decision Date: 13 February 1950
• Docket Number: No. 41369,41369
• Parties: NELSON v. KANSAS CITY.
• Court: United States State Supreme Court of Missouri

Page 672

227 S.W.2d 672

360 Mo. 143

NELSON v. KANSAS CITY.

No. 41369.

Supreme Court of Missouri, en Banc.

Feb. 13, 1950.

Rehearing Denied March 13, 1950.

David M. Proctor, City Counselor, John J. Cosgrove, Assistant City Counselor, T. James Conway, Assistant City Counselor, Kansas City, attorneys for Kansas City, Missouri.

Walter W. Calvin, Kansas City, attorney for respondent.

CLARK, Judge.

Respondent, as plaintiff, in a personal injury action prayed for judgment in the sum of $10,000. At the close of all the evidence defendant moved for a directed verdict on the ground that no submissible case was made. That motion was overruled and plaintiff secured verdict and judgment for $1100. He filed a motion for new trial stating among other allegations that the verdict is grossly inadequate. The court sustained the motion solely on that ground and ordered a new trial on the question of damages only. Defendant appealed from that order without filing any after trial motion.

Respondent contends that, as appellant did not file any after trial motion, the only question here is whether the trial court abused his discretion in granting a new trial on the ground of the inadequacy of the verdict. He says that evidence as to liability is not reviewable, but only evidence pertaining to the extent of respondent's injuries.

Appellant contends that we have the right and duty to review the evidence as to liability.

We must sustain appellant's contention because, if respondent made no submissible case and therefore is not entitled to any damages, he should not be granted a new trial solely on the ground that the verdict in his favor is inadequate. If the evidence was insufficient to submit the question of appellant's liability, of course a verdict for respondent in any amount would be excessive, regardless of the extent of his injuries. In cases where new trials have been granted for erroneous instructions, we have frequently examined the evidence as to liability and have refused to sustain the granting of a new trial to a plaintiff where no submissible case was made. Chappee v. Lubrite Refining Co., 337 Mo. 791, 85 S.W.2d 1034; 101 A.L.R. 471.

The facts most favorable to respondent Nelson, as shown by the evidence, are clearly and accurately stated in an opinion prepared by one of our Commissioners which opinion failed of adoption. We adopt that statement as follows:

'Nelson had been an employee in the fire department of the City and was on the retired list. On September 14, 1945, the day Nelson suffered the injury complained of, he was a fire inspector for Trans World Airlines. His duties were to inspect the various buildings and equipment of his employer at the Kansas City Municipal Airport. The airline company used the airport under a lease from the City. A high fense had been constructed extending from the Administration Building to the Terminal Building. We need not detail the facts disclosing the exact position of this fence and the various routes of the plaintiff in performing his duties. Suffice to say that in this fence there was a gate which was kept locked and was not used by the employees or by the general public. In fact, plaintiff testified that the gate was used only on special occasions. It was used when the President of the United States arrived at the airport, also when General Eisenhower made a visit to the city, and again when the President of Mexico was in Kansas City. There was evidence that the gate was also used when a lage cargo was to be delivered at the airport. In such cases permission would be obtained to use the gate. The key was kept at the offices of the Field Superintendent. Nelson's employer had no key for this gate. On the afternoon of September 14, 1945, President Truman was to arrive at the airport. This fact was generally known and a large number of people were assembled at the port. It was decided to allow the President and his party to pass through the gate in question in order to escape the large, curious crowd and the traffic congestion. The key was obtained for the gate and four officers [police] were stationed at the gate for the purpose of opening it to permit the President and his party to pass through. It was to be used by no one else. While these officers were so stationed and before the President arrived, Nelson was on duty making his daily inspections. He testified that he knew the President was to pass through the gate in question and that he went there for the purpose of seeing the President. Note what occurred as testified to by Nelson.'

Nelson testified that when he came to the gate it was closed and two city police and two auxiliary policemen were watching 'so that the gate...