Robinson v. Wampler, 50707

Decision Date10 May 1965
Docket NumberNo. 2,No. 50707,50707,2
Citation389 S.W.2d 757
PartiesWilliam ROBINSON, Plaintiff-Respondent, v. Elsie WAMPLER, Defendant-Appellant, and Edsel French, Defendant
CourtMissouri Supreme Court

George R. Gerhard, St. Louis, William L. Mason, J., Galena, for respondent.

Walter F. Timm, James E. McDaniel, Barnard, Timm & McDaniel, St. Louis, for Elsie Wampler, defendant-appellant.

BARRETT, Commissioner.

On August 10, 1962, the plaintiff-respondent, William Robinson, was involved in a collision of motor vehicles on U. S. Highway 67 near Bonne Terre. To recover $68,050.00 for his personal injuries and losses and $42,650.00 for his wife's injuries and his consequential losses the respondent Robinson instituted this action in two counts against Edsel French and the appellant Elsie Wampler. Franch in effect defaulted and the jury returned a verdict against him and in favor of Robinson for $50,000.00 on the first count and $30,000.00 on the second count and this appeal is not concerned with that verdict and judgment. The jury, however, returned a verdict in favor of Elsie Wampler and as to her Robinson filed a motion for a new trial alleging among other grounds that the verdict in her favor was against the weight of the evidence. The trial court sustained the motion for new trial upon the specific ground that the 'verdict is against the weight of the evidence' and Mrs. Wampler has appealed and this necessarily is the only phase of the cause with which this court is now concerned.

The essence of the appeal is the contention that the court erred in granting a new trial on the ground that the verdict was against the weight of the evidence 'because plaintiff failed to make a submissible case against defendant Wampler.' However, the appellant has complicated consideration of the essential merits of the appeal by two supplemental contentions: (1) that 'because plaintiff failed to file a motion for directed verdict at the close of plaintiff's case or at the close of all the evidence' he voluntarily submitted the issue of fact to the jury and was therefore in no position to request a new trial on the weight of the evidence, and (2), she argues, assuming that there was substantial evidence to support the submission 'nevertheless the trial Court abused its discretion in granting plaintiff a new trial because the overwhelming weight of the evidence was in favor of defendant Wampler and against plaintiff.'

The latter argument will be disposed of finally in considering the essential merits of the appeal but in passing it must be noted that in several of the cases relied on 'the trial court in sustaining the motion for a new trial did not act upon discretionary grounds.' Wallace v. Whitzel, Mo., 324 S.W.2d 157, 159; Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383.

The first point, founded solely on plaintiff's failure to move for directed verdicts (RSMo 1959, Secs. 510.280, 510.290, V.A.M.S.), while indeed novel and at first glance caused some concern has only served to detract from the principal issue and it is not necessary to consider the contention at length. In the first place the appellant herself moved for directed verdicts and so the trial court was in fact apprised of the problem of whether plaintiff made a submissible case. Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569, 572. But more directly to the point is the fact that it is only after an adverse verdict that the plaintiff in the ordinary negligence action would have either the opportunity or the necessity of complaining that the verdict was against the weight of the evidence, an objection that does not necessarily involve or include whether plaintiff might be entitled to a directed verdict. Generally, therefore, a motion for new trial is the proper method or remedy for raising the objection that the verdict was against the weight of the evidence. 66 C.J.S. New Trial Sec. 69, p. 203.

In the connection, while exceptions in the conventional sense have been abolished (Civil Rule 79.01, V.A.M.R.), the essence of the matter was summed up in Lee v. Baltimore Hotel Co., 345 Mo. 458, 462, 136 S.W.2d 695, 697, in which the court on its own motion granted a new trial: 'There can be no question about the inherent power of the trial court to set aside a verdict and grant a new trial, at any time during the term in which it is returned, in the reasonable exercise of its discretion, irrespective of grounds stated in a motion for new trial. * * * Exceptions, while essential to preservation for appellate review of matters outside the record proper, are immaterial in considering the propriety of the trial court's action in granting a new trial, because 'the trial court may grant a new trial on account of any erroneous ruling made by it, whether excepted to or not.'' Seldom, almost never it may be said, would a plaintiff in a conventional common-law negligence action be entitled to a directed verdict. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. In any event the trial court has the broad discretionary power to grant one new trial on the ground that the verdict is against the weight of the evidence (Civil Rule 78.01; V.A.M.S. Sec. 510.330), and having done so an appealing defendant's claim that no case was made 'is directed to the sufficiency of the evidence to make a case for the jury and presents the same question that arises upon a demurrer to the evidence.' Lindsey v. Vance, 337 Mo. 1111, 1114, 88 S.W.2d 150, 151. Of course, and from this principle the appellant may have been led to the present collateral contention, while the fact of a verdict's being against the weight of the evidence is ground for a new trial, the defendant's right to a directed verdict of necessity negatives the plaintiff's right to a new trial. 66 C.J.S. New Trial Sec. 70, p. 226. 'In other words, plaintiff has no right to a new trial when the evidence in her favor is not sufficient to take the case to the jury. It is much the same question as is presented on a demurrer to the evidence, and, if such a demurrer should have been granted, no new trial can be granted on this or any other ground. A failure of evidence to support a verdict for plaintiff renders a case dead, and it cannot be resurrected by a motion for new trial.' Payne v. Reed, 332 Mo. 343, 347, 59 S.W.2d 43, 44.

And now in approaching the essential merits of the appeal, whether plaintiff made a submissible case, and at the risk of tiresome repetition, it appears to be necessary to again note, at least from a few of the more recent cases, the general rules applicable once the trial court has granted a plaintiff a new trial on the specific ground that the verdict in favor of the defendant is against the weight of the evidence. 'The trial court is vested with an inherent and broad discretion in granting one new trial upon the ground the verdict and judgment are against the weight of the evidence. * * * And its ruling upon that ground will not be disturbed, except in case of manifest abuse. * * * The rule is sometimes expressed by saying 'that the granting of a new trial by the trial court will not be interfered with on appeal where there is substantial evidence to sustain the trial court's view, or, putting it another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.'' Dawson v. Scherff, Mo., 281 S.W.2d 825, 831 (a case in which a defendant was granted a new trial on the ground that the verdict in favor of the plaintiff was against the weight of the evidence.) On the other hand, when a plaintiff was granted a new trial the court affirming the order said, 'In determining whether the trial court properly exercised its discretion in awarding a new trial on the ground that the verdict was against the weight of the evidence, a discretionary ground, we must examine the record to ascertain if there was sufficient substantial evidence to justify the submission of plaintiff's case to a jury. If plaintiff failed to make out a submissible case, the order granting a new trial to plaintiff, after verdict for defendant, would be arbitrary and an abuse of the court's discretion.' Schmidt v. Allen, Mo., 303 S.W.2d 652, 655. Within the framework of these general rules there are two lines of cases, depending on the particular facts, those in which it was demonstrable upon the record that there were no circumstances from which the inference of negligence was permissible and hence there was an abuse of discretion in the court's granting new trials and, second, those in which by the same standards the inference of negligence was permissible from the circumstances and therefore the orders granting new trials were sustained. Berry v. Harmon, Mo., 323 S.W.2d 691, 693.

In contending here that the respondent Robinson did not make a case and that therefore the trial court erred in granting a new trial on the weight of the evidence the appellant Wampler 'contends she can demonstrate to this Court that plaintiff's testimony against defendant Wampler is not of the 'substantial' quality required to justify the submission of the case.' She points to contradictions in the testimony of the respondent's independent eyewitness Bailey and argues that by reason of the 'inconsistencies' his testimony is 'incredible.' She then applies the same tests to the respondent Robinson's testimony and to certain of the exhibits, photographs and parts of the three automobiles involved, and argues that they 'become(s) one of the physical possibilities or impossibilities' and that they fail to show 'any impact damage' between respondent's Pontiac and appellant's Chrysler and finally she 'suggests plaintiff's evidence is contrary to the physical facts.' She then sets forth what she denominates four 'physical factors' which she says demonstrate that 'there was no sufficient substantial evidence to warrant the submission of any one of said three instructions' hypothesizing the plaintiff's...

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