Sapp v. Key
| Citation | 287 S.W.2d 775 |
| Decision Date | 12 March 1956 |
| Docket Number | No. 1,No. 44769,44769,1 |
| Parties | William A. SAPP, Respondent, v. Edna Mae KEY and Mildred Marie Bent, Executrices under the last will and testament of T. M. Matt, deceased, Appellants |
| Court | United States State Supreme Court of Missouri |
F. X. Cleary, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellants.
Tenney, Dahman & Smith, E. H. Tenney, Jr., St. Louis, for respondent.
COIL, Commissioner.
Respondent William Sapp, hereinafter called plaintiff, was a passenger in a panel truck being operated by one T. M. Matt, when, at about 9:30 p. m. on July 1, 1950, Matt drove his truck into the rear of an automobile which was stopped on Macklind Avenue at the place where that street intersects the south side of Oakland Avenue. Plaintiff sued Matt for $35,000 damages for personal injuries allegedly sustained as a result of the collision. During the pendency of the action, Matt died and his executrices were substituted. Plaintiff had verdict and judgment for $1,000. He filed a motion for new trial on the issue of damages only on the ground that the amount of the judgment was grossly inadequate. Appellants, hereinafter called defendants, did not file a motion for new trial. The trial court sustained plaintiff's motion for new trial on the issue of damages only and defendants appealed from that order.
Defendants contend that the trial court erred in granting plaintiff a new trial because, they say, the record demonstrates that the trial court failed to exercise judicial discretion in awarding the new trial but, on the contrary, acted arbitrarily. Defendants correctly assert that the discretion vested in a trial court is a judicial discretion as opposed to a power to act arbitrarily. The trouble with defendants' position in the instant case is that in our view the record does not demonstrate that the court failed to exercise its judicial discretion in ruling plaintiff's motion for new trial.
Defendants, to sustain their contention to the contrary, point to these matters: that the evidence on the question of plaintiff's injury was such that a jury reasonably could have found that plaintiff sustained only slight lacerations of his knees and forehead; that the trial court throughout the trial interrupted and at times 'took over' the examination of various medical witnesses in such manner as to indicate that the trial judge favored plaintiff's claim; that the trial court erroneously forced into the case the fact that defendants' decedent had insurance covering his liability, if any, for the casualty out of which plaintiff's claim arose; that the trial court made this statement after the jury had retired to deliberate 'that on the basis of the evidence heard here in the trial which is concluded * * * it is the Court's feeling that a verdict for the defendants would be a verdict against the weight of the evidence'; that the trial court, after having sustained the plaintiff's motion for new trial on the issue of damages only, thereafter amended that order, nunc pro tunc, by adding the words 'because of the inadequacy of the amount of the verdict' and filed a memorandum in which the court stated that while there was no necessity for the nunc pro tunc order, there was likewise no objection to making it, and that inasmuch as the new trial order was being made within 30 days after the entry of the judgmnet, the court was willing that 'the record reflect this order granting the new trial on the issue of damages only because of the inadequacy of the verdict is made on the Court's own motion, as well as upon the motion of plaintiff.' Defendants say that the foregoing matters and incidents demonstrate that the trial court
For present purposes, we shall assume, without deciding and without any intimation that we have so decided, that the frequent interjections by the trial judge during the examinations of medical witnesses were such as to cause the jury to believe that the court favored plaintiff's claim, and we shall assume further that the court erred in causing the evidence as to defendants' insurance coverage to be heard by the jury; and it is true that the record does reflect both that the trial court made the statement concerning its then belief as to the weight of the evidence and the statement, noted above, with respect to the motion for new trial being sustained on the court's own motion. Making those assumptions and giving full effect to the two matters reflected by the record, we think it is apparent that those matters and incidents, neither separately nor cumulatively, demonstrate that the trial court failed to exercise its judicial discretion in passing on plaintiff's motion for new trial.
The trial was concluded on December 2, 1954; plaintiff's motion for a new trial on the damages issue only was filed on December 8, 1954; plaintiff's motion was sustained on December 17, 1954, after, the record shows, 'the said motion of plaintiff for a new trial on the issue of damages only was heard by the Court * * *.' Even if we assume that the unfortunate remark of the trial court, made while the jury was deliberating, demonstrated some anger or pique on the court's part at the time, still, in order to sustain defendants' present contention, we should have to hold that by reason thereof and the other mentioned incidents, the court was incapable of exercising judicial discretion 15 days thereafter. A basis for such a conclusion is not demonstrated. And the memorandum explaining the nunc pro tunc order and permitting the record to reflect that the new trial was granted on the court's own motion as well as on plaintiff's motion, was, so far as we may determine from the record, simplay an attempt to prevent any possible later technical objection to affect the validity of the trial court's order sustaining plaintiff's motion. For the reasons stated, we hold that defendants have failed to sustain their contention that the trial court failed to exercise its judicial discretion in ruling plaintiff's motion.
Defendants contend also that the trial court erred in awarding plaintiff a new trial on the issue of damages only because 'plain error' against defendants was committed in the course of the trial on the liability issue. As we understand defendants' supporting argument, there are two separate contentions involved. One, that in determining whether a trial court abused its discretion in ordering a new trial on the issue of damages only, an appellate court should consider and review any alleged errors committed during the trial which are urged on appeal by defendants whether or not those alleged errors were preserved in a motion for new trial; and if the reviewing court finds that error prejudicial to defendants occurred in the trial affecting the liability issue, then, it has been demonstrated that the trial court did abuse its discretion in granting a new trial on the damages issue only, because no new trial should ever be granted on one issue where prejudicial error in the trial occurred as to the other issue. The other contention, as we understand, is that, in any event, an alleged error here urged as having occurred at the trial was 'plain error' affecting the substantial rights of defendant to the extent that we, in our discretion, should conclude that manifest injustice or miscarriage of justice has resulted. Supreme Court Rule 3.27, 42 V.A.M.S.
Before considering the abovenoted contentions, we should make it clear that defendants do not here contend that if the trial court did exercise its judicial discretion, and we have held that it did, the trial court abused that discretion in so far as it ruled that the amount of damages contained in plaintiff's judgment was grossly inadequate. Suffice to say, therefore, as to the inadequacy of damages question, that the record shows that whether the jury's award of damages was adequate depended upon whether the jury found that plaintiff sustained only the superficial injuries heretofore mentioned or whether he sustained, in addition, a herniated or a protruding intervertebral disc as a result of the accident. There was substantial probative evidence to justify a trial court, upon weighing all the evidence, to reasonably conclude that the $1,000 awarded as damages was grossly inadequate. This, because the trial court reasonably could have found that the failure of the jury to award any damages for the disc injury was in fact a finding against the weight of the evidence. The effect of the trial court's order granting a new trial on the ground of the inadequacy of the damages was...
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