Spalding v. Robertson

• Citation: 206 S.W.2d 517,357 Mo. 37
• Decision Date: 10 November 1947
• Docket Number: 40082
• Parties: Paul Spalding and Lillian Inez Spalding, Appellants, v. Edwin Robertson
• Court: Missouri Supreme Court

206 S.W.2d 517

357 Mo. 37

Paul Spalding and Lillian Inez Spalding, Appellants, v. Edwin Robertson

No. 40082

Supreme Court of Missouri

November 10, 1947

Rehearing Denied December 8, 1947.

Appeal from Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.

Reversed and remanded (with directions).

Ward & Reeves for appellants.

(1) The verdict is so shockingly inadequate as to induce a conviction that the verdict was the result of either passion, prejudice or partiality on the part of the jury, and in such a situation it is the duty of the appellate court to grant a new trial, where the trial court fails to do so. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Fawkes v. Natl. Refining, 341 Mo. 630, 108 S.W.2d 8; Fischer v. St. Louis, 189 Mo. 567; Strange v Ardison, 65 S.W.2d 115; Ulrich v. Kiefer, 90 S.W.2d 140; English v. Thrower, 146 S.W.2d 667; Purkett v. Steele Undertaking Co., 63 S.W.2d 509. (2) The rule is the same with reference to the power of the appellate court to set aside a verdict whether it be excessive or inadequate, and this court has never hesitated to set aside a verdict which it thought excessive. In addition to the above cases, compare the following cases Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Marlow v. Baking Co., 333 Mo. 790, 63 S.W.2d 115; Coghlan v. Trumbo, 179 S.W.2d 705. (3) Defendant's Instruction G limited the compensation accruing to the plaintiff's to the funeral expense and the value of their son's services during his minority from which the jury were required to deduct the reasonable cost of the son's support and maintenance, etc. This instruction withdrew from the consideration of the jury the right of the jury to increase the pecuniary loss if they found aggravating circumstances, and in that respect it was in direct conflict with plaintiff's Instruction 4-P. The inadequacy of the verdict returned indicates that the jury was misled by defendant's Instruction G, and it was highly prejudicial. Sec. 3654, R.S. 1939; Marlow v. Baking Co., 333 Mo. 790, 63 S.W.2d 115; Williams v. Excavating Co., 230 Mo.App. 973, 93 S.W.2d 123. (4) Defendant's Instruction H given by the court told the jury that they should take into consideration in fixing plaintiff's pecuniary loss the alleged fact that the deceased had registered under the Selective Service Law and was subject to induction into the armed forces, the testimony pertaining to the same being incompetent, as hereinafter pointed out. This instruction permitted the jury to indulge in speculation and mere guess as to what could or would likely happen at some future date, and for that reason it was reversible error to give it. Wilson v. Kansas City Pub. Service Co., 193 S.W.2d 5. (5) This instruction was also erroneous in that it "singles out this particular fact or circumstance and gives it undue prominence and emphasis, savors of a comment on a single detached fact in the evidence" and is an indirect method of submitting an argument to the jury concerning the effect and import of the deceased having become a registrant under the Selective Service Law, even it such testimony had been competent. Dawes v. Starrett, 336 Mo. 897, S.W.2d 43; Hencke v. Ry. Co., 335 Mo. 393, 72 S.W.2d 798; Smith v. W.O.W., 179 Mo. 119; C.I.T. Corp. v. Hume, 48 S.W.2d 154; State ex rel. v. Day, 47 S.W.2d 147; Griffith v. Walesby, 91 S.W.2d 232. (6) This court erred in permitting James D. Sisk, clerk of the Selective Service Board of Pemiscot County, Missouri, to testify that the deceased had registered a few days before his death, and that although the deceased had not been classified, yet the Local Board of Pemiscot County was still inducting eighteen-year old men who were single and in good health. Wilson v. Kansas City Pub. Service Co., 193 S.W.2d 5. (7) This case should be reversed and cause remanded with direction to trial court to retry only the issue of the amount of the damages, under proper instructions, and then enter judgment for whatever sum may be found. Sec. 115, Code for Civil Procedure, Laws 1943, p. 388; Wilson v. Kansas City Pub. Service Co., 193 S.W.2d 5; Ault v. St. Louis Pub. Service Co., 194 S.W.2d 753.

Blanton & Blanton, Harry C. Blanton and David E. Blanton for respondent.

(1) The court did not err in giving Instruction G at the request of the respondent, omitting any reference to allegedly aggravating circumstances. The present contention that the instruction conflicts with appellants' Instruction P-4 was not presented to the trial court at the time the case was submitted to the jury and can not now be raised. Laws 1943 sec. 105a, p. 386, sec. 122, p. 389; Rules of Supreme Court, sec. 3.21; Stokes v. Wabash Ry. Co., 197 S.W.2d 305; Millaway v. Brown, 197 S.W.2d 987; Sollenberger v. K.C. Service Co., 202 S.W.2d 25; Johnessee v. Central States Oil Co., 200 S.W.2d 383. (2) As the appellants in their petition did not separately state the amounts claimed respectively as pecuniary and punitive damages, they were not entitled to have the question of alleged aggravating circumstances submitted to the jury. Laws 1943, p. 372, sec. 52; Kuehne v. Allen, 148 F. 666; Barth v. K.C. Co., 142 Mo. 535, 44 S.W. 778. (3) Appellants' Instruction P-4 and respondent's Instruction G are not really inconsistent as a reading of the former clearly shows that the appellants therein limited their recovery to pecuniary damages even though suggesting the consideration of possibly aggravating or mitigating circumstances. The appellants' instruction did not tell the jury to add to the pecuniary damages if they found the circumstances aggravating, nor to deduct therefrom if they found mitigating circumstances present. (4) Where both instructions of the appellants deal with measure of damages only in a general way, as do appellants' Instructions No. 3-P and 4-P, the respondent was entitled to have the jury instructed as to the specific elements for which the appellants were entitled to recover, as set out in respondent's Instruction G. Voelker v. Hill-O'Meara Co., 153 Mo.App. 1, 131 S.W. 907; Oliver v. Morgan, 73 S.W.2d 993; Waite v. Rock Island Co., 186 Mo.App. 160, 153 S.W. 66. (5) Failure of respondent's Instruction G to mention alleged aggravating circumstances was not error. Where instructions of one party are silent as to mitigating or aggravating circumstances, if other party wants such circumstances considered by the jury, he should ask for such an instruction (which was done in the instant case) and failure to mention such circumstances in the respondent's instruction does not constitute error. Tetherow v. St. Joseph R. Co., 98 Mo. 74, 11 S.W. 310; Organ v. Mo. Pac. R. Co., 142 Mo.App. 248, 126 S.W. 191. (6) As respondent's Instruction G merely supplements appellants' Instructions P-3 and P-4, its submission to jury was appropriate. Hunt v. Iron Mt. R. Co., 126 Mo.App. 261, 103 S.W. 133; Biggie v. Burlington R. Co., 159 Mo.App. 350, 140 S.W. 602; Buchholz v. Standard Oil Co., 211 Mo.App. 397, 244 S.W. 973. (7) There were no aggravating circumstances present as there were no showing of wilful misconduct, wantonness, recklessness or want of care indicative of indifference to consequences. Williams v. Excavating Co., 93 S.W.2d 123, 230 Mo.App. 973. (8) Mere absence of due care is not sufficient. Mauzy v. Carson Co., 189 S.W.2d 829; Williams v. Excavating Co., supra. (9) The circumstances in the instant case do not constitute sufficient aggravation to authorize submission of the question to the jury. Parson v. Mo. Pac., 94 Mo. 286, 6 S.W. 464; Mauzy v. Carson, 189 S.W.2d 829; Oliver v. Morgan, 73 S.W.2d 993. (10) The court did not err in giving Instruction H at the request of the respondent, as it was as proper for the court to tell the jury they might consider the possible prompt induction of the deceased into the army as affecting the pecuniary loss to be suffered by the appellants as the result of his death, as it was to point out the funeral expenses, etc., for which the appellants might recover. Smith v. Ozark Co., 238 S.W. 573, 215 Mo.App. 29; Knight v. Sadtler, 91 Mo.App. 574; Vescio v. Pac. Elec. Co., 9 A.2d 546, 336 Pa. 502; Peterson v. Pete-Erickson Co., 244 N.W. 68, 186 Minn. 583; Sullivan v. Minneapolis Co., 167 N.W. 311, 167 Wis. 518; Jasper County Lbr. Co. v. McMullan, 188 S.W.2d 731; Re Black Gull, 90 F.2d 619; certiorari denied 58 S.Ct. 50, 302 U.S. 728, 82 L.Ed. 562; Florida Power Co. v. Bridgman, 182 So. 911, 133 Fla. 195; 25 C.J.S. p. 1251, sec. 102, note 32, p. 1290, sec. 122, note 13. (11) The admission of evidence relative to the registration and probable induction into the armed forces of the deceased under the provision of the Federal Selective Service Act and Reglations was not error. See case cited under Point (10). (12) In considering the excessiveness or inadequacy of the verdict, when approved by the trial court, the evidence favorable to the respondent together with all reasonable inferences to be drawn therefrom will be accepted as true by the appellate court. Dodd v. M.-K.-T.R. Co., 193 S.W.2d 905; Williamson v. Wabash R. Co., 196 S.W.2d 129; Manzella v. St. L. Service Co., 202 S.W.2d 567; Harding v. K.C. Service Co., 188 S.W.2d 60; Coates v. News Corp., 197 S.W.2d 958. (13) Verdict will not be set aside except there is evidence of prejudice, passion or corruption and unless grossly and palpably inadequate. Leahy v. Davis, 121 Mo. 227, 25 S.W. 941; Parsons v. Ry., 94 Mo. 286, 6 S.W. 464; Boggess v. Ry., 23 S.W. 159; Polk v. Krenning, 2 S.W.2d 107; 25 C.J.S. p. 1283, sec. 117; p. 1266, sec. 115, note 84. (14) Mere alleged inadequacy of verdict is not alone sufficient to show passion, prejudice or misconduct of the jury. Broughton v. Kresge, 26 S.W.2d 838; Dowd v. Air Brake Co., 132 Mo. 579, 34 S.W. 493; Pritchard v. Hewitt, 91...