Spitzengel v. Greenlease Motor Car Co.

• Decision Date: 08 January 1940
• Citation: 136 S.W.2d 100,234 Mo.App. 962
• Parties: RUDOLPH SPITZENGEL, APPELLANT, v. GREENLEASE MOTOR CAR COMPANY, A CORPORATION, RESPONDENT
• Court: Kansas Court of Appeals

136 S.W.2d 100

234 Mo.App. 962

RUDOLPH SPITZENGEL, APPELLANT, v. GREENLEASE MOTOR CAR COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, Kansas City

January 8, 1940

Appeal from the Circuit Court of Jackson County.--Hon. Albert A Ridge, Judge.

REVERSED AND REMANDED.

Judgment overruled and cause remanded.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for appellant.

(1) The trial court granted defendant a new trial solely on the ground that error had been committed in giving plaintiff's Instruction No. 2 submitting the issue of punitive damages. The review of this question involves a pure question of law as to which the trial court had no judicial discretion. Smith v. K. C. Pub. Serv. Co., 328 Mo 979, 43 S.W.2d 588, l. c. 554; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518, l. c. 522, 523; Fleming v Joseph F. McMahan Contracting Corp., 45 S.W.2d 952, l. c. 955; Noren v. American School of Osteopathy, 223 Mo.App. 291, 2 S.W.2d 215, l. c. 222; Hobart-Lee Tie Co. v. Grodsky, 329 Mo. 706, 46 S.W.2d 859, l. c. 860, 861; Porter v. C., B. & Q. R. Co., 325 Mo. 381, 28 S.W.2d 1035, l. c. 1038, 1039. (2) The court erred in taking from plaintiff his verdict for punitive damages when such damages were sustained by the evidence and that issue was submitted on proper instructions. Steinburg v. Levy, 236 S.W. 909, l. c. 910; Reamer v. Morrison Express Co., 93 Mo.App. 501, 67 S.W. 718, l. c. 721; Blackmer v. Cleveland C. C. & St. L. Ry. Co., 101 Mo.App. 557, 73 S.W. 913, l. c. 915; Carson v. Smith, 133 Mo. 606, 34 S.W. 855, l. c. 858; Berns v. P. A. Stack Piano Co., 296 S.W. 239; De Salme v. Union Elec. Lt. & Pwr. Co., 102 S.W.2d 779, l. c. 783; Reel v. Consolidated Inv. Co., 236 S.W. 43, l. c. 46; Riepe v. Green, 65 S.W.2d 667, l. c. 669; Hyre v. Becker, 18 S.W.2d 137, l. c. 139; State ex rel. United Factories, Inc. v. Hostetter et al., 126 S.W.2d 1173, l. c. 1176; Jeck v. O'Meara et al., 122 S.W.2d 897, l. c. 905; Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372, l. c. 377. (a) There was evidence justifying and requiring the submission of the issue of punitive damages. Jones v. West Side Buick Auto Co., 93 S.W.2d 1083, l. c. 1088; Finke v. Boyer, 56 S.W.2d 372, l. c. 377; Giffin v. Petree, 226 Mo.App. 718, 724, 46 S.W.2d 609, 612, l. c. 618; Gilbert & Miller v. Peck, 43 Mo.App. 577, l. c. 583; Marshall & Michel Grain Co. v. Kansas City, Ft. S. & M. R. Co., 176 Mo. 480, 75 S.W. 638, l. c. 641. (b) Instruction No. 2 submitting punitive damages was proper and legal in form. Jennings v. Appleman, 159 Mo.App. 12, 139 S.W. 817, l. c. 818; Berns v. P. A. Starck Piano Co., 296 S.W. 239, l. c. 242; Gray v. Doe Run Lead Co., 331 Mo. 481, 53 S.W.2d 877, l. c. 882; City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471, l. c. 480. (2) Since the court specified the ground on which the new trial was granted, the burden is on respondent to show such action of the court should be sustained on another ground. Smith v. K. C. Pub. Service Co., 328 Mo. 979, 43 S.W.2d 548. (3) There are no grounds set forth in the motion for new trial which would justify sustaining it. (a) The question of whether the assessment of punitive damages is against the weight of the evidence is not subject to review by this court. Smith v. K. C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548, l. c. 554; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914, l. c. 915; Block v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, l. c. 933; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079, l. c. 1081. (b) The court properly excluded the offered evidence of Christine Peterson as to her conversation with appellant which had no bearing on the issues. White v. Scarritt, 111 S.W.2d 18, l. c. 22; 1 C. J. S., page 1065, sec. 24; State v. Decker, 326 Mo. 946, 33 S.W.2d 958, l. c. 961; State v. Perrin, 316 Mo. 585, 292 S.W. 54, l. c. 55; Radford v. Horton, 207 Mo.App. 601, 227 S.W. 1073, 1077; Barnett v. Western Union Tele. Co., 287 S.W. 1064, 1068; Steffen v. Southwestern Bell Tele. Co., 331 Mo. 574, 56 S.W.2d 47, 48; Clark v. Reising, 341 Mo. 282, 107 S.W.2d 33. (c) The court properly modified defendant's offered Instruction "D" as to the part submitting provocation. (d) The verdict was not excessive either as to compensation or punitive damages. Cordray v. City of Brookfield, 88 S.W.2d 161, l. c. 166; Whittington v. Westport Hotel Operating Co., 326 Mo. 117, 33 S.W.2d 963, l. c. 969; La Chance v. National Pigments & Chemical Co., 104 S.W.2d 693, l. c. 701; Seested v. Post Printing & Publishing Co., 326 Mo. 559, 31 S.W.2d 1045, l. c. 1054; Jones v. West Side Buick Auto Co. (Mo. App.), 933 S.W.2d 1083; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, l. c. 356.

Morrison, Nugent, Berger, Byers & Johns and R. L. Hecker for respondent.

(1) The trial court correctly ruled that it had erred in giving Instruction 2 on punitive damages. (a) There was no evidence to justify the submission of punitive damages. Pinkley v. Rombauer, 231 Mo.App. 1233, 87 S.W.2d 1045, 1049; Jeck v. O'Meara, 122 S.W.2d 897; Griffin v. Petree, 226 Mo.App. 718, 724, 46 S.W.2d 609, 612; Engel v. Jones, 51 Mo. 316; Franz v. Hilterbrand, 45 Mo. 121, 123; Summers v. Keller, 152 Mo.App. 626, 634, 133 S.W. 1180, 1182; Hall v. S. L. & S. F. Ry. Co., 224 Mo.App. 431, 439, 28 S.W.2d 687, 691. (b) Appellant has failed to show in his brief that Instruction 2 was a proper instruction and the burden of so showing was on him. Smith v. K. C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Stelmach v. Saul, 51 S.W.2d 886, 888. (2) If the trial court gave a wrong ground for sustaining the motion for a new trial, its action must be sustained if there was any proper ground assigned. Smith v. K. C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; 2 Houts Missouri Pleading and Practice, chap. 16, sec. 540, p. 584; State ex rel. v. Thomas, 245 Mo. 65, 73, 149 S.W. 318, 320. (3) There were numerous other grounds other than (5) set forth in the motion for new trial which would justify sustaining it. (a) The verdict assessing punitive damages is against the evidence and the weight of the evidence. State ex rel. v. Ellison, 268 Mo. 225, 231, 186 S.W. 1075, 1076; Spiro v. St. L. Transit Co., 102 Mo.App. 250, 76 S.W. 684; Adams v. Lilbourn Grain Co., 226 Mo.App. 1030, 48 S.W.2d 147; Traw v. Heydt, 216 S.W. 1009; Whitsett v. Ransom, 79 Mo. 258. (b) The court erred in excluding offered evidence proving that plaintiff induced the repossession and entrapped defendant. Kegan v. Park Bk. of St. Joseph, 320 Mo. 623, 650, 8 S.W.2d 858, 871; Schwarzschild & Sulzberger Co. v. S. F. & W. Ry. Co., 76 Mo.App. 623, 629; 1 C. J. S., p. 1064, Acts., sec. 23; Beck v. Dowell, 40 Mo.App. 71, 75; 8 R. C. L., p. 592, Damages, sec. 135. (c) The court erred in not giving that part of defendants offered Instruction (d) referring to the provocation. 1 C. J. S., p. 1005; Actions, sec. 15. (d) The verdict was excessive both as to compensatory and punitive damages, and so much so as to show bias and prejudice on the part of the jury. State ex rel. v. Ellison, 268 Mo. 225, 234, 186 S.W. 1075, 1077; State ex rel. v. Shain, 341 Mo. 733, 742, 108 S.W.2d 351, 356; Berns v. Starck Piano Co., 296 S.W. 239; Sec. 1062, R. S. Mo., 1929.

OPINION

SHAIN, P. J.

This is an appeal from the action of the trial court in granting a new trial. The facts, briefly stated, are that plaintiff filed suit against defendant for conversion of his automobile. Said automobile had been purchased by plaintiff through defendant's salesman, Murray D. Parks, on part cash and part credit basis. To secure defendant for a deferred payment of $ 58.96, the plaintiff executed a monthly payable installment note (payments of $ 7.37, for eight months) which note was secured by a chattel mortgage on the automobile.

It is shown that plaintiff made prompt payment of all installments and paid the last installment before same was due and his note was duly cancelled and returned to him together with the said chattel mortgage.

The evidence discloses that after payment, cancellation and surrender of the note and chattel, defendant made written demand on plaintiff to pay a claimed balance due on said note.

The above stated facts appear undisputed. As to occurrences thereafter the evidence is conflicting.

As verdict and judgment was for plaintiff, further statements of facts will be confined to evidence most favorable to plaintiff.

It appears that plaintiff, who is a widower, resides at 1409 Bellefontaine, Kansas City, Missouri, and is employed in the shipping department of Loose Wiles Biscuit Company.

Plaintiff testified in effect that during business hours he had not time to attend to other matters, but that sometime after receiving notice from defendant demanding further payment, he called defendant's office over the telephone during the noon hour and talked to someone unknown to him who answered the telephone and stated to said person that he had paid for his car and received the response that they would look into it.

The record discloses that Mr. Parks made several trips to plaintiff's home for the purpose of demanding payment of the claimed balance due on the note but did not find plaintiff at home. However, on one occasion, plaintiff's daughter was at plaintiff's home when Mr. Parks came and told Mr. Parks that the car had been paid for.

It appears that on the evening of August 4th, plaintiff had driven his car from his work to his home, parked same near his house in his yard and had left his home for some purpose. It appears that Mr. Parks came to his home on said August 4th, after plaintiff had parked his car and left. On this occasion a Mr. Ballou, son-in-law of plaintiff, was present and he testified to the happenings as follows:

"Q. Now, did you thereafter see Mr. Parks at any time? A...