Steckdaub v. Sparks

• Decision Date: 10 July 1950
• Docket Number: No. 1,No. 41725,41725,1
• Citation: 231 S.W.2d 160
• Parties: STECKDAUB v. SPARKS
• Court: Missouri Supreme Court

Page 160

231 S.W.2d 160

STECKDAUB v. SPARKS.

No. 41725.

Supreme Court of Missouri, Division No. 1.

July 10, 1950.

Alexander, Ausmus & Harris and Warren D. Welliver, all of Columbia, for appellant.

Watson, Ess, Whittaker, Marshall & Enggas, Kansas City, Clark, Boggs, Peterson & Becker, Columbia, for respondent.

LOZIER, Commissioner.

Frank Steckdaub (hereinafter called plaintiff) sued Walter Sparks (hereinafter called defendant) for $10,000 for personal injuries. The jury's verdict was for defendant. From the judgment entered plaintiff appealed here.

Defendant was a practicing Doctor of Osteopathy in Columbia, Missouri. The petition alleged that, on November 4, 1947, plaintiff was in defendant's office to have a professional treatment; that in the course of such treatment 'defendant placed plaintiff on a table and said table was caused to fall, as a result of the carelessness and negligence of the defendant.' It was further alleged that the table from which plaintiff fell was 'in the exclusive possession and under the exclusive control of the defendant,' and that plaintiff sustained personal injuries.

Plaintiff's only contention in this court is that his motion for new trial '* * * should have been sustained because there is no substantial evidence to support the verdict of the jury.' That contention seems based upon plaintiff's argument that of necessity the jury must have found either that (1) defendant was not negligent, or (2) that plaintiff was not injured; but that, as to (1) or (2) above, there was no evidence of either, and the jury were thus precluded from finding a verdict for defendant, and were thus compelled to find for plaintiff, if only for nominal damages. Plaintiff concedes that if there is any evidence before us that defendant was not negligent or that plaintiff was not injured, an appellate court cannot weigh the evidence, and that we must, therefore, affirm the judgment. Plaintiff cites 15 Am.Juris., Damages, pp. 392, 395; Scroggins v. Metropolitan St. Ry. Co., 138 Mo.App. 215, 120 S.W. 731, 733; Mason v. Down Town Garage Co., 227 Mo.App. 397, 53 S.W.2d 409, 413; and Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071, 1072.

In each of the three just above cited cases the verdict of the jury was for the plaintiff. Under the contention made here, that fact alone sufficiently distinguishes them. In those cited cases where plaintiffs recovered the court merely reiterated the well-known rule that verdicts for plaintiffs which were unsupported by substantial evidence would not be permitted to stand. The cited American Jurisprudence text merely states the rule as to the right to recover nominal damages.

But here a wholly different situation obtains for the jury's verdict was for the defendant. And under these circumstances it is not material whether there was any evidence at all favorable to defendant. Here the plaintiff did not persuade the jury to return a verdict for him in any amount. Even though plaintiff introduces evidence which would warrant a verdict in his favor, he must further persuade the jury to return a verdict for him. An appellate court may not reverse, or reverse and remand, under these circumstances for the jury must first believe plaintiff's testimony and return a verdict in plaintiff's favor.

In Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, of a similar contention under similar circumstances, we said: 'The sufficiency of the evidence to support the verdict in defendant's favor is not an open question in this...