Steuernagel v. St. Louis Public Service Co.

• Decision Date: 12 March 1951
• Docket Number: No. 41628,41628
• Citation: 361 Mo. 1066,238 S.W.2d 426
• Parties: STEUERNAGEL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

Page 426

238 S.W.2d 426

361 Mo. 1066

STEUERNAGEL v. ST. LOUIS PUBLIC SERVICE CO.

No. 41628.

Supreme Court of Missouri, en Banc.

March 12, 1951.

Rehearing Denied April 9, 1951.

Louis E. Miller, Miller & Landau and B. Sherman Landau, all of St. Louis, for appellant.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for respondent.

Daniel P. Reardon, John H. Martin and Moser, Marsalek, Carpenter, Cleary & Carter, all of St. Louis, for Robinson Const. Co.

Frey & Korngold and Karol A. Korngold, all of St. Louis, amici curiae.

HYDE, Chief Justice.

Action for damages for personal injuries. Plaintiff had judgment for $10,000.00, on March 17, 1949. Defendant filed motion for new trial on March 23, 1949. On June 20, 1949, the Court ordered a remittitur of $5,000.00 within 10 days, as a condition for overruling the motion. Plaintiff did not remit; the 90 day period ended June 21, 1949 and nine days later, on July 1, 1949, the Court made an order sustaining defendant's motion for new trial. Plaintiff has appealed from this order. Plaintiff now contends that the judgment in her favor for $10,000.00 became final 90 days after March 23, 1949, under Sec. 510.360, R.S.1949 and our Rule 3.24, and that the order granting the new trial is void. This is the sole question raised and it has not heretofore been decided.

Defendant did not perfect an appeal so no question on the merits is raised. The facts of the case appear from opinions on the former appeals herein. Steuernagel v. St. Louis Public Service Co., Mo.App., 202 S.W.2d 516 and Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S.W.2d 696. The order of June 20, 1949, was as follows: 'The court having seen and examined, and duly considered the defendant's motion for a new trial, heretofore filed and submitted herein, and being sufficiently advised thereof, doth order that said motion will be overruled if plaintiff will within 10 days from this date remit the sum of $5,000.00 from the verdict and judgment heretofore entered in her favor, otherwise said motion will be sustained upon the ground that the verdict is excessive.' The order of July 1, 1949 was as follows: 'It appearing to the satisfaction of the Court that the plaintiff has failed to comply with the Order of Court, heretofore made and entered herein on the 20th day of June, 1949, directing plaintiff to remit the sum of $5,000.00 from the judgment heretofore rendered in her favor, it is now ordered by the Court upon motion of defendant that said motion of defendant for a new trial, be and the same is hereby sustained upon the ground that the verdict is excessive; thereupon, it is ordered by the Court that the verdict and judgment heretofore rendered herein on the 17th day of March, 1949, in favor of the plaintiff and against the defendant for the sum of $10,000.00 be set aside, vacated and for naught held, and that this cause be reinstated upon the docket of this Court for further proceedings.'

Section 510.360, R.S.1949, provides: 'If the motion for new trial is not passed on within ninety days after the motion is filed, it is deemed denied for all purposes.' It is also provided by Sec. 506.060, R.S.1949, 2(2), that the Court 'may not enlarge the period for filing a motion for or granting a new trial'. Plaintiff's argument is: 'On Monday, June 20, 1949, the eighty-ninth day after defendant's motion was filed, the court issued a declaration that it would overrule defendant's motion if plaintiff would enter a remittitur within ten days, but upon plaintiff's failure to make such remittitur the motion would be sustained. That statement by the court was no more than an announcement of the court's view at that time--it was not conclusive on the court or the parties. The court could during the intervening period modify its views or change them completely. It was an attempt by the trial court to enlarge the period for granting a new trial, an act specifically forbidden by statute.'

However, we do not think this is the correct construction of the Court's order; but, on the contrary, we think the Court actually did pass on the motion for new trial within 90 days within the meaning of Sec. 510.360. We agree that the words 'passed on' mean 'determined' and that to pass on the motion the Court had to decide what was to be done with the motion and to definitely so state in its order. Nevertheless, our remittitur practice has always permitted the Court to make such an order in the alternative when the sole ground for granting a new trial is an excessive verdict. Therefore, we do not think that Sec. 510.360 cuts down the time, in which the motion must be passed on, to less than 90 days when the Court decides to order a remittitur. This remittitur practice is not and never was based on any statute but comes from the common law and the inherent power of the Court to set aside a verdict, so excessive as to shock the conscience of the Court, and thus to prevent a miscarriage of justice. See Johnson v. Robertson, 1 Mo. 615; Cook v. Globe Printing Co., 227 Mo. 471, loc. cit. 542, 127 S.W. 332; 39 Am.Jur. 147-157; Secs. 140-149, p. 204, Sec. 210; 66 C.J.S., New Trial, Sec. 209, p. 517; 53 A.L.R. 779, annotation to Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374, 376, 53 A.L.R. 771. In the Campbell case, the Supreme Court of Wisconsin said: 'The power of the court to set aside verdicts and to grant new trials on the ground that the jury had erred in assessing damages was firmly established before the formation of the United States. * * * 'Early in the history of English procedure this right was exercised through the attaint of the jury whose verdict was questioned. This practice prevailed down to the time when the memorable decision of Chief Justice Vaughan in Bushell's Case, Vaughan, 135, 6 How.St.Tr. 999, put an end to the barbarous and excessive punishment that had been imposed upon jurors whose verdicts were attainted. In place of the attaint as a means of correcting erroneous verdicts came the practice of setting aside verdicts because of the misconduct of jurors, which was gradually extended to include the power to set aside verdicts when the only misconduct consisted of rendering verdicts contrary to the law or to the evidence in the case. This power was fully established as early as the eighteenth century.'

In Schilling v. Speck, 26 Mo. 489, this Court held that (after remittitur in the trial court to prevent sustaining a motion for new trial) 'it was the duty of the plaintiff to have seen that the judgment was properly entered, and for a sum not greater than he was entitled to.' Nevertheless, it was held, since this was not done, that 'judgment will be reversed and judgment will be rendered in this Court for the amount the plaintiff was entitled to after the remittitur.' In State ex rel. Missouri Pacific Ry. Co. v. Broaddus, 212 Mo. 685, 111 S.W. 508, 509, this Court further considered the effect of making a remittitur and held 'that the entry of the remittitur, without more, did not set aside or nullify the judgment of the circuit court, nor amount to the rendition and entry of a new judgment for the sum of the verdict, less the amount of the remittitur.' The remittitur was considered to be, in effect, 'a record credit thereon for the amount of the remittitur'. We followed this ruling in Gray v. Doe Run Lead Co., 331 Mo. 481, 53 S.W.2d 877; See also Barrett v. Stoddard County, Mo.App., 183 S.W. 644, loc. cit. 648. Thus the entry after remittitur is a correction of the judgment originally entered and not actually a new judgment. The appealable judgment is the original judgment (as corrected of course) but still the appeal is from the original judgment, that is from what remains of it. We cannot believe that the new code intended to make any change in our long established remittitur practice. The serious question under our new code is: when does the judgment become final and appealable?

We think the trial court's order of June 20, 1949, must be construed as having the effect of then granting defendant a new trial on the ground of excessive verdict with the option to plaintiff to retain part of the judgment by remittitur of the excessive part. In view of our long established remittitur practice, we do not think this order can be held to be 'no more than an announcement of the court's view at that time' which left the Court free to 'modify its views or change them completely.' On the contrary, we view it as a complete and final order, and certainly after the 90 day period had elapsed it was irrevocable. See Krummel v. Hintz, Mo.App., 222 S.W.2d 574. True, it was in the alternative but if there is to be any remittitur practice at all, the order must always be in the alternative. Therefore, we cannot hold that the motion was not passed on and determined within the 90 day period, merely because the Court granted plaintiff time beyond that period to decide which alternative she would take. The order did definitely state the result that would accrue from the acceptance of either alternative, and thus to the extent it was unconditional. All that remained to be done was an entry to show which result had happened after plaintiff made the choide. We do not think this is enlarging the period for granting a new trial and we so hold. Plaintiff suggests if the Court could give 10 days it could give a year. However, an unreasonable time would be an abuse of discretion which an appellate court could declare void.

This brings us to the further question of when the judgment becomes final for purposes of appeal. Of course, it would not make sense to require an appeal before it is known which alternative the plaintiff accepts, and we do not think the code requires any such construction. It will be noted that, while Sec. 510.360 provides an automatic overruling of the motion if it 'is not passed on within ninety days', Sec. 510.340, R.S.1949, provides: 'If a timely motion is filed the judgment is not...