Tilley v. Hendricks' Estate

• Decision Date: 13 November 1934
• Citation: 76 S.W.2d 754,229 Mo.App. 255
• Parties: O. C. TILLEY, APPELLANT, v. JOHN W. MOORE, EXECUTOR, ESTATE OF J. J. HENDRICKS, DECEASED, RESPONDENT
• Court: Kansas Court of Appeals

76 S.W.2d 754

229 Mo.App. 255

O. C. TILLEY, APPELLANT, v. JOHN W. MOORE, EXECUTOR, ESTATE OF J. J. HENDRICKS, DECEASED, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 13, 1934

Appeal from Circuit Court of Macon County.--Hon. Vernon L. Drain Judge.

Judgment affirmed.

H. K West and Wilson Barrow for appellant.

Thomas P. Burns and Waldo Edwards for respondent.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

The plaintiff, about December 21, 1933, filed his claim against the estate of J. J. Hendricks, deceased, in the Probate Court of Linn County, where said estate was in the course of administration, in the sum of $ 810, alleged to be the reasonable value of alleged services of personal and other character rendered to the deceased Hendricks in his lifetime at his request, covering a period of four and one-half years next preceding his death.

From the judgment rendered upon a trial in said court, the executor of the estate appealed to the circuit court where, from said court, the cause was transferred by change of venue to the Circuit Court of Macon County. Upon trial had in the latter court before a jury on May 2, 1934, at the April term, 1934, of the court, a verdict for $ 1200 was returned for the plaintiff, upon which judgment was rendered for him in such sum. Thereafter, on May 3, 1934, the plaintiff offered in writing filed in the cause to remit, and did remit, the sum of $ 390 from the verdict, seeking to reduce it to the amount of $ 810 in favor of plaintiff, and moved for judgment against defendant in such sum. Thereafter, on said date, defendant filed motions to set aside the verdict and for a new trial and in arrest of judgment.

One of the numerous grounds alleged in the motion for the new trial for the setting aside of the verdict of the jury and granting a new trial was that it was excessive because it was in excess of the amount claimed in the petition and was so excessive as to shock the conscience of the court and so excessive as to show that the jury was influenced by passion, prejudice, excitement, and misunderstanding. Another ground was that the verdict was for $ 1200 when only $ 810 was claimed by the plaintiff in his pleadings.

On May 23, 1934, the motion for a new trial was sustained; and the verdict was set aside by the court for the reason assigned by the court that it was void and excessive. From the action of the court in sustaining the motion to set aside the verdict and to grant a new trial and the order made thereon, the plaintiff prosecutes this appeal, assigning alone as error that the trial court erred in sustaining defendant's motion for a new trial.

OPINION.

1. It is earnestly insisted by plaintiff that his remittitur should have been accepted by the trial court and the verdict and judgment reduced accordingly to the amount mentioned in the complaint for which recovery was sought, and he cites a great number of cases wherein remittiturs have been allowed or approved to prevent the necessity of a new trial.

2. There is no doubt concerning the right and power of the circuit as well as the appellate courts to accept and direct remittiturs in proper instances where the verdict of the jury is found to be excessive, rather than to order a new trial. [Creve Coeur Lake Ice Co. v. Tamm, 90 Mo.App. 189; Smoot v. Kansas City, 194 Mo. 513, 92 S.W. 363.]

It does not follow, however, that such right and power exists in all cases. There seems to be no doubt concerning such right, when justified by the circumstances of the particular case, that an entry of remittitur be permitted. The doubt seems to lie as to when the circumstances of a particular case justifies an exercise of such power.

3. In cases involving actions for personal injuries and other cases in tort, including those in contract for unliquidated or uncertain damages or amount, where unjust sums are awarded by the jury and there is no positive criterion for determining what the damages should be, there appears a wide divergence of opinion as to the existence of such power. In numerous such cases, however, remittiturs have been allowed upon the theory that the trial judge, being largely concerned with the facts, is required to review the finding thereon and set it aside if, in his opinion, it is unsupported by the weight of the evidence.

4. There are, however, exceptional cases in which an excessive verdict cannot be cured by remittitur but in which a new trial is necessary to cure the error. Thus, if the jury was erroneously charged concerning the measure of damages and, in obedience to the court's instruction, included in its assessment of damages improper allowances and it was impossible to ascertain precisely how much the verdict was increased thereby or upon what elements the verdict was based, a remittitur is insufficient to cure the error, which can be done only by granting a new trial. Or, when the amount assessed is so glaringly unauthorized by the evidence as to compel a conviction that it was the result of bias, prejudice, and passion on the part of the jury against the losing party, the same is true. [Creve Coeur Lake Ice Co. v. Tamm, supra; Smoot v. Kansas City, supra.]

5. In the case of Smoot v. Kansas City, supra, the Supreme Court deduced from all the authorities concerning the right and power of the trial or the appellate courts to permit remittiturs a fundamental rule that " --where the court can reasonably estimate the excess in the verdict or judgment and that it is apparent that no injury can be done the defendant by entering such remittitur then the remittitur will be permitted."

6. There is, thus, a measure of discretion vested in the trial court in a determination of whether a remittitur should be allowed or a new trial granted, the exercise thereof, however, being subject to review. [Harper v. St. Louis & S. F. Ry. Co., 186 Mo.App. 296, 172 S.W. 55.]

7. Under the rule announced, it will be noticed that the court must be able to say both that the amount to be remitted accurately represents the excess in the verdict and that the defendant is not injured by its allowance and the entry of judgment for the reduced sum.

8. In this cause, the amount mentioned in the claim or the petition as that for which recovery is sought is $ 810. The verdict returned by the jury is for $ 1200, which is $ 390 in excess of the sum claimed. The trial court failed to direct the remittitur of the $ 390 offered by the plaintiff and failed to reduce the verdict or judgment by such sum but, instead, granted defendant's motion for a new trial for the reason stated of record, that the verdict was void and excessive. Among the grounds advanced by the defendant in the motion for a new trial was the ground that the verdict was in excess of the amount set forth in the complaint and was so excessive as to shock the conscience of the court and was so unreasonable as to show that it was the result of bias, prejudice, and misunderstanding upon the part of the jury.

9. That the verdict was excessive, as a matter of law, in the sum of $ 390, in that it exceeded the amount sued for in plaintiff's petition in such sum, cannot be denied; and, for such reason, it was void and required to be set aside unless it could be amended by remittitur. [Creve Coeur Lake Ice Co. v. Tamm, supra.] Whether it was otherwise excessive, beyond such sum, was a matter for the trial court upon a consideration of the evidence. It would appear, from the action of the court in refusing to permit the remittitur in said sum, that it was not of the opinion that said sum represented the amount of the excess in said verdict and that said verdict, in said sum, was not supported by substantial evidence in the record and that the verdict and judgment reduced by the amount offered to be remitted would not be supported by substantial evidence in the record. Otherwise, it would have permitted the remittitur. Whether it was of such opinion or not, an impartial review of the evidence in the record demonstrates the fact that there was neither substantial evidence upon which to base the verdict for $ 1200, as returned, nor for the sum of $ 810, mentioned in the petition.

Whether it was excessive in the first of such respects alone--that is, by reason of having exceeded the sum sued for by the sum of $ 390--or whether for the reason that there was no substantial evidence in the record to support it in said sum of $ 1200 or in the sum of $ 810 or in both, it was in any event void and subject to be set aside unless it could be remedied by remittitur. Whether it could be so remedied by remittitur depended upon whether the excess could be accurately calculated and determined and whether there existed any positive criterion by which the amount for which the verdict and judgment...