Underwood v. Brockmeyer, 46577
| Decision Date | 08 December 1958 |
| Docket Number | No. 46577,No. 1,46577,1 |
| Citation | 318 S.W.2d 192 |
| Parties | Lenzie UNDERWOOD, Respondent, v. Leo BROCKMEYER, Appellant |
| Court | Missouri Supreme Court |
George F. Heege, Clayton, for appellant.
Sidney Fortus, Clayton, for respondent.
COIL, Commissioner.
Respondent, plaintiff below, claimed $20,000 as damages for personal injuries sustained as a result of a collision between his and appellant's automobiles. (We shall hereinafter refer to the parties as they were designated in the trial court.) Plaintiff had verdict and judgment for $1,250. The trial court sustained plaintiff's motion for new trial on the specified ground that the verdict of the jury was 'inadequate and against the weight of the evidence,' and ordered a new trial on the issue of damages only. Defendant has appealed from that order, and here contends that the trial court abused its discretion in granting a new trial on the ground specified because there was insufficient substantial evidence to support a larger verdict and that the trial court erred in granting a new trial on the issue of damages only because the court's finding that the verdict was inadequate had to be based upon the jury's misconduct and because the issues of liability and damages were so interwoven as to make a trial of one without the other an injustice to defendant.
Defendant concedes that plaintiff made a submissible case. Consequently, it suffices to state as to the circumstances of the accident that plaintiff, driving west on Page Boulevard a short distance west of Ferguson Avenue in St. Louis, brought his automobile to a complete stop and thereafter his automobile's rear was struck by the front of defendant's westbound automobile.
Sapp v. Key, Mo., 287 S.W.2d 775, 779[2-5]. In view of the foregoing well-established principles, we find no merit in defendant's incidental contention that a trial court's order granting a new trial on the ground of inadequacy of verdict should be reviewed de novo on appeal under the provisions of Section 510.310 subd. 4, RSMo 1949, p. 822, 31 V.A.M.S. (pertaining to review of nonjury law trials).
In determining whether there was substantial probative evidence to justify the trial court, upon weighing all the evidence, to reasonably conclude that the $1,250 awarded as damages was grossly inadequate, we consider the relevant evidence from a standpoint favorable to the trial court's ruling, which, in this instance, means that we consider the evidence from a standpoint favorable to plaintiff. Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 431.
Plaintiff, 39 at trial time, had been employed for ten years at McDonnell Aircraft Corporation. There was evidence that as a result of the accident plaintiff had lost $681.56 in wages and had expended $354.94 for medicines, orthopedic appliances, and medical services. It is thus apparent that a trial court reasonably could have believed that plaintiff's special damages amounted to $1,036.50 and that the jury's verdict exceeded that amount by only $213.50.
We see nothing to be gained by a detailed resume of plaintiff's medical evidence. A brief summary is sufficient to demonstrate that the trial court did not abuse its discretion in the instant case. Plaintiff sustained a whiplash injury to his neck involving the disk between the sixth and seventh cervical vertebrae with resultant neck pain and difficulty of movement and a radiculitis (an irritation) of the second and third cervical nerve roots. He also sustained an injury to the nerve roots at the third lumbar intervertebral joint body level, probably caused by a ruptured intervertebral disk between the third and fourth lumbar vertebrae.
Plaintiff had suffered with diabetes since 1950, but that disease had been fully controlled by the use of insulin, so that prior to the accident he was in good health. He returned to work after approximately five weeks at an increased wage rate in a capacity which did not require the physical effort theretofore exerted.
Plaintiff was examined and treated by three doctors--an internist, an orthopedist, and a neuropsychiatrist, who, in the main, agreed on the injuries suffered, plaintiff's condition...
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