Webb v. Rench

• Decision Date: 10 January 1972
• Docket Number: No. 1,No. 55661,55661,1
• Citation: 476 S.W.2d 570
• Parties: Clay Richard WEBB and Laveta J. Webb, Plaintiffs-Respondents, v. Merle T. RENCH, d/b/a R & S Grain Co., and Donald S. Miller, Defendants-Appellants
• Court: Missouri Supreme Court

Page 570

476 S.W.2d 570

Clay Richard WEBB and Laveta J. Webb, Plaintiffs-Respondents, v. Merle T. RENCH, d/b/a R & S Grain Co., and Donald S. Miller Defendants-Appellants.

No. 55661.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1972.

Rehearing Denied Feb. 22, 1972.

James W. Benjamin, Cecil L. Caulkins, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for plaintiffs-respondents.

John C. Russell, Raytown, for defendants-appellants.

WELBORN, Commissioner.

Action for personal injuries arising out of automobile collision. Clay Richard Webb was the driver of an automobile that collided with a truck driven by Donald S. Miller and owned by Miller's employer, Merle T. Rench. Webb sued Miller and Rench for $150,000 for his injuries. Webb's wife, Laveta, sued for $50,000 for loss of service, social companionship and consortium by reason of her husband's injuries. Trial to a jury resulted in a verdict for Clay Webb of $50,000 and for his wife of $5,000 against both defendants. On defendants' motion for new trial, a remittitur of $10,000 and $2,500 was ordered on the plaintiffs' verdict and judgment entered for Webb for $40,000 and for his wife for $2,500. The defendants appealed and plaintiffs also filed notice of appeal.

We deal first with questions pertaining to the amount of recovery. Defendants' motion for new trial stated the following grounds for relief:

'Come now the Defendants and move the Court to set aside the Judgment and Verdict in the above captioned cause and to grant Defendants a New Trial and/or to order a Remittitur in reduction of the amount of Judgment therein awarded, upon the following grounds:

'1. Because the verdict returned by the jury in the amount of Fifty Thousand Dollars ($50,000.00) is favor of Plaintiff, Clay Richard Webb, and Five Thousand Dollars ($5,000.00) in favor of Laveta Webb, is grossly excessive in the light of Plaintiff's, Clay Richard Webb, testimony, and that of his witnesses, in the nature of evidence adduced from these persons as to injuries and damages sustained by Plaintiff; further, said verdict is not supported by any of such testimony in evidence and is so excessive as to shock the conscience of the Court and to warrant the conclusion that the jury was moved by passion, prejudice and other improper considerations, including the imposing of a penalty upon these itinerant trucker Defendants in rendering said Judgment and Verdict; in addition, said Judgment and Verdict is against the greater weight and/or preponderance of the credible evidence, all for the following reasons: * * *.'

The trial court's order read:

'Now on this day, the Court being fully advised in the premises and having duly considered the defendants' motion for new trial, it is hereby ordered and adjudged as follows:

'If plaintiffs, within ten days from this date, will remit the sum of Ten Thousand Dollars ($10,000.00), with accrued interest thereon, from the verdict and judgment rendered on the 18th day of December, 1969, on Count I, and remit the sum of Two Thousand Five Hundred Dollars ($2,500.00), with accrued interest thereon, from the verdict and judgment rendered on the 18th day of December, 1969, on Count II, defendants' motion for a new trial will be overruled; otherwise, the motion for new trial will be sustained on the ground that the verdict of the jury is excessive, as set out in paragraph numbered 1 in Motion for New Trial.'

The defendants-appellants contend that the trial court, by its order conditionally awarding a new trial on the grounds stated in paragraph 1 of defendants' motion for new trial, inferentially found that the verdict was the result of passion and prejudice and that, having so found, the error could not be corrected by remittitur and required a new trial.

There is some inconsistency in the trial court's order. However, the defendants must bear at least a portion of the blame for any inconsistency inasmuch as they combined a request that, for only a single stated ground, the trial court 'grant Defendants a New Trial and/or * * * order a Remittitur in reduction of the amount of Judgment * * *.' Thus the defendants' motion combined 'mere' excessiveness, curable by remittitur, and excessiveness which indicates a verdict based upon bias and prejudice, remediable only by a new trial. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 340(12--14); Skadal v. Brown, Mo.Sup., 351 S.W.2d 684, 689(12--14); Stubbs v. Kansas City Terminal Railway Company, Mo.App., 427 S.W.2d 257, 260(1--3). Having invited the action which the court took, the defendants are not in a position to assert that such action was erroneous. Polen v. Kansas City Chip Steak Company, Mo.App., 404 S.W.2d 416, 421--422(5--7); 5 C.J.S. Appeal & Error § 1501, p. 857.

Even in cases in which the entry of an order similar to that in this case was not attributable to the defendant's contradictory motion, appellate courts have refused to give the defendant the benefit of an alternative conditional grant of a new trial for excessiveness evidencing bias and prejudice where the court also ordered a remittitur. In Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W.2d 736, the jury verdict for plaintiff was for $50,000. The trial court ordered a remittitur of $30,000, 'otherwise the (motion for new trial) will be sustained on the 15th specification thereof.' The 15th specification of the motion was: 'The verdict is excessive and the result of passion, prejudice and partiality * * *.' In rejecting the defendant's contention on appeal that the order amounted to a finding that the verdict was the result of passion and prejudice so that the excessiveness was not curable by remittitur, the Supreme Court pointed out that the alternative never became effective and that it was 'nothing more than an indication of what the court then thought the ruling would be in even the remittitur was not made.' 85 S.W.2d 742(12).

In Stubbs v. Kansas City Terminal Railway Company, Mo.App., 427 S.W.2d 257, the alternative order for a new trial on the grounds of excessiveness caused by bias and prejudice, after remittitur had been accepted, was held to have been an abuse of discretion which did not require the appellate court 'to order a new trial when the plaintiff has remitted in the amount required by the trial court.' 427 S.W.2d 262(9).

For the foregoing reasons and under the foregoing authorities, the contention of the defendants-appellants is rejected.

Defendants-appellants continue to urge here that the verdict was so excessive as to show that it was based on passion, prejudice and other improper considerations. As has often been pointed out, the amount of the verdict alone does not, insofar as this court is concerned, show that a verdict was based upon passion and prejudice. A complainant here must point to some incident or occurrence at the trial or some error which would engender bias, passion and prejudice. McConnell v. PicWalsh Freight Company, Mo.Sup., 432 S.W.2d 292, 301(18--21). Nothing of that nature has been pointed out by appellants. Cases relied upon by appellants, such as Killian v. Wheeloc Engineering Company, Mo.Supp., 350 S.W.2d 759, where the trial court ordered a new trial because of excessiveness of a verdict, and Combs v. Combs, Mo.Sup., 295 S.W.2d 78, and Nix v. Gulf, Mobile & Ohio R. Co., 362 Mo. 187, 240 S.W.2d 709, in which new trials were ordered after a plaintiff declined to remit the amount by which the trial court found the verdict excessive, do not support the position advanced here by appellants.

As above noted, plaintiffs also filed notice of appeal and now assert as appellants that the contention here advanced by defendants-appellants reveals that their attack on the amount of the verdict was based upon excessiveness, the result of passion and prejudice, and therefore the verdict should be reinstated because of the absence of any basis in the record for a finding of passion and prejudice.

Although the rule is not the same in all jurisdictions (see Annotation, 16 A.L.R.3d 1327, 'Comment Note--PARTY'S ACCEPTANCE OF REMITTITUR IN LOWER COURT AS AFFECTING HIS RIGHT TO COMPLAIN IN APPELLATE COURT AS TO AMOUNT OF DAMAGES FOR PERSONAL INJURY.'), Missouri has adopted the rule that a plaintiff who consents to a remittitur 'may not question the validity of the order after accepting it.' Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 105--106(25--29). The attempt by plaintiffs to condition their acceptance of the remittitur in the event of appeal by defendants is unavailing. Woodworth v. Chesbrough, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005. The attempted appeal of the plaintiffs must be dismissed. Carver v. Missour-Kansas-Texas R. Co., supra.

Defendants-appellants contend that Webb was guilty of contributory negligence as a matter of law. Viewing the evidence most favorably to plaintiffs, the circumstances of the collision were as follows:

Webb was employed as a lead sign hanger. On June 9, 1967, he had arisen at 5:00 A.M., eaten breakfast, driven to work in his 1963 Oldsmobile sedan, eaten lunch and done eight hours work ending at 4:30. After work he and a fellow employee went fishing. They had no dinner and consumed three cans of beer each while they fished until around 12:30...