Webb v. Rench, No. 55661

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation476 S.W.2d 570
Decision Date10 January 1972
Docket NumberNo. 1,No. 55661
PartiesClay 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

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.

Page 571

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

Page 572

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...

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4 practice notes
  • Miller v. National American Life Ins. Co.
    • United States
    • California Court of Appeals
    • January 14, 1976
    ...states have recently elected to retain the common law rule, which apparently remains the majority position. (Webb v. Rench (S.Ct.Mo.1972) 476 S.W.2d 570, 573; Hudson v. Otero (1969) 80 N.M. 668, 672, 459 P.2d 830, 834; Friendly Finance Company of Biloxi, Inc. v. Mallet (S.Ct.Miss.1971) 243 ......
  • Means v. Sears, Roebuck & Co., No. 59571
    • United States
    • Missouri Supreme Court
    • May 12, 1977
    ...should be ordered reinstated. That action was based on the conclusion that under decisions of this court, including Webb v. Rench, 476 S.W.2d 570 (Mo. 1972) and Carver v. Missouri-Kansas-Texas R.R., 362 Mo. 897, 245 S.W.2d 96 (1952), a plaintiff who consents to a remittitur may not question......
  • Howard v. Lundry, No. 11007
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1979
    ...from the amount of the verdict alone. Some other basis for making a determination of bias and prejudice must be shown. Webb v. Rench, 476 S.W.2d 570, 572-573 (Mo.1972). Looking at the record, we find no showing of anything which might indicate bias and prejudice on the part of the jury. We ......
  • Coates v. U.S. Fidelity & Guar. Co., No. 35770
    • United States
    • Missouri Court of Appeals
    • June 10, 1975
    ...and absent a showing of either bad faith or prejudice that discretion reposed in the trial court is not abused. See Webb v. Rench, 476 S.W.2d 570 (Mo.App.1972) and Bickel v. American Trust Life Ins. Co., 468 S.W.2d 873 Turning to plaintiffs' second claim, we note that the payment bond is ex......
4 cases
  • Miller v. National American Life Ins. Co.
    • United States
    • California Court of Appeals
    • January 14, 1976
    ...states have recently elected to retain the common law rule, which apparently remains the majority position. (Webb v. Rench (S.Ct.Mo.1972) 476 S.W.2d 570, 573; Hudson v. Otero (1969) 80 N.M. 668, 672, 459 P.2d 830, 834; Friendly Finance Company of Biloxi, Inc. v. Mallet (S.Ct.Miss.1971) 243 ......
  • Means v. Sears, Roebuck & Co., No. 59571
    • United States
    • Missouri Supreme Court
    • May 12, 1977
    ...should be ordered reinstated. That action was based on the conclusion that under decisions of this court, including Webb v. Rench, 476 S.W.2d 570 (Mo. 1972) and Carver v. Missouri-Kansas-Texas R.R., 362 Mo. 897, 245 S.W.2d 96 (1952), a plaintiff who consents to a remittitur may not question......
  • Howard v. Lundry, No. 11007
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1979
    ...from the amount of the verdict alone. Some other basis for making a determination of bias and prejudice must be shown. Webb v. Rench, 476 S.W.2d 570, 572-573 (Mo.1972). Looking at the record, we find no showing of anything which might indicate bias and prejudice on the part of the jury. We ......
  • Coates v. U.S. Fidelity & Guar. Co., No. 35770
    • United States
    • Missouri Court of Appeals
    • June 10, 1975
    ...and absent a showing of either bad faith or prejudice that discretion reposed in the trial court is not abused. See Webb v. Rench, 476 S.W.2d 570 (Mo.App.1972) and Bickel v. American Trust Life Ins. Co., 468 S.W.2d 873 Turning to plaintiffs' second claim, we note that the payment bond is ex......

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