Wessels v. Smith, 49246
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | PER CURIAM |
| Citation | 362 S.W.2d 577 |
| Parties | Verene WESSELS, Respondent, v. Virgil W. SMITH, Appellant |
| Docket Number | No. 49246,No. 2,49246,2 |
| Decision Date | 11 December 1962 |
Page 577
v.
Virgil W. SMITH, Appellant.
Page 578
Randolph & Randolph, St. Joseph, for respondent.
Downs & Pierce, St. Joseph, for appellant.
STOCKARD, Commissioner.
Defendant has appealed from an order of the trial court granting plaintiff a new trial on the issue of damages only after a jury verdict in the amount of $1,500. Jurisdiction of this appeal is in this court because the action of the trial court reinstated plaintiff's claim under the petition in which she sought damages in excess of $27,000. Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126. By way of caveat, however, we note the different rule when plaintiff appeals from an order allowing a new trial to defendant when the verdict was less than our jurisdictional amount. See State ex rel. Long v. Ellsion, 272 Mo. 571, 199 S.W. 984; Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83.
The order of the trial court granting the new trial from which this appeal is taken states that it was entered 'on the grounds that the verdict in the sum of Fifteen Hundred Dollars ($1,500.00) for the plaintiff is inadequate.' That was the only ground for new trial set forth in plaintiff's motion.
The defendant's only contention on this appeal is that 'The trial court erred in granting plaintiff a new trial on the ground that the jury award was inadequate because plaintiff had heretofore in the first trial been granted a new trial on this ground.' We have searched the transcript filed in this appeal in vain to find anything there which indicates that a previous new trial was granted for that reason. However, in appellant's brief he refers to a previous opinion by this court in Wessels v. Smith, Mo., 341 S.W.2d 104, and by taking judicial notice of our own files pertaining to a previous appeal in the same case (see Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329), we find that after a previous trial of this case, in which the jury returned a verdict in favor of plaintiff in the amount of $1,000, a new trial was allowed the plaintiff on the issue of damages only on the ground that the verdict was inadequate.
Civil Rule 78.01, V.A.M.R., provides that the trial court may grant a new trial for the reasons and under the circumstances therein set out, but that...
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