Wicker v. Knox Glass Associates

Decision Date09 July 1951
Docket NumberNo. 1,No. 42196,42196,1
Citation362 Mo. 614,242 S.W.2d 566
PartiesWICKER v. KNOX GLASS ASSOCIATES, Inc., et al
CourtMissouri Supreme Court

N. Murray Edwards, Ninian M. Edwards, St. Louis, for plaintiff-appellant.

George A. Hodgman and William J. McCluggage, St. Louis, for respondent Knox Glass Associates, Inc.

Chapman & Chapman, St. Louis, for respondent General Grocer Co.

COIL, Commissioner.

This is an action for damages for personal injuries. Trial resulted in a verdict for $15,750 against respondent Knox Glass Associates, Inc., a corporation, hereinafter referred to as defendant Knox, and a verdict in favor of respondent General Grocer Company, a corporation, hereinafter referred to as defendant General Grocer. Appellant will be referred to as plaintiff. The verdicts were returned and judgment entered thereon on April 26, 1950. On May 3, 1950 plaintiff filed a motion for new trial as to defendant General Grocer, and on May 5, 1950 defendant Knox filed its motion to set aside the judgment for plaintiff and to enter judgment for defendant Knox in accordance with its motion for directed verdict or, in the alternative, for a new trial. On July 3, 1950 the trial court overruled plaintiff's motion for new trial as to defendant General Grocer, and also on July 3, 1950 made this order: 'If the plaintiff will within ten days enter a remittitur in the sum of $3,750.00 from the verdict and judgment of $15,750.00, heretofore entered herein on the 26th day of April, 1950, thereby reducing said verdict and judgment to $12,000.00, motion of defendant Knox Glass Associates, Inc., a corporation, filed herein will be overruled; otherwise, judgment will be set aside on ground #13 of defendant's motion as being excessive.'

Plaintiff failed to enter the remittitur as specified.

On July 13, 1950 plaintiff filed separate notices of appeal, one from the judgment entered on April 26, 1950 in favor of defendant General Grocer and the other from the order of the court heretofore set forth, and on July 22, 1950 filed a separate notice of appeal from the order of July 3.

On August 3, 1950 the following order was made by the trial court: 'Defendant Knox Glass Associates, Inc., Motion for New Trial Sustained. Nunc pro tunc order. Plaintiff having failed to comply with order of remittitur of July 3, 1950, defendant Knox Glass Associates, Inc., a corporation, motion for a new trial is sustained on ground 13 of said defendant's motion. Judgment of April 26th, 1950, set aside and vacated and for naught held. Nunc pro tunc as of July 14th, 1950. Cause reinstated upon docket.' And on August 7, 1950 the following order was made by the trial court: 'On August 7, 1950, the Court (Judge Ivan Holt sitting in Division No.6) on its own motion amends its nunc pro tunc order of August 3, 1950, by adding the words 'as being excessive' following the word 'motion' in line 5 thereof, so that said line reads: 'dant's motion as being excessive."

Plaintiff contends that the order of July 3, 1950 is 'ambiguous, illegal and beyond the jurisdiction and power of the trial court' and that the judgment for plaintiff in the original amount entered is an unappealed final judgment; plaintiff also contends that if the order of July 3 properly sustained the motion of defendant Knox for a new trial, then the trial court abused its discretion in requiring a remittitur as a condition to overruling the motion of defendant Knox for new trial.

In the recent case of Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, we held that where, within the prescribed ninety-day period, the trial court orders a remittitur within a specified time as a condition to overruling a motion for new trial and the remittitur is not made as specified, the order becomes final and appealable at the expiration of the time specified for remittitur, and that the new trial is granted as of the date when the conditional order was entered. Thus, in this case, if the order of July 3, 1950 was a proper alternative order sustaining the motion of defendant Knox for a new trial, the case is properly here on plaintiff's appeal of July 22, 1950 (within ten days after the order became appealable) from the order of the trial court of July 3, 1950 sustaining the motion of defendant Knox for a new trial.

Plaintiff's contention in the final analysis is that the order of July 3, 1950 is subject to various interpretations and therefore void. This contention is based upon the view that it cannot be determined from the language of the order whether the trial court sustained the motion of defendant Knox to set aside the judgment for plaintiff and enter judgment for defendant Knox, or sustained the motion of defendant Knox for a new trial. We think this contention is without merit. While the order of July 3, 1950 is perhaps not a model of clarity and completeness, nevertheless, there can be no question whatever of the meaning and effect of that order. It clearly recites that the motion of defendant Knox will be overruled if a remittitur is entered within ten days and otherwise the 'judgment will be set aside on ground #13 of defendant's motion as being excessive.' Assignment No. 13 in the alternative motion of defendant Knox was 'because the verdict is high, unreasonable, excessive and unconscionable.' It is true that the order of July 3 does not say that if remittitur is not made the motion of defendant Knox for a new trial will be sustained. It is also true that the order does not, in so many words, overrule the motion of defendant Knox to set aside judgment for plaintiff and to enter judgment for defendant Knox. The fact that the order refers to Ground No. 13 of the motion, excessiveness of verdict, demonstrates that the court was acting upon an assignment pertaining to new trial as opposed to any assignment in the motion to set aside judgment for plaintiff and enter judgment for defendant. This, for the obvious reason that excessiveness of verdict could, under no circumstances, be a ground for entering judgment for defendant. We further think that the order reasonably construed effectively overruled the alternative motion of defendant Knox to set aside the judgment for plaintiff and enter judgment for defendant. Be that as it may, however, the alternative motion of defendant Knox to set aside judgment for plaintiff and enter judgment for defendant was automatically overruled at the time the motion for new trial was determined. Supreme Court Rule 3.24 provides in part: 'Any authorized after-trial motion not passed on at the time the motion for new trial is determined shall be deemed overruled as of the same date.' The order as to defendant Knox became appealable upon the expiration of the ten-day period granted plaintiff to make his choice as to remittitur. Steuernagel v. St. Louis Public Service Co., supra. Thus plaintiff's appeal on July 22, 1950 (within ten days after the expiration of the ten-day period for remittitur) was a timely and proper appeal from the order of the court sustaining the motion of defendant Knox for new trial. The subsequent orders made by the trial court on August 3 and August 7, 1950, respectively, were simply entries completing the record as to what had occurred and related back to the time of the occurrence. These subsequent orders need not be considered as their only purpose was to complete the record in the trial court. Steuernagel v. St. Louis Public Service Co., supra.

Plaintiff further contends that the trial court abused its discretion in ordering a remittitur as a condition to overruling the motion of defendant Knox for new trial. In determining the propriety of the action of the trial court in granting a new trial on the ground of excessiveness of verdict, we view the evidence in the light most favorable to affirming the action of the trial court, and if the evidence viewed in such light 'does afford reasonable and substantial support for the trial court's order or remittitur, then there could be no abuse of discretion and the trial court's action must be sustained.' Steuernagel v. St. Louis Public Service Co., supra, 238 S.W.2d 431, 432. The trial court has a broad discretion in granting a motion for new trial, particularly where the motion is ruled on the ground of excessiveness which is in effect the same as though the court had granted a new trial on the ground that the verdict is against the weight of the evidence. Steuernagel v. St. Louis Public Service Co., supra, and cases cited at page 431 of 238 S.W.2d of that opinion.

Upon a full consideration of the evidence, we do find reasonable and substantial support for the order of the trial court requiring a remittitur and in granting a new trial upon plaintiff's failure to remit as specified.

Plaintiff, a practicing dentist, 55 years of age, sustained a deep cut on his right hand, 2"' or 2 1/2"' in length, while engaged in an attempt to remove the lid from a glass jar of coffee. The laceration was closed by seven sutures, and the hand immobilized. The wound was dressed from time to time, and physiotherapy treatments administered from November, 1947 until February, 1948 to prevent stiffness. There remains a 2"' permanent scar across the heel of the hand and a numbness at the tip of, and extending along the outer side of, the right thumb. Plaintiff regained full muscular use of the hand; can bend it in either direction and rotate it inwardly and outwardly. His sole remaining disability is in being unable to lift small objects with his right thumb and forefinger, making it necessary in his dental practice to place instruments and other small objects in his right hand by use of his left hand. Plaintiff can use dental instruments in his right...

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  • Listerman v. Day & Night Plumbing & Heating Service, Inc.
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    ...See also 4 C.J.S. Appeal and Error Sec. 183b(1), p. 559.7 Walker v. Thompson, Mo., 338 S.W.2d 114, 116(3); Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566, 571(8); State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324, 330; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, 4......
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