Rood v. Kansas City Power & Light Co.

Lockett, J.,

dissenting: I agree with the assessment of attorney fees against plaintiff pursuant to K.S.A. 60-2007.1 also agree that *26it was error not to admit evidence of plaintiffs medical bills incurred after treatment by Dr. Alvarez. However, I must dissent from that portion of the opinion which holds that an appellate court may increase a jury verdict by additur, on the same basis as a remittitur, even where (1) the plaintiff has not requested an additur and (2) the evidence upon which the additur is based was not considered by the jury.

There is authority from other jurisdictions that additur should not be allowed on the same basis as remittitur. This view is supported by the argument that, in the case of remittitur, the final judgment stands for an amount found by the jury. See Holcomb v. Bullock, 353 Mich. 514, 91 N.W. 2d 869 (1958). Here, the majority is increasing the judgment by adding the amount of a medical bill that was not considered by the jury. Some jurisdictions which do allow an additur distinguish between liquidated and unliquidated damages. In those jurisdictions, there is little dispute regarding the power of a trial or an appellate court to increase an inadequate verdict in cases involving liquidated damages, contract cases, cases where both parties have stipulated as to a damage item, cases where damages are fixed by law, or cases where damages may be determined by undisputed mathematical calculation. However, substantial controversy exists regarding such appellate powers in unliquidated damages cases. 5 Am. Jur. 2d, Appeal and Error § 946, p. 373. The reluctance of courts to use the additur power in cases involving unliquidated damages, in particular, tort cases, is grounded in the realization that to do so would be to usurp the power of the jury to determine damage awards.

The majority opinion states, in holding that the trial court committed error in refusing to admit Dr. Alvarez’s medical bills, that the bills needed only to be relevant to be admitted and that “any questions about the amount of the bill go to the weight of the evidence and not its sufficiency.” This statement implies that Alvarez’s bills belong in the category of disputed or unliquidated damages. Testimony during trial indicated that the plaintiff was sent to Dr. Alvarez by her attorneys, that the bill was sent not to her, but to her attorneys’ office, and that Dr. Alvarez wrote a report regarding her condition and sent it to her attorneys.

In actions where both parties agree that there was an error in *27the award for damages, or where the award is clearly at variance with the evidence produced at trial, the Kansas trial or appellate courts may correct the judgment. In Kremer v. Kremer, 76 Kan. 134, 90 Pac. 998 (1907), cited by the majority, the court held that in a divorce case an error in awarding land to a party contrary to the statutory law can be corrected and a new trial avoided if the error does not affect the whole case. In Schlesener v. Mott, 107 Kan. 41, 190 Pac. 745 (1920), also cited by the majority, the jury awarded an amount in damages which did not conform to the undisputed evidence. The trial court remitted the judgment and the appellate court affirmed. However, neither Kremer nor Schlesener nor any other Kansas case, supports the proposition that an appellate court, after the damage award has been decided by the jury, has the power to add a further allowance for an item of damages not submitted to the jury. See Woodmansee v. Garrett, 247 Miss. 148, 153 So. 2d 812 (1963).

Without analyzing when it is proper for a court to grant a remittitur, the majority merely states that an additur may be allowed on the same basis as a remittitur. When is a remittitur allowed? Only where the verdict is excessive in relation to the evidence can the appellate courts remit the excess and affirm the judgment upon its being remitted and accepted by the parties. Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352 (1886). A remittitur cannot be granted by a court where the excessive verdict is due to passion or prejudice of the jury, inadvertence, or error of law or computation. Railroad Co. v. Richards, 58 Kan. 344, 49 Pac. 436 (1897). Therefore, the additur as adopted by the majority cannot be granted if the inadequate verdict is due to passion or prejudice of the jury, inadvertence, or error of law or computation. An additur may only be granted when the admitted evidence clearly shows that the jury’s verdict is inadequate.

The majority’s new right of an additur creates three problems. First, it overrules all our prior law that where a jury’s award is inadequate the party’s remedy is a new trial. Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 (1961). Second, it is contrary to the statutory requirement of a new trial when the trial judge improperly excludes evidence. K.S.A. 60-259(a). Finally, if additur is allowed on the same basis as remittitur, this plaintiff is not entitled to an additur. Here, the medical *28bills were improperly excluded from consideration by the jury; thus, the trial judge erred in law by excluding the evidence. An error of law is not a basis for granting either a remittitur or an additur.

Kansas appellate courts may correct a judgment as to matters of form, clerical errors, or elements of damage stipulated to by both sides and clearly a part of the record. K.S.A. 1987 Supp. 60-2101(a) and (b). There is no statutory authority or prior case law for either the trial court or an appellate court to increase the judgment as to matters of substance that are required to be passed upon by the jury. Prior to this decision, the issue of the admission or exclusion of evidence had to be raised by a motion for a new trial. Kinney v. Atchison, Topeka & S. F. Rly. Co., 193 Kan. 223, 224, 392 P.2d 873 (1964), Mid-State Homes, Inc. v. Hockenbarger, 192 Kan. 505, 389 P.2d 760 (1964); Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P.2d 645 (1963). This applies even where excluded evidence is documentary. Mid-State Homes, Inc. v. Hockenbarger, 192 Kan. at 510-11. A party that has not been afforded a reasonable opportunity to present his evidence to a jury because the trial judge has excluded the evidence has a statutory right to a new trial. K.S.A. 60-259(a).

There is no question but that a new trial will result in added effort and expense. However, the majority of this court should not ignore the statutory law, overrule our prior case law, and increase a jury verdict by considering evidence that was excluded from the jury’s consideration. The majority’s adoption of the additur now allows judges to weigh evidence that was not submitted to the jury and reach a different verdict.