Steuernagel v. St. Louis Public Service Co.

On Motion for Rehearing or to Modify Opinion.

HYDE, O. J.

Plaintiff’s motion for rehearing raises again the same questions decided by óur opinion as to the construction of Section 510.360, R. S. 1949, and its application to remittitur practice, and it is overruled. However, plaintiff asks for a modification of'the opinion to make final disposition of this case, saying only the issue of the amount of damages remains and this has been briefed by both parties, citing Section 140(c) of the Code, Section 512.160(3), R. S. 1949 and Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 S. *1074W. (2d) 905. (See also Cole v. St. Louis-S. F. R. Co., 332 Mo. 999, 61 S. W. (2d) 344; Atlantic Nat. Bank v. St. Louis Union Trust Co., 357 Mo. 770, 211 S. W. (2d) 2, Nelson v. Kansas City, 360 Mo. 143, 227 S. W. (2d) 672.) Under these cases, we have authority to direct the judgment that should be entered, even though the trial court ordered a new trial; and this case has been in the courts for some time. (See Steuernagel v. St. Louis Public Service Co., Mo. App., 202 S. W. (2d) 516; 357 Mo. 904, 211 S. W. (2d) 696.) Since plaintiff by the motion to modify, requests such a final disposition now, indicating she, does not desire a new trial, and since defendant has not contended in its brief that there is any ground other than excessive verdict which would sustain the granting of a new trial, we will pass on the issue of damages and give directions for a final disposition of this case.

Plaintiff contends that we must consider only the evidence most favorable [431] to her in determining the amount of damages that can be sustained. This view finds some support in one statement in Dodd v. Missouri-Kansas-Texas R. Co., supra, cited by plaintiff, but it is not the rule to be applied in determining the propriety of the trial court’s action in granting a new trial upon any ground (such as excessiveness of verdict) involving the trial court’s power to weigh the evidence. The Dodd case (in which the situation on appeal was the same as in this case) stated, in the first part of the opinion, the rule applicable to appellate courts. (193 S. W. (2d), l. c. 907: “In considering the question of whether a verdict is excessive a court must take into consideration the plaintiff’s evidence in its most favorable light to plaintiff.”) The cases cited in support of this statement were all cases in which the trial court had found the verdict not excessive and had refused to order a remittitur. The difference of the situation in the trial court was not specifically noted therein; but the actual ruling was “that the record does not justify a holding that the verdict was such as would authorize a court, exercising reasonable discretion, to order a remittitur.” (See also Nix v. Gulf M. & O. R. Co., No. 41980, Div. No. 1, decided concurrently herewith.) Thus it would seem that this Court in the Dodd case actually applied the “abuse of discretion” rule applicable to the trial court, instead of the rule applicable to appellate courts, previously stated in the opinion.

The rule applicable here is that when a trial court grants a new trial on the ground of excessiveness (or inadequacy), it is equivalent to granting a new trial on the ground that the verdict is against the weight of the evidence. (Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S. W. (2d) 610, 611; Sofian v. Douglas, 324 Mo. 258, 23 S. W. (2d) 126, 129; Coats v. News Corporation, 355 Mo. 778, 197 S. W. (2d) 958; Lang v. St. Louis Public Service Co., (Mo. App.), 204 S. W. (2d) 504, 506; O’Shea v. Pattison-McGrath Dental *1075Supplies, 352 Mo. 855, 180 S. W. (2d) 19, 23; Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S. W. (2d) 698; Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S. W. (2d) 189.) The trial court is allowed a wide discretion in granting a motion for a new trial and this is particularly so where the court has ruled the motion upon the amount of the verdict and, thus, upon the weight of the evidence. (O’Shea v. Pattison-McGrath Dental Supplies, supra; Lang v. St. Louis Public Service Co., supra; Mitchell v. Pla-Mor, Inc., supra; Moss v. May Department Stores Co., (Mo. App.), 31 S. W. (2d) 566, 567; Reichmuth v. Adler, 348 Mo. 812, 155 S. W. (2d) 181, 182; DeMaire v. Thompson, 359 Mo. 457, 222 S. W. (2d) 93, 97.) In considering the size of the verdict herein, the trial court had the right to weigh the evidence. To do so, the trial court could take into consideration all of the evidence pertaining to plaintiff’s injuries and physical condition and not merely plaintiff’s evidence which was most favorable. The trial court had the right to consider and weigh the conflicting evidence offered by defendant and to evaluate all of the evidence in the light of the trial court’s opportunity to see, hear and observe plaintiff and the various witnesses who testified. This is an important function of the trial court. We could not properly determine the propriety of the trial court’s action by applying a different rule or test — by considering only plaintiff’s evidence in its light most favorable to her. While an appellate court should not undertake to weigh the evidence on the issue of plaintiff’s damages, it should examine the record to determine whether there is substantial evidence supporting the view that plaintiff’s injuries were less serious and disabling than claimed by plaintiff, or that some of her physical infirmities did not result from the accident she suffered. (Riche v. City of St. Joseph, 326 Mo. 691, 32 S. W. (2d) 578, 579; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S. W. (2d) 458, 464; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., (Mo. App.), 227 S. W. (2d) 499, 503; Green v. First National Bank of Kansas City, 236 Mo. App. 1257, 163 S. W. (2d) 788, 791.) If the evidence viewed in the light most favorable to upholding the ruling of the trial court, does afford reasonable and substantial support for the trial court’s order of remittitur, [432] then there could be no abuse of discretion and the trial court’s action must be sustained.

After a careful consideration of the evidence in this case, we find that there was a reasonable and substantial basis for the action of the trial court in fixing the amount for which he would enter judgment for plaintiff in this case. Plaintiff had no broken bones and no bone injury. She was thrown around in the ear by the collision and got a bump on the head and a bruise on her left knee. However, these soon healed. Her most serious injury was to her right hip (buttock) which resulted in a permanent injury to one of the gluteal muscles. Some of the fibres of the gluteus maximus were ruptured *1076and this area was filled in with scar tissue, leaving a depression about 3 inches in width and about 8 inches in length, and from one-half to three-quarters of an inch deep, which is- sensitive and has caused pain ever since whenever plaintiff lifts anything or goes up or down steps. It also pains her in sitting or lying on that side and causes pain in her back. She has also had irregular and longer menstruation periods ever since her injury with excessive flow and dizzy spells. The medical evidence was that this could have been caused from shock from the violent injury and that this could produce a nervous condition which might cause it to continue indefinitely.

However, the injury to plaintiff’s hip did not cause any limitation of movement of her leg (although her activity was affected by pain from it) and the medical evidence was that it was disfiguring but not disabling. Plaintiff was npt employed at the time of the collision (October 13, 1945) but went to work for the International Shoe Company, January 8, 1946, doing office work; and worked there until she was married in November 1947. She had a child born the next year and the medical evidence was- that the birth canal was found normal in an examination before the last trial herein in March 1949. She did not walk with any limp; and there was evidence that her menstrual condition would be relieved if her nervousness could be cured, and that it was not due to any organic- cause. We think there was a reasonable basis for the trial court’s finding of $5000.00 as a sufficient amount of damages and this is also supported by the view of the jury in the first trial, which found a verdict for $6000.00. (See also Arno v. St. Louis Public Service Co., 356 Mo. 584, 202 S. W. (2d) 787; McGarvey v. City of St. Louis, 358 Mo. 940, 218 S. W. (2d) 542; Kulengowski v. Withington, Mo. App., 222 S. W. (2d) 579; Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S. W. (2d) 713; Harvey v. Gardner, 359 Mo. 730, 223 S. W. (2d) 428.) We cannot hold that there was any abuse of discretion by the trial court.

Our affirmance of the order granting a new trial is set aside and the cause is remanded with directions to set aside the order granting a new trial and to allow plaintiff to file a remittitur, of $5000.00 as of the date of the original judgment, within a time to be fixed by the trial court, and thereupon to enter judgment for plaintiff for $5000.00; or if such remittitur is not made to order a new trial on the ground that the verdict is excessive.

All concur.