*1 102 were clearly errone-
ment 27.26(j); State, 515 Rule Gates v. ous. (Mo.App.1974). 762 S.W.2d transcript We have read the hearing, evidentiary including the record of wherein proceedings appellant entered The guilty. guilty plea record plea his Ap clearly appellant’s refutes contention. he hope false and ill-founded pellant’s granted probation placed or would parole does not his un invalidate judicial voluntary guilty. plea equivocal State, (Mo.App.1974). 53 v. Day judgment is affirmed. The concur. All Fleischaker, Defender, William J. Public Best, Stephen Carolyn BEST for Joplin, movant-appellant. Plaintiffs-Respondents, Danforth, Atty. Gen., C. Philip John M. Gen., Koppe, Atty. City, Asst. Jefferson CO., et CONSTRUCTION WEBER FRED respondent. Defendants-Appellants. al., No. Judge. BILLINGS, Chief Appeals, Court Missouri appealed Charles Lee Slankard has District, Louis St. Jasper order of the Circuit Court of Division Two. County overruling 27.26, his Rule V.A.M.R. five-year vacate a motion 20, 1975. May for armed robbery. sentence We affirm. Rehearing Transfer Motion 26, 1975. June Denied only ground preserved for ap review is the pellate finding court’s
conclusion, following an evidentiary hear 1972
ing, appellant’s guilty plea voluntarily
entered with full under
standing of the nature of charge. All grounds asserted his motion
other are State,
deemed abandoned. Crow v. (Mo.App.1974). post-conviction
Our pro review
ceedings is limited to determination findings, judg- conclusions and *3 Fitzsimmons,
Paul E. Fitzsimmons & Fitzsimmons, Inc., Attorneys, Clayton, for defendants-appellants. Raack, Hearnes, Padberg, J.
William Slater, Louis, Raack, McSweeney & St. for plaintiffs-respondents.
KELLY, Judge. appeal This from the Circuit Court of the Louis, Missouri, City of St. from a judg- awarding of that plaintiffs, ment Court wife, damages husband and for sus- wife, Best, by Carolyn tained and loss consortium medical expenses in- part husband, on the Stephen curred Best femur, Carolyn Best, of the left presents for review in ral fracture this court the days. 9 or 10 following in traction Points: placed Thereafter, operation performed 1. excessiveness of verdict indicating femur was back into placed where prejudice bias and on the part of the plates by the use metal alignment jury; the bone. into She remained screwed trial court erred in reducing not origi- another week. hospital approximately $50,000.00 nal verdict of for Mrs. Best had a child suffered as Mrs. Best $20,000.00 for Mr. Best below the legs. had affected both poliomyelitis judgment from which this appeal was However, was able to walk herself she taken after by $20,000.00 reduction leg long lateral braces with use $8,000.00 respectively, aor total After Canadian crutches. her release from $42,000.00; *4 hospital required she was to use the a wheel in error overruling objec- defendant’s approximately during chair 6 months to plaintiffs tion closing argument she do very time could few household designed which was to arouse bias toUp chores. the time of trial Mrs. Best and prejudice against defendant; the used the wheelchair in the still sometimes and evening addition, she was In when tired. 4. precluding evidence to precau- show continually experienced leg she has and tions defendant took to make the exit pain. orthopedic surgeons Two back testi- ramp safe. had good recovery, fied that made a but she for her lower tendency a limb roll out Defendant does not question the suffi- the that she pain experienced and were ciency of the evidence. permanent conditions.
The facts of the case are: Stephen he Best testified that incurred Shortly after midnight Saturday, medical, on housekeeping Oc- wheel chair and ex- 18, 1969, tober plaintiff-respondents, $4,402.65. amount of penses Caro- in the Best, lyn Stephen and were riding in a car a on jury returned verdict Count I in defendant, driven Ted Gilmor. Defend- Best, Carolyn of plaintiff, favor in the ant Gilmor was traveling west U. on S. $50,000.00 and II amount of on Count in Highway 44 he when took the westbound Best, Stephen of plaintiff, favor Eureka, ramp exit at Missouri. He did not $20,000.00. Both counts were amount a sharp see at curve the top ramp of the Fred Construction against defendant Weber sufficiently time to slow down and the car co-defendant, in favor of but Company traveled down an striking embankment an- Gilmor. Ted other ear at the bottom of the hill. Neither Subsequently, Fred defendant Weber defendant, nor any Gilmor of the other Company Construction filed a motion a passengers any noticed warning signs indi- new The trial if, trial. court stated that turn, cating a right although flashing red days, Carolyn within 10 Best would remit lights were observed ahead and right to the $20,000.00 Stephen the sum of and Best addition, of the vehicle. In several other $8,000.00, sum of would remit defend- witnesses testified that warning signs no ant’s motion for a new would trial be over- posted were along ramp. Otherwise, the
ruled.
motion would
sus-
be
of the
left the scene
plaintiffs
ground
tained on
the verdict was
Both
taken
and were
Thereafter,
an ambulance
did
plaintiffs
excessive.
re-
accident
Best
Stephen
Hospital.
mit such amounts and the
a
Rockwood
motion for new
spi-
a
Suffering from
released.
overruled.
15,
trial was
On November
treated
not
will
court
trial
1973,
Fred
Construction
defendant
Weber
Israel
v.
Morris
appeal.
with
on
Appeal
Notice of
Company filed its
disturbed
Inc., supra.
Brothers,
this Court.
is, we con
point
first
Defendant’s
resolving
In
question
a
alone,
clude,
verdict
without merit. Size of
reduction is required,
further
in the verdict
(as
might
be excessive
the fact that
Best,
Mrs.
awarded
this court must consider
here),
itself
found
does not of
the trial court
and extent of
the nature
verdict was the result of
establish that
losses, plaintiff’s age and diminished earn
prejudice
show
bias, passion or
without the
ing
any,
if
capacity,
the changing economic
committed at the trial.
error
ing of some
factors, and
ap
the amount awarded and
Co.,
Public
v.
Louis
Service
Boehm St.
proved
fairly
cases
similar
simi
361,
(Mo.1963). Only the trial
S.W.2d
injuries.
comparable
Dulle,
Helming
lar
prejudice
bias
infer
may
(Mo.1969).
Carolyn
verdict,
Ry.
Jones v. Penn
size
mere
Best, plaintiff-wife,
years
was 28
at
age
157,159
163,182
(1944),
Co., 353 Mo.
the time
the accident. She
sustained
opportunity
of its better
this because
thigh.
fracture of
spiral
her left
Her hospi
pro
general effect of
measure
weeks,
lasted two
stay
tal
and one-half
nine
courts, on
ceedings
jury. Appellate
days
spent
of which she
or ten
traction.
*5
hand, although
to cor
empowered
the other
surgery whereby
underwent
She
metal
in a
the excessiveness of a verdict
rect
plates were screwed to the bone of the
remittitur,
by
may not infer
case
proper
femur. She was confined to wheel
a
chair
the mere
of the verdict
prejudice
size
approximately
for
six months. At the time
Co., supra. Here,
Ry.
v. Penn
Jones
alone.
still experiencing
of trial she was
pain —a
the size of the
court considered
the
throbbing
leg
back,
her left
her
and in
—in
verdict,
it to be excessive al
determined
and
was an external
there
rotation attitude
and prejudice
of bias
though not the result
left lower
perma
of her
limb which will be
jury,
the
and ordered a
part
the
of
easily
more
tires
and
nent. She
occasional
was
error
Unless there
some
remittitur.
ly
her wheel chair.
uses
at
the trial we must affirm.
committed
Although
find
directly
we
no case
point, like its
second
Defendant’s
a
cases
point, we have
few
us
lend
first,
merit.
the evi
is likewise without
If
deciding
size
the
of this
guidance
some
dence,
light
most favorable to
viewed
Lycon
and its excessiveness.
In
v.
verdict
court,
the trial
affords reason
ruling of
Walker,
(8th
1960)
less Other his wife’s services and regards it strongly so weight, he great the additional burdens was thereby except in a case which un have, Stephen that Best persuasive incurred out- caused reduction, greater $4,402.65. calls for a mistakably of-pocket expenses of
1Q7 of clear abuse of its respect appellate discretion to Mr. Best’s claim With reluctant is to find following ap awards error. Norfolk v. we have found Ry. Greening, Western Co. v. 458 S.W.2d proved: 268, (Mo.1970). argues Defendant argument that of plaintiffs’ this counsel to telling jury amounted that its verdict would teach the defendant and other con- a tractors lesson. It cites authority no position this and our brought research has Considering purchas- that erosion light holding. none to so We believe this ing power of dollar amounted 20%to argument might line of also be viewed as a knowledge between 1965 and the by statement that its verdict jury will then, of a further decline since we cannot it, make clear what as a group of disinter- judgments find these excessive. Bedwell v. ested citizens of the community, as views Milwaukee, Chicago, St. Paul and Pacific R. failure to exercise the degree reasonable Co., (Mo.1974). R. necessary care high- construction way ramps and the marking same has Defendant failed to show that warn those legally progressing over and jury prejudice motivated bias upon ramps any dangerous conditions affirm the we therefore trial court on this existing thereon. We conclude that under point. the facts of this case the trial court did not third is Defendant’s Point directed to abuse its discretion and rule that this Point plaintiff’s arguing jury counsel to the that is without merit. passed while laws can be doesn’t mean juries them, anything unless enforce “. fourth, Defendant’s and final yourself Point, And don’t kid Fred that Weber is the trial court erred in exclud Company Construction and other ing contrac- from evidence that defendant construct *6 going ramp tors are not to be of ed in compliance aware what this the with the Missou Highway . ri jury Department does with reference to . .’’At specifications and an that the Missouri point interposed this defendant’s counsel Highway Department En grounds the objection gineer supervised on work, that the statement all including the scope the beyond proper of number and argument. location of warning devices on ramp, and objection plaintiff’s This overruled the and ordered open to defendant ramp yourself counsel continued: “Don’t kid the that before the subcontractors in going guardrails to be aware of they permanent are not what stalled and signs.1 and is your going verdict is what it to mean The cause was submitted jury to the on You to to other road contractors. have the defendant negligently had the if laws on books are determine give adequate failed to warning of the dust are going gather they to or whether dangerous of condition The ramp. evi- enforced. That is are going why to be we dence excluded was directed to construction here.” highway ramp of the in accordance with the A trial court has wide discretion specifications plans and of the Missouri argument in the field of and in the absence Highway Department. State The trial portion reading argument defend- of of the of this Point does not com- 1. The statement 84.04(d), requirements ply on this Point reveals that what Rule ant’s brief with the is, complaint V.A.M.R., briefly it although real is that was that it states defendant’s in setting thereby precluded up concisely ruling from the de- and the action of the opinion erroneous, fully more discussed to be it fails to fense trial court claimed proper. why is claimed to A state erroneous. by the directed signs where warning clear that going court made it it was placed to Highway and the specifications testimony exclude any whereby plans defendant duty thereby met its it had attempt delegate Engineer, would any blame to safety of care for the reasonable party third High- Missouri exercise State —here ramp. using highway public Department. general way err court did not that the findWe primary duty The to exercise rea excluding this evidence.. safety general sonable care for the of the each of defendant’s Having disposed public using a road or highway during im error, we no trial court finding Points provements repair rests or on the road con affirm. tractor, and the road this re contractor in is af- trial court spect The reasonably must act and with due regard to rights of persons lawfully firmed.
using way and is liable for resulting negligence from perform in the SMITH, J., separate C. concurs files ance his work. Joshmer v. Fred Weber concurring opinion. Contractors, (Mo. App.1956). STEWART, J., opinions. concurs both aforesaid, liability, is im SMITH, Judge (concurring). Chief upon the road posed by contractor not vir court, opinion of the fully I concur of his with a public authority, tue contract concurring opinion point include this but upon perform or failure to the work in injustice I a serious what consider out contract, upon accord with a but the tor- practice it now ex- remittitur as Missouri’s duty imposed tious upon breach the con case exemplifies. and which this ists common tractor law. Joshmer v. verdict Plaintiffs received substantial Contractors, supra, 583[8], Fred Weber 1. c. jury. court, The trial in the exer- regard The road contractor’s liability exists discretion, reduced that verdict its cise of requirements less of the of its contract with $28,000 by a total of through remittitur public authorities irrespective exces- upon defendant’s contention of based any part liability governmen new in its motion for trial. Plain- siveness authority employing tal the contractor. accepting were then confronted with tiffs Thus, a contracting road contractor with a delay, undergoing remittitur is not entitled public body to avail itself of *7 uncertainty, strain of another trial. As the latter immunity liability from occurs, they accepted the remittitur. usually resulting from either wilful tort or this appealed, raising then in Defendant negligence performance public of its predominant as its theme the renewed Phegley work. v. Porter-DeWitt Construc hav- exeessiveness. Plaintiffs contention (Mo. Company, tion accepted unable to ing the remittitur were App.1973). exces- the trial court’s decision on appeal evidence excluded here was siveness, nor are we asked to determine respect not with to defendant’s efforts to made. correctly that decision whether safe. ramp make What was excluded short, has the defendant benefit In was evidence which defendant hoped would remittitur, opportunity reduce shift from its shoulders to the Missouri more, delay payment even Department Highway non-delegable a State and no risks or adverse con- judgment, duty theory on long so as con taking an Plain- appeal. from sequences ramp structed plans accord with the hand, gained little tiffs, have other specifications Department, remittitur, nothing accepting the acceptance which may well have been based
upon a desire to receive the judgment
expeditiously.
I entertain serious doubt that
remittitur entered the trial court was
warranted, at least in part possibly going If are
toto. we to continue permit courts to
appellate requests entertain remittitur
additional then we place should gamble for such appeals equally on the
parties. Where a sought defendant has court,
received remittitur from the trial accepted by has been plaintiff, acceptance preclude
such should not an ap examining court from
pellate the propriety the remittitur where the defendant appeals.
thereafter When the defendant place
elects before this court the amount damages by asking for additional
remittitur, we should not limited to de
ciding whether the action of the trial court inadequate but should decide also it was excessive. Whether under present law we rules could so de I do not reach request
cide for no for such
decision has been made. BRAKE, Plaintiff-Appellant,
Nancy A. COMPANY, a
MFA MUTUAL INSURANCE Defendant-Respondent. corporation,
No. 35893. Appeals,
Missouri Court of District, St. Louis
Division Four. *8 25, 1975.
Feb. Rehearing
Motion for Denied. or Transfer April 14,
Application to Transfer Denied
May 12, 1975.