164 S.W.2d 458 | Mo. | 1942
This appeal by the defendant life insurance company is from an order of the Jackson County circuit court sustaining the plaintiff-respondents' motion for new trial in a suit for $33,922.68 compensatory damages and $10,000 exemplary damages for wrongful conversion of personal property. Under a mandatory instruction for respondents, eleven of the jury returned a verdict for one cent compensatory damages at the December term, 1939. Respondents' motion for new trial contained twenty-one assignments. At the March term, 1940, the court sustained the motion over appellant's exceptions without stating its reasons, in violation of Sec. 1169, R.S. 1939, sec. 1003, Mo. Stat. Ann., p. 1269. Of the twenty-one assignments in the motion seven complained that the verdict was against the weight of the evidence, or was inadequate; and one asserted there was no evidence to support the verdict. The other assignments were directed to other matters.
The points urged for reversal on this appeal are: (1) the motion was so defective in form that it failed to preserve anything for review; (2) the seven grounds questioning theweight of the evidence were inconsistent with the ground charging there was no substantial evidence, in which situation the latter "erased" or superseded that former, and became the only ground challenging the sufficiency of the evidence; (3) if the motion was sustained on that ground it was error because there was substantial evidence supporting the one cent verdict; (4) since the term at which the case was tried had lapsed when the motion was sustained, the court had no power to grant a new trial of its own motion (if it did) on the erased weight of evidence assignments; (5) the court erred in sustaining the motion without specifying its reasons, as required by Sec. 1003, supra. Notwithstanding this last assignment, but in obedience to our decisions, appellant further assumes the burden of showing there was no merit in any of the other grounds set up in the motion, which were concerned with the admission and exclusion of evidence, the giving of instructions and improper argument.
The motion for new trial was as follows: "Now on this 13th day of December, 1939, within four days from the return of the verdict *80 of the jury in this case, come plaintiffs and file their motion for new trial because of certain errors committed by the Court and jury in said trial, as hereinafter set out, to wit: (then follow the 21 grounds). Wherefore on the matters herein, the plaintiffs pray the judgment of the court."
[1] On its first assignment, that the motion was fatally defective in form, appellant argues it was merely a suggestion[460] of errors, because it did not ask that the verdict be set aside and for a new trial. The brief cites Sec. 964, R.S. 1939, sec. 812, Mo. Stat. Ann., p. 1062, which requires that "all motions shall be accompanied by a written specification of the reasons upon which they are founded;" also Sec. 1238, R.S. 1939, sec. 1072, Mo. Stat. Ann., p. 1373, which defines a motion as "an application for an order." It is this latter ingredient which appellant says is missing.
We are referred also to Melenson v. Howell,
Respondents dismiss these criticisms as hypercritical and point to cases holding that if the document filed as a motion for new trial was so treated by the trial court, it will be accepted as such on appeal. Gray v. Nations,
[2] On the second point — that the seven weight of evidence assignments were nullified by the no evidence assignment — appellant cites *81
several cases holding an allegation is self-destructive which charges the act of a defendant was both negligent and willful, or that he was a nonresident and had absented or concealed himself from his usual place of abode in this state. But the decisions stressed are Crawford v. K.C. Stockyards Co.,
In the Gates case the motion for new trial assigned error: in the refusal of peremptory instructions at the close of plaintiff's case and the whole case; and because the verdict was against the weight of the evidence. The court sustained the motion on the ground that "under all the evidence the plaintiff is not entitled to recover." The opinion held this meant there was no evidence to support the verdict and a demurrer thereto should have been sustained. Then the opinion quotes approvingly part of the Crawford case which points out that if the order of the trial court specifies the verdict was against the weight of the evidence appellate courts will seldom interfere, but if the reason given be that the verdict was unsupported by substantial evidence the higher courts will [461] exercise more firmness — for which reason it is highly important that the trial court clearly show the theory on which it acted.
All these decisions support appellant's contention that there is a marked difference between an assignment charging the verdict was against the weight of the evidence, and one averring there was no evidence to support it. But this is to be noted — in the cases cited the ambiguous or contradictory reasons appeared in the court order sustaining the motion for new trial. Inconsistency there is a different thing from inconsistency in the assignments of a motion for new trial, filed by the party who lost the verdict and thereby was put on the defensive. Why should the movant be denied the right to assert there was no substantial evidence to support the verdict; but if he be *82 wrong in that at least it is true that the weight of evidence was the other way? It has been done every day throughout our procedural history. If the verdict should be set aside for any reason assigned, it ought to be done. The purpose of the motion is to direct the trial court's attention to all errors not waived. But the court is in a different position: it has the power of decision and must determine which assignments are good and reject the others.
This is as far as we need go on that point in this case. If the court in sustaining the motion had given the inconsistent reasons that the verdict was unsupported by substantial evidence and was against the weight of the evidence, we would have to decide whether the former erased the latter, as some of the former cases have done. But since the court assigned no reason, it is unnecessary here. We do hold, however, that appellant is wrong in arguing the seven weight of evidence assignments in respondents'motion for new trial were swallowed up by the no evidence assignment. For the reasons stated in the last paragraph they were all carried over in the motion when the cause was continued to the March term, 1940, and were before the court when it sustained the motion. This also disposes of appellant's contention that the trial court lacked jurisdiction at that term to sustain the weight of evidence assignments on its own motion. It did not have to act on its own motion since the whole motion for new trial was before it.
[3] We agree with appellant that the trial court erred in failing to state its reasons for sustaining the motion for new trial. Whether the error is reversible, we shall discuss later. Sec. 1169, R.S. 1939, sec. 1003, Mo. Stat. Ann., p. 1269, reads as follows:
"Only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior;and every order allowing a new trial shall specify of record theground or grounds on which said new trial is granted."
The italicized concluding clause was added by Laws Mo. 1887, p. 230. As stated in Iron Mountain Bank v. Armstrong,
First Natl. Bank v. Wood,
Ever since, with one exception presently to be noted, the decisions of this court and the Courts of Appeals have held such shotgun orders valid, in the teeth of the statute. Two cases baldly ruled that in such circumstances the order would be adjudicated under the practice prevailing before the statute was amended, thus disregarding it altogether.1 Several have held that where the order granting a new trial assigns no reasons, it will be regarded as upholding all the grounds presented in the motion;2 and others that such orders will not be disturbed on appeal "if, on any of the grounds set forth in the motion *84 it ought to have been sustained."3 In the first of these that practice was followed although the respondent had pointed out the ground on which he thought the trial court based its ruling, and this court deemed it insufficient.
There are still other decisions declaring that if there be an assignment in the motion that the verdict was against the weight of the evidence, the appellate court will presume it was sustained on that ground, unless the evidence be such that noverdict in favor of the movant would ever be allowed to stand.4 In other words, in such instances if there be substantial conflicting evidence, the appellate court need not look first for assignments in the motion for new trial thatought to have been sustained; but by presumption may sustain it on a weight of evidence assignment, which is seemingly contrary to the actual weight of the evidence, Winkler v. Kurn (St. L. Ct. App.), 118 S.W.2d 1065, 1067; and which the trial court actually may or may not have sustained in its wide and almost unreviewable discretion. King v. Mann, supra, 315 Mo. l.c. 326, 286 S.W. l.c. 103.
In sustaining a motion for new trial on that presumptive ground, this court in Gray v. City of Hannibal, supra, 29 S.W.2d l.c. 713(10), held such might be done where the record failed to show a previous verdict had been set aside on the same ground. Of course, if the order sustaining the previous motion gave no reasons, the record would not show on what ground it has been sustained (unless by presumption). So we have this situation: if successive motions for new trial, each containing a weight of evidence assignment among others, were sustained by general orders specifying no grounds, an appellate court would presume the second motion was sustained [463] on the weight of evidence assignment although, if an appeal had been or was taken from the first order, the same presumption would be indulged; and the provision of Sec. 1169, supra, which forbids two new trials on that ground, would thereby be violated.
That very predicament confronted this court in King v. Mann, supra, 315 Mo. l.c. 327, 286 S.W. l.c. 104(6). See also same case 199 S.W. 705; 207 S.W. 836;
We said in the fourth preceding paragraph, there had been one exception to the line of decisions just reviewed. That was Stoner v. Royar,
The Stoner case has been cited several times, but always in support of the practice of refusing to reverse the cause for violation of the statute. Thus Cunningham v. Atterbury (K.C. Ct. App.),
We can see no difference in principle between an order granting a new trial which fails to specify any reason for the ruling, in violation of the statute, and an order which fails to state a good one. As said in the Maplegreen case, supra, 237 Mo. l.c. 363, 141 S.W. l.c. 624, "To speak insufficiently is the same as to [464] say nothing." (Idem est nihil dicere etinsufficienter dicere.) And it has been the law of this state, at least since the decision of Millar v. Madison Car Co.,
[4] So far we uphold appellant's contention. But we cannot rule the trial court's failure to state its reasons for sustaining the motion for new trial was reversible error in this instance. For, on the theory stated in the last paragraph, respondents have assumed the burden of pointing out assignments in the motion which should have been sustained, and we think they have done so. We refer to the assignments that the verdict was inadequate. These go to the weight of the evidence, Stegner v. M.-K.-T. Ry. Co.,
It is true there are numerous decisions in this state saying it is the exclusive province of the trial court to determine the weight of the evidence in passing on motions for new trial in law cases; and that appellate courts are not authorized to do it, or are powerless to do it.1 But such decisions mean only that appellate courts will not interfere with the trial court's ruling unless it has arbitrarily or abusively exercised its discretion.2 The reason is that the trial court has a better opportunity to sense the trial atmosphere, confront the witnesses and consider unrecordable evidences of what the truth more probably is — things which appellate courts usually cannot glean from the cold record. Castorina v. Herrmann,
The constitutional right of trial by jury is not invaded by the granting of a new trial,4 whether on the weight of the evidence or other ground. The statutes [465] authorizing the granting of a new trial, on that ground among others, do not confine the power to trial courts. We so held of Sec. 4124, R.S. 1939, Mo. R.S.A., sec. 4124, in the criminal code, in State v. Gregory,
In all these situations, and generally, it has long been the rule in this state that appellate courts can award a new trial in law cases on a weight of evidence ground, even when the trial court has refused it.5 And since they may thus reverse the action below, undoubtedly they can on the same ground affirm it. We must, therefore, overrule appellant's contention that appellate courts lack the power to weigh evidence in reviewing the ruling nisi on a motion for new trial, except in equity cases. But in this connection we should add that nothing said in this opinion is to be understood as advocating a departure from the wise policy followed heretofore when the trial court has denied a new trial or specifically granted one on a discretionary ground. Its action there will not be reversed unless it clearly has abused or arbitrarily exercised its discretion.
We are concerned here solely with cases in which the lower court has awarded a new trial without specifying its reasons, and the respondent seeks an affirmance of that general order by urging that a weight of evidence assignment in the motion was well founded, and may and should have been sustained of record. We hold that appellate practice is allowable. It is our further view that on appeal in such instances less deference should be accorded the trial court's general order than if it had specified the grounds of the ruling — because the order fails affirmatively to show that the court availed itself of its better opportunities for weighing the evidence. But since the motion was sustained onsome unspecified ground, and the relief sought runs with instead of against the result below, we think the appellate court may take the general order into consideration as a circumstance indicating the verdict was against the weight of the evidence and that the trial court so found, when the question is close and no other sustainable grounds are pointed out. At least it *89 would show there was nothing to the contrary in the trial atmosphere, which is the main deterrent when we are asked to reverse the order below. But nevertheless the burden will rest on the respondent to sustain his contention on the face of the whole record.
This seems to us the best solution of a vexatious problem, although it may impose more work on our appellate courts. If we adhere to the present practice, and presume the motion was sustained on a weight of evidence ground, although the trial court did not so declare as the statute requires, and the ruling is contrary to our own convictions from the face of the record, the adversary litigant is, in practical effect, deprived of the right to have that question passed upon. If mandamus is sought to compel the trial judge to specify his reasons for sustaining the motion, it means another lawsuit and the appeal is impeded. If the cause is reversed and remanded because of his disobedience of the statute, the movant is prejudiced. The first opinion was filed in this case in Division 2 over a year ago. It was transferred to the court [466] en banc and reargued. Nine written arguments have been filed or tendered for filing by the appellant in the form of briefs, motions for rehearing or suggestions. After giving them every consideration we remain of the view stated in the first opinion.
[5] Appellant asks us to pass on another procedural question. The trial court gave a peremptory instruction for plaintiffs (respondents) and appellant does not complain of that. But at appellant's request it also gave an instruction F on nominal damages without exception by respondents. Appellant cites Green v. Term. Rd. Assn.,
We do not agree. The complaint in the Green case was that an unchallenged instruction conflicted with two given for plaintiff (on the humanitarian doctrine, as the original record here shows). Further, it is not true that because the court gives an instruction on an issue without exceptions saved, the other party is thereafter precluded from contending a verdict returned thereunder was against the weight of the evidence. The court is warranted in giving an instruction if there is any substantial
evidence to support it. Flournoy v. Andrews,
[6] Considering now the evidence. There was considerable evidence for appellants, part of it coming from reputable physicians and dentists, that the machines were impractical, unperfected, outmoded, chemicals caked on the inside emitted a bad smell, rubber fittings had deteriorated, they did not use the proper anaesthetic; and would not sell to the dental profession, all efforts to get them on the market having failed and inflicted financial loss on the promoters. On the other hand respondents introduced evidence that the cost of the material in the machines exceeded $16,000, and that a like sum should be added for labor in manufacturing them and for overhead expenses. They were built in 1931-2. Respondents attributed sales resistance to the hard times between 1931 and 1935. Thirty-five machines were sold for $2400, which was an average of about $68.00 each. The Model D machine was designated to sell for $150. Some were offered for $75. Four rural practitioners, all but one from Harrison County, testified they had purchased and were using the machines and found them satisfactory. They paid from $110 to $150 for them, one doctor being charged $60 in a trade-in. In an execution sale against a former owner the whole lot of machines sold for $350.00. The storage on them was $10 per month for two and a half years, but respondents were unable to pay it part of the time — at least respondent King so testified. Witness Murray for appellant said respondent Smith refused to pay any more rent; that respondent King wasn't in a position to pay it; and that King said he would try to get some money he had coming from mining properties. Six trucks were used by appellant to haul the machines away in 340 boxes, at a cost of $36, when they were sold in the attachment suit.
We think the foregoing evidence shows the verdict of one cent damages was inadequate. Appellant says the case was not tried on the theory of the junk value of the machines. Yet the value of the material, labor, former sales prices, storage, haulage and other like items are all in the record on the question of value. Certainly a verdict of one cent was inadequate under these facts, ignoring altogether respondents' evidence on the value of the machines as finished products at the time they were converted by appellant as the property of a third party in December, 1937,[467] through an attachment suit in justice court under which they were sold the next month and bid in by appellant for $40 without plaintiff's knowledge or presence at the sale. *91
[7] There is an apparent suggestion in appellant's brief that it had minimized respondents' damages by tendering the machines back. It says: "Moreover, the property still is on hand and a continuing tender has been made to (respondents) for its return." But the point is not briefed by either litigant. We think the tender could not operate to justify the verdict. The conversion occurred in December, 1937. Thereafter appellant offered to return the property upon payment of $500 as reimbursement for its time and expenses. Respondents rejected that offer and brought this suit in June, 1938. The tender was made 17 months later in appellant's amended answer, which offered forthwith and thenceforward to return the property and deliver it into court, without expense to them; but it was not done. The measure of damages was the value of the property. The conversion had become complete and punitive damages were claimed. As we understood the law, this showing was insufficient to reduce the respondents' claim to nominal damages even though no punitive damages were awarded. 65 C.J., sec. 111, p. 68, sec. 258, p. 144, sec. 270, p. 146. If the appellant had promptly tendered the property back when it learned of its mistake as to respondents' ownership, our conclusion would be different. But instead, it first demanded $500, and then did not make the tender until 23 months after the conversion and 17 months after this suit was brought.
For the reasons stated, the order of the circuit court sustaining respondents' motion for new trial is affirmed.
Div. 2 opn. adopted October 25, 1941; all concur.
Div. 2 opn. adopted en banc June 13, 1942; all concur except Gantt, J., absent.
August 12, 1942, opinion modified on court's own motion; all concur except Gantt, J., absent.
September 8, 1942, opinion modified on court's own motion; all concur except Gantt, J., absent.