*1 MEANS, Respondent, Robert
SEARS, COMPANY, ROEBUCK AND Appellant.
corporation,
No. 59571. Missouri,
Supreme Court
En Banc.
May *2 Monson, Anderson, Gilbert, Wol- D.
Joel Louis, Bierman, appel- for fort, & St. Allen lant. Holloran, Holloran, & Sommers P.
James Louis, respondent. for Inc., St. PER CURIAM: J., Simeone, P. written In an District, St. Louis Appeals, Court affirmed $40,000 defendant in against the amount of Although $15.69. floor $65,- (the jury had returned a verdict for available, sample was they requested that 000); but transferred case to this court assemble Sears a bicycle, for which they V, pursuant art. saying, Mo.Const. § cost paid additional This cost $7.00. believe, however, authority “We assembling receipt added to the sales *3 appellate court to review the of amount purchase. at time of the the remittitur, as to the both inadequacy or following evening, The Thursday, Mr. when that issue excessiveness is raised on family and his Means returned to the store by appeal the defendant should be reexam- up” purchase. the “pick to At the time the Supreme the Court. by ined We therefore him, to brought was bicycle Mr. Mеans no- case pur- order this transferred for that rear ticed fender was rubbing “[t]he pose.” We decide the case as though here the wheel.” He against informed a Sears appeal. on direct We affirm. (not Lesan), Mr. employee whereupon the Judge by The (without Simeone got “went and a employee wrench and loos- quotation marks), to including and transfer from the wheel ened back and [the fender] court, to this is as follows: up.” it tightened back Mr. then Means This is an the defendant-appel- the the placed bicycle in trunk of his auto- Sears, lant, and Roebuck for Company, a to parents’ and drove Mrs. mobile Means’ judgment entered circuit court of them, “to show and going home we to were City 1975, of 10, St. Louis on March in evening.” it that “[bjefore ride But we $40,000 the amount favor plain- of the ride it could we found thе was seat loose. tiff-respondent, Means, Robert John tighten to that. We had It wobbling was injuries personal as a sustained result of a That back forth.” evening, both he bicycle a purchased fall from at the defend- Mrs. Means the bicycle. They rode did judgment ant’s store. The of March curbs,” “jump any any large “hit not chuck- reduced the jury -was from type or “have any holes” accident.” Af- $65,000 $25,000. after plaintiff remitted riding cycle evening, it ter was raises several appeal: Sears issues on this placed taken to their home and ga- (1) propriety directing of the verdict afternoon, The next Mrs. rage. Means instruction; (2) insurance; injection did rode, Saturday, but Mr. Means not. On (3) gross excessiveness of the verdict neighbor, Mrs. Means and a James Mr. and (4) the remittitur. For reasons herein- Keating, cycle. occasion, rode the On this stated, wе after affirm the of the “gearshift lever Mr. Means noticed trial court. tight- loose on the stem.” This was was necessary It detail each and occasion, this ened. On none of riders litigation. in this We every fact shall state riding. experienced any difficulty while sufficient and relevant only those facts nec- following points morning, Septem- essary dispose Sunday, of the raised 2, 1973, bicycle appeal. on this Mr. Means took appellant ber up Target going “to ride to the was Store evening Wednesday, August On just lot and big parking then ride to a wife, Carolee, 1973, Means Mr. and his to- top hill When he was of a head- back.” children, their gether with minor went to down, the “front wheels started ing [sic] store in the defendant’s Northwest Plaza sideways vibrating very rapidly back Shopping purpose pur- Center for six so.” approximately inches or He fоrth bicycle a chasing which was to be used stop. “[s]uddenly But tried front They Mrs. mainly purchased Means. a ninety a full degrees. went to the left wheel five-speed, bicycle 27-inch man’s from the thing time the next I knew I was At that goods sporting department salesman road on skidding along my stomach.” Lesan. The cost bicy- —Mr. Robert of the They purchased during also All time handlebars were cle was $79.50. straight “child carrier” to be attached the rear of and “didn’t perfectly vibrate at knee, bleeding, up, He stood his knee was so he had only all.” 10 degrees of active leg. he flexed his “I could feel some- flexion.” another operation So was decided ” there, but it still moved. . thing upon. operation This pulled the “knee on to the bicycle back found sides of the He walked both stuck-down tendon and just was “somewhat bent.” front wheel free it uр from the underlying to] [was bike, near the car standing pulled femur ..” This operation While second couple They 18,1974 in it. asked if he performed March up with (although They they could take Powell stated he asked Dr. were hurt. admitted in Feb- hospital 1974), lysis ruary, house. Means quadriceps Mr. then hid the tendon. He remained in hospital Means Mr. after operation weeds, as he walked “I couldn’t move this second for a period of two any knee more and I kind of fell weeks or until March my left 1974. He conva- couple enough period was kind lesced for a of two more down.” weeks. *4 Hospi- the Christian Northwest him to take Following his discharge, Mr. Means par- tal, placed he was under the care of where in a ticipated physical therapy program Powell, orthopedic surgeon. Dr. Charles three times a week until 1,1974. about June which showed a com- an examination After As a result of the second operation and the patella, of the left fracture Mr. minuted physical therapy, Mr. Means was able to surgery taken to was and a total Means knee approximately flex his degrees, and performed. was Dr. Powell patellectomy was able to return to his normal work. fragments all the of the fractured removed Although he is able to knee, flex his there is sutured the quadriceps muscle patella still 35% to 40% loss of “approxi- flexion — patellar ligament. to the Mr. Means tendon mately 40 percent range of normal motion.” hospital in a cast. The placed called was This condition considered physi- Means, and she and James Keating Mrs. permanent. cian as hospital. at Mr. Means in- arrived Keating Mr. of the wherеabouts of formed Dr. Powell stated opinion his that “I don’t later bicycle, Keating picked Mr. it think that he will regain ever any signifi- it in Mr. placed garage. Means’ up and Mr. improvement cant in knee flexion.” De- spent a week in the hospital Means and two condition, spite his Mr. Means returned to at home recuperating, weeks before re- regular job his activities by the time of trial turning to work on crutches. Because he January, But his condition caused “get field,” unable to around in Mr. problems. him several He longer can no supervisor “gave Means’ him some office In his duties he “squat.” “lay has to down” (cid:127) work,” during the time he was in the cast. get something under “going up and the cast was When taken off about six steps quite down difficult.” He cannot later, he weeks couldn’t move leg— his leg as to, bend his much as he used leg muscles were —I don’t know what “[t]he day there has never been a when he has not it, call were you they jelly like ..” difficulty” had “some with leg. his He can longer part no take in “playing softball” or By January, Mr. Means could not like I used to” or “sit “run in the front seat inch, left knee his more than an bend but any more of the canoe .” regular resume his duties in February. did December, Dr. Powell saw him When Mr. Means was absent from his employ- 1973, some four months operation, after the ment a total of seven weeks and ap- lost only degrees he “showed about 10 of active proximately per $100.00 month overtime knee flexion and at this time it was appar- compensation, and because of his morning quadriceps ent that tendon was bound therapy he missed other work time. underlying to the femur down and was this, result of all he As a incurred medical sticking prohibited there which thе tendon hospital expenses of approximately he moving attempted when to flex the $2,600.00, [loading] and loss of it with a wages weight.” known overtime of He $2,100.00.1 approximately applied gradually increasing weights until respect handlebars turned with to the unfortunate After the accident on Sep- pounds weight wheel. Six turned the tember eventually bars, equivalent to “seventy-eight inch custody transferred Professor torque.” pound of were tests to deter- Diboll, Wallace Associate Professor of Me- rigid mine “how the connection was be- Engineering Washington chanical at Uni- wheel tween the and the handlebar.” A who, at the versity,2 request of Mr. Means’ performed test was similar Professor attorneys, performed tests. several bicycle, own which “took” Diboll’s 588 inch professor that he stated had testified in torque. pound opinion, “a handle- engineer- before mechanical bar, fork gooseneck, connection should ing “basically making involves of energy withstand at least thousand inch pound making of things, equipment, and the ma- torque] properly assembled.” In an- [of particular chinery. My area is the area of hypothetical question, swer to a it was the that, machinery, study and the vibra- professor’s that there was a “defec- stresses, tions, forces involved in machin- assembly connection or tive between the stated, ery.” As Professor Diboll examined fork,” gooseneck “during and that bicycle. He found the wheel distorted. assembly, the goes nut which up into in some He also testified detail concerning gooseneck, sufficiently had not been assembly the handlebars and tube of *5 tightened.” the fork. In order to make the wheel turn person so a with the handlebars can During the direct examination of Profes- through of the have control wheel the han- Diboll, sor plaintiff’s trial counsel inquired dlebars, sliding nut must turned and bicycle whether the point at some left his “tightened correctly, fully, sufficiently” so possession. The professor answered, “Yes,” “rigid piece, it is one so that when you after he had run “all the studies.” The the . . turn handlebar . the wheels following then occurred: will also turn ..” Professor Diboll on performed cycle tests to determine “Q plaintiff’s [by What counsel] did rigidity of between connection you do with the bike? handlebars and wheel. was This accom- plished A I by putting bicycle a table took bike to St. Louis Test— holding the “wheel tightly Testing and then St. Louis Laboratory. Keating picked up the time damages: James Special bicycle placed in the weeds it garage in thе Means’ trial, of the time of number individuals Emergency and First Admission bicycle. First, handled (Mr. a law student 400.00 Operation $ Borgmann) working family for Mr. Means’ at- 1973) (Sept., Bill Hospital 796.70 torney (Mr. Spilker) picked up bicycle 1974) from (March, 1,046.75 Bill Hospital garage Following and delivered it home of the Treatment Operations 40.00 family attorney Spilker. 327.00 Then the case Therapy —Mr. $2,610.45 attorneys, referred Mr. Means’ trial partner (Mr. Sommers) counsel Dr. Testimony Powell's as to Bills: picked up bicycle, 1st 300.00 operation and the “child carrier” $ 150.00 2nd operation attorney removed. referred delivered 450.00 $ it to the home of Professor Diboll. At SALARY each of these individuals was called as a wit- salary month per ness, $925 and each witness testified that the month overtime per $100 introduced in evidence they was the same one addition, work 1,618.00 7 weeks off handled. each witness testified 500.00 or 5 months lost overtime adjustments that no had been made while it $2,118.00 respective was in their controls. much was made the chain 2. At the trial bicycle. custody interim In the between cast, Why you permanency inju- did do that? time in a
*6 Q flexion, degree surgical and the ry, the request at a of one member A It was fees. office who said that the defense your bike examined. wanted At the close of the plaintiff’s case, coun- object I would counsel]: [Defense sel for defendant moved to amend its an- hearsay. swer interlineation to allow the affirma- Objection THE COURT: sustained. tive defenses of’ contributory negligence Q (By [plaintiff’s counsel]) Where contributory fault. granted. This was it? take you did A I took it to St. Louis—let me check The court instructed the jury gave, receipt sure. I have a for it. to make St. instructions, other among Instructiоn No. Laboratories, Testing Incorporated. Louis plaintiff’s director.3 After ar- guments, the returned its verdict in they gave Q gave it to them and You plaintiff-Mr. Means, favor of the it? receipt you $65,000, judgment amount of was en- right. A That accordingly. tered Q you again seen the bike Have until yesterday here in court? you saw it February On the trial court or- plaintiff will, dered within 10 “[i]f might A I have not. I add that on days, $25,000 remit the sum of from verdict receipt there is an account Aetna . defendant’s motion for new trial Casualty Surety— will be overruled ..” object I to that. I [Defense counsel]: move the Court— did voluntarily remit that THE Objection COURT: sustained. amount, and the court entered a Don’t volunteer anything you until are from which this is taken. examined. I will sustain the objection and order it stricken from the record. [*] [*] It contends Sears raises four points trial court erred appeаl. (1) 2, (2) Instruction giving No. in failing to attorneys approached bench, The then the motion for mistrial sustain because of mistrial, counsel and defense asked for a injection Diboll’s Professor insurance statement, of the volunteered “because examination, his direct during because of Casualty being Surety, given by Aetna “highly prejudicial effect” on plaintiff for the ..” witness It is “grossly returned a which excessive” ver- just from the record what Aetna unclear dict; receiving (3) in the verdict because Casualty had to do with the cause—no voir “grossly was the verdict excessive” in that asked, question any was event dire but expenses had sustained plaintiff court overruled the the trial motion. $2,610.45 amount of and is presently em- by During video-tape ployed employer Dr. Powell’s the same in the same capacity (4) shown in which the depositiоn overruling was doctor the motion injuries, length as to the for new because the testified verdict was exces- Third, plaintiff 2: bicycle NO. INSTRUCTION when used the it substantially was in the same condition as you be for must if "Your defendant, when sold believe: Fourth, plaintiff used the in a man- bicycle, First, sold the reasonably anticipated damaged ner and was sold, Second, bicycle, defective as was bicycle being result of the as direct defec- put dangerous use when to a and therefore Modified, tive. MAI 25.04 Offered Plain- anticipated, reasonably tiff.” tively prejudicial remittitur of error. not cured Murphy Land, sive v. 505, 420 S.W.2d (Mo. $25,000. 1967); Brown v. St. Louis Public Service Company, 421 course, coun- plaintiff-respondent, The (Mo.banc 1967); State ex and insists the contentions each of ters rel. Highway State Commission v. Beaty, be reinstated verdict should original 505 S.W.2d 154 (Mo.App. 1974). In an award “additional that we should Brown v. St. Louis Public Service Company, is friv- damages because sum” supra, 421 S.W.2d at it is said: olous. “. there is deviation where from appellant’s The attack on Instruction No. MAI applicable instruction which does is a broad one. It contends that the court not need modification under the facts in giving erred in MAI 25.04 case, modified prejudicial because particular error will it is not an law, accurate statement of the is unless it presumed is made perfectly supported by evidence, credible proponent fails to clear instruction hypothesize facts, sufficient could evidentiary prejudice that no have is resulted (Emphasis added.) broader than the from such deviation.” pleadings evidence, is general, too and is misleading and confus- Yet, approved where no instruction appli ing. This broadside attack on the instruc- approved that modification of the cable so tion is not warranted. required, there instruction is no error. Assoc, Reed Schmidt Carafiol Furni instruction is 25.04,4 based on MAI Co., 469 S.W.2d (Mo.App. ture the verdict director in products liability 1971). against case the manufacturer. MAI 25.04 only modified insofar as was necessary Dayton In Keener v. Electric Manufac to accommodate theory of this case —a Company, 445 turing (Mo. 1969), S.W.2d 362 products liability case against the retailer. Supreme Court adopted the rule of MAI does not contain a similar instruction liability Restatement, strict as stated in 2 against a retailer. Specifically, MAI 25.04 Torts, Second, (1965). Law of 402A § was modified to substitute the word “sold” cause of action was against asserted for the “manufactured,” word and the word distributor. wholesale course of the “used” in paragraph third instead of the opinion, the court stated that if the evi word “bought.” it, re-trial, supports dence an instruction substantially
It that a deviation the form is true of course used in this case presump- error, from it is be used.5 The only MAI is not should instruction here was 4. MAI 25.04: Your you verdict must be for be- *7 lieve: plaintiff you “Your verdict must be First, plaintiff (here statutory was insert believe: qualification required bring wrongful First, (describe defendant manufactured action), death and article), and Second, sump pump, Second, sold the (describe article), and as manufac- Third, sump pump, by defendant, tured, as sold dangerous and was defective therefore dangerous and put reasonably anticipated, was defective therefore when when to a use put reasonably anticipated, to a use and and Fourth, Third, (desсribe sump plaintiff bought when Harold Keener used the when pump substantially article) substantially it was in it was in the same the same condi- con- defendant, manufactured, tion as when sold dition as when Fifth, Fourth, (describe article) sump pump Harold Keener used the in used the in reasonably and, anticipated reasonably anticipated a manner a manner was as a damaged (describe sump pump being as a direct result of the direct result defec- article) being tive, defective.” died. you believe [unless is not entitled to re-trial, supports “If the it on 5. evidence No.-(here recover reason of Instruction substantially following instruction form insert number of affirmative defense instruc- used: should be
787 suggested in the Keener “. . . to the one erroneously similar and falsely in- stated the law. case passions jurors flamed the prejudice bias and created in their minds Although point, not its Sears causing gross- . them to return a argues argument portion of brief its ly excessive . jury misled the because that the instruction universal negate mishandling of the The almost hatred harbored any it failed in-laws, Means, wife, general public Mr. “his his by the insurance com- neighbor Appellant’s after it left his should not be against held panies, Appel- glean from this that control.” We Sears lant.” error in the trial court’s failure
claims
long
It has
been the law of this state
“tail” on the verdict director re
include a
injection
improper
jury
that
tried
contributory
ferring
plaintiff’s
fault.6
the defendant
case
covered
However,
any
instruction on
affirmative
no
liability
error,
insurance constitutes
espe
Consequent
given
or offered.
defense
so if thrown in
cially
purposefully or in bad
Lawley
did not err.
v.
the trial court
ly,
Williams,
Gray
463,
v.
289
faith.
S.W.2d
829,
(Mo.App.
835
City, 516 S.W.2d
Kansas
1956).
(Mo.App.
467
Brown,
253,
v.
491
1974); Strickner
S.W.2d
that,
say
“.
.
it to
Suffice
no mat-
Harris,
1973);
(Mo.
Shepard v.
329
254-255
party
.,
which
the offender
ter
1959).
(Mo.banc
7
5.W.2d
practice
condemned
injecting
lia-
point against appellant.
rule the first
We
bility
coverage
insurance
into
trials
Next,
contends that
appellant-Sears
just
pernicious
as
reprehensible
during
“insurance”
the direct
injection of
it was
today
fifty years ago, for,
as
of Professor Diboll constituted
examination
‘
said, “(w)e
Mark Twain once
are all full
and that its motion for mistrial should
error
’
human nature”
..”
Hildreth
granted.
argues that the
have been
Sears
341
Key,
(Mo.App.
v.
S.W.2d
615
cases,
had testified in other
his
professor
1960).
plaintiff’s
was known to
experience
and every
But not each
reference
in-
it is
attorney,
“very likely”
counsel
constitutes
surance
reversible error.7 In
professor prior
interviewed
Williams, supra,
Gray v.
court did not
injection
“perni-
insurance—this
interfere with the action of the
reprehensible” practice
worse
trial court.
cious
—is
insurance is
single
concerning
in fact no
involved. A
statement
when
insurance
injection
that this
argues
under the circumstances did
justify
Sears
tion)].
verdict-directing
Williams,
Gray
instructions MAI
supra,
Cf.
7.
v.
holding judge trial should have indicate and prejudice bias is one in which drastic taken more action. the jury guilty of misconduct by fixing figure an excessive as a result of bias and the principle It is basic that when engendered prejudice during the course of is to rule judge upon the trial called on the the trial. Such misbehavior vitiates the must to question, much be left his sound verdict, not only entire the as to amount of discretion, only where there is a mani award, the but also as to the determination we fest abuse should interfere. The trial liability, and cannot properly be cured by advantageous is most position court remittitur, requires but that the verdict in injected whether the to determine issue into set entirety its be aside. Brown, Skadal v. done good the case was in оr bad faith. 684, (Mo. 1961). 351 S.W.2d 690 the The action of trial court will not be mere size of the verdict does lightly disturbed. Where the answer to a itself not in and of establish it was the question voluntary unresponsive, is passion prejudice result of bias with in refusing there is no automatic error to showing out some other error committed jury. discharge Butcher, the Paulsen v. during Atchison, the trial. Slater v. T. & S. at Here supra, 492 the trial S.W.2d 824, Ry., Mo.App. F. 224 660, 24 S.W.2d 666 objection, the requested court sustained the (1930); Brown, v. supra, Skadal 351 S.W.2d it, jury disregard the admonished witness 690; at Friend v. International, Gem Inc., reference and no further was made to the 476 1971). S.W.2d 140 (Mo.App. issue, declining the court to further instruct disregard jury the comment. Appellant injec contends tion of the false issue of insurance so biased not a situation This is where one jurors minds of that the verdict was another individual sues and insurance is and, “grossly henсe, excessive” the verdict we injected. While cannot condone the ir in must be vitiated its entirety. But we insurance, injection yet relevant under conclude otherwise. The trial court had the here the circumstances where opportunity effect, to observe the if any, of large company, we say is a cannot incident, and took appropriate action. court, was in most trial who advanta say that We cannot the trial court abused geous position situation, assess the its discretion. Neither can we say that refusing in abused its discretion to declare a singular, Professor Diboll’s unresponsive mistrial. statement Professor Di- reference, in context case, entire unresponsive, in boll was a sense an “falsely so inflamed the passions of the afterthought previous question con jurors рrejudice and created bias and he cerning bicycle. what did with the their minds” render the verdict which circumstances, Under we all cannot they did. This contention overruled. trial say that court’s refusal to dis- also Appellant contended in the trial prejudicial charge jury constituted er- court that the verdict is “excessive”. The ror. ‘“ * * * attack basis of this is that Next, appellant contends that the jury made an honest mistake weighing receiving erred verdict of as to the evidence nature and extent of $65,000for the reason that the verdict was injury fixing damage and award grossly and the excessive result bias disproportionate ed a sum amounts such prejudice. If a contention is found to usually injuries awarded for comparable un meritorious, then the verdict cannot der the rule of uniformity. Such mistake amount any stand in and а new trial can be cured and corrected without a new Worley Nevils, required. Inc., Tucker by requiring remittitur of a portion (Mo.banc 1973); Mar S.W.2d amount awarded’ Worley ”. v. Tuck Co., Inc., Gas Appliance Nevils, shall v. Ozark & supra, er at S.W.2d 1974). (Mo.App. Brown, A verdict quoting from Skadal v. supra, 351 “grossly which is so so excessive” as to S.W.2d at 689-690.
789 court concluded that the verdict keeps The trial and defendant that issue alive trial on excessive ordered a new seeking further remittitur appeal, on $25,000, unless remitted that basis of what remittitur, issue any, whole is did. appeal On which open should required consideration $40,000 resulting judg- that contends court. appellate permit That would excessive seeks further is still ment court to appellate approve the remitti- remittitur. by the trial court or order fur- tur ordered part remittitur direct that or all of ther thаt re- appeals of addressed The court directed by remittitur the trial court be and, after consideration of the nature quest received, restored. ex- injuries of the extent incurred, plaintiff, age of penses Accordingly, we have reviewed the earning capacity, on his the economic effect jury whether the of issue verdict was “ex cases, held the result in other scene8 foregoing on the cessive” basis. We con should not be re- further remittitur that clude, as did the court appeals, that However, appeals de- the court quired. is remittitur not required. further We also respondent’s consider contention clined to and hold that conclude the trial court did court have re- the trial should not that ordering $25,000 not err in remittitur of remittitur that quired to not granting a condition a new trial. as $65,000 reinstated. should bе ordered Finally, plaintiff requests this court to was based on the conclusion action That damages, additional pursuant award to court, including under decisions of this grounds on appeal Rule 84.199 that this Reach, (Mo. 1972) 476 v. 570 Webb S.W.2d is “frivolous and pursued by appel- Sears R.R., v. Missouri-Kansas-Texas and Carver purpose the sole delaying lant for (1952), 245 plain- S.W.2d 96 Mo. judgment”. of the payment may who consents a remittitur tiff validity court’s order of the question A appeal” “frivolous is one it. accepting after justiciable no presents question which readily recognizable is so as devoid of merit suggested ap court of As of the the face record that there is little certifying us, this case to we have peals for success. ex rel. prospect State State question whether, re- after reviewed Sheets, Commission v. Highway 483 S.W.2d court, the triаl appellate mittitur (Mo.App. 1972). While we have right have review the should court in the no error trial found court’s action or such to excessive amount of remittitur as we do not judgment, appeal believe that the inadequacy as well as when that issue ness of merit was devoid on the face appeal by request appellant by raised is or that there any record bad faith or ing further remittitur. We have concluded sincerity prompted which lack Sears in Webb the rule and Carver should be bring appeal. Sears, this See McMillin v. permit such review. Fairness modified Co., (Mo. & S.W.2d Roebuck court has ordered a demands. so 1975); Lafayette Fed. & granting App. Sav. L. Ass’n as a condition for not remittitur Koontz, v. Louis Plaintiff of Gr. St. trial. has acceded new 1974). (Mo.App. remedy provided In so 505 and made the directive remittitur. 84.19 is both may reаsonably assume that in Rule drastic and unusual doing, plaintiff controversy accordingly action as and should be reserved for by such verdict has excessiveness of the rare and unusual situations where its alleged those When that not occur say, resolved. does warranted. Suffice it to application been years growth appellate of infla- In recent extreme 9. Rule “If an 84.19: shall deter- country the courts of may has caused tion in mine that an frivolous it award approve larger verdicts than respondent this state past damages to the court shall the use have seldom had to resort to just proper,” deem Nevils, Inc., Worley Tucker of remittiturs. supra, at 503 S.W.2d 423-424. *10 a deny this not such situation. We thus for to rely expectation is him on an that de- damages request for additional plaintiff’s will appeal. fendant not Whеn a defendant alleged this based on frivolous nature of a new files motion for asserting that appeal. is the verdict excessive and that for other a reasons there should be new anor trial
Judgment affirmed. reversal, he outright is not saying expressly implication that if by or the trial court MORGAN, BARDGETT, HENLEY and to be finds verdict excessive and orders DONNELLY, JJ., concur. a new trial that reason unless a remitti- FINCH, J., in separate concurs concur- entered, he forego tur is will all other ring opinion filed. outright grounds for reversal or a new trial SEILER, J., sepa- concurs in result in C. anything nor is there in the action of the opinion rate filed. says implies court which trial that de- expected forego is appeal fendant J., RENDLEN, participating not because judgment if the pay is remittitur made. court when not a member cause practice The remittitur never was intend- submitted. a to serve as complete ed all answer to FINCH, Judge, concurring. objections raised a in a defendant mo- principal opinion. I file I concur for new trial after plaintiff tion has obtain- opinion only because separate Chief a verdict. It was ed intended address separate opinion has filed a Justice Seiler only the assertion the verdict is exces- complete advocates abolition of which he The trial court’s says only sive. order rule, permitting plain- a thereby the Carver plaintiff if makes remittitur the defend- remittitur, tiff, entry of a to seek after motion for new will ant’s trial be overruled reinstated if defendant to have verdict made, if grant but not court will a new sought not appeals, even if defendant has trial on the basis that the verdict was ex- appeаl. ques- remittitur on That additional cessive. not reached in this case be- tion need trial When a court conditions its action on sought additional remitti- cause defendant trial plaintiff a motion for new on whether However, appeal. since the chief tur on portion remits some the amount fixed argument justice has set forth the for com- verdict, jury’s plaintiff has three abolishing the rule in some later pletely First, options. may he decline to make the case, that, give concluded in order to I have and, remittitur after a ordered, new trial is I should set story, the whole forth reasons simply proceed retry Secondly, his case. not be done. should why that and, he can decline make the remittitur justice the chief is after the court orders a on new trial plaintiff that if a theory on the premised excessive, thаt the verdict is the basis he ap- then remittitur and defendant enters a may appeal and test that order. That was not plaintiff permit- is unfair if peals, it the course followed Deaner to take back the remittitur ted to seek Development Agency, v. Bi-State court even if the amount of appellate (Mo. 1972). Plaintiff’s third is not made an issue is to make the alternative remittitur and so, argues, This is he defendant. appealing thereby the trial get overrule de- makes the remittitur on defendant because motion for fendant’s new trial. If the lat- expectation of an that defendant basis followed, ter course secures but will appeal pay will instead not a new trial denial of basis of exces- judgment promptly. any question siveness eliminates toas view, recovery is not foregoing premise the amount unless my dеfend- hope have may appeal Plaintiff seeks additional sound. ant remittitur. pay judgment rather grounds will does eliminate other He no but there is reasonable basis raised defendant. appeal than relief Defendant, remittitur, after in favor of ing acceptance which may statutory right has plaintiff, upon been based a desire well have *11 outright a new trial or an granted not judgment expeditiously. receive the If, example, the trial court. by reversal serious doubt “I entertain that the re- entitled to an claims he is defendant by entered the trial court mittitur because failed to outright plaintiff reversal warranted, part least in and possibly at case, that an submissible or claims make a are to continue going toto. If we to instruction dictates a new erroneous appellate courts to entertain permit re- by are not a re- objections those answered for additional quests remittitur then we by the amount of verdict duction in the gamble place the for such appeals should Defendant entitled to have remittitur. parties. on the Where a equally defend- If, on appeal. reviewed on questions those sought and received a has remittitur ant defendant raises no further appeal, court, which has been the trial ac- from judgment, the the question as to amount of plaintiff, acceptance the by such cepted penalized taking an he not be should preclude appellate not an court should having say: the appeal by appellate examining the the propriety from of re- appealed, we will let you Because where the defendant mittitur thereafter party) to take (a non-appealing attempt When the defendant elects appeals. to inject ap- into the the remittitur back this before court the amount of place the to issue as the amount of the peal the by asking for damages additional remitti- though even such an issue is not recovery, tur, we should not be limited to deciding only appealing To do party. raised the action of whether the trial court was swings to defendant. It this is unfair but should inadequate decide also wheth- question too far. It a of pendulum raises ” * * * excessive. (Empha- it was er practice a de- might deprive such whether supplied.) sis equal protection law. It fendant of of the spoken The unfairness by Judge Smith certainly extraordinary is unusual and most cases in those wherein defendant seeks appellant by saying an to him penalize to remittitur in the appellate additional court. we appeal, permit will the re- you that if apparent the language This is italicized. inject into issue spondent an indicated, reasons appellant For the I do not permit not raised and will favor respondent overruling affirm- non-appealing completely obtain rule of the Car- the issue injected. on so Doing ative relief Webb cases. so in the ver and case us, before where defendant seeks now addi- present supporting In thesis that remittitur, thereby injecting tional an issue unfair, wholly if defendant rule is even amount recovery ap- into as appeal, on seeks no further remittitur justified. be peal, can It would be quotes justice from the chief and would be justified, very unfair de- Judge v. Fred then Smith in Best Chief fendant, to abolish the rule sо completely as Co., 525 Weber Construction S.W.2d plaintiff to raise the permit issue and However, 1975). Judge (Mo.App. 108-109 appellate affirmative relief on obtain an quoted. said more than the sentence Smith appeal by not raised issue defendant Having appealed that defendant observed appellant. remittitur, raising its dominant as after to be continued point that SEILER, Justice, concurring Chief in re- this: excessive, he said “ * * * sult. short, has the defendant $40,000judgment remittitur, agree I should opportunity an benefit of But, more, respectfully submitted, delay affirmed. judgment even to reduce limiting no risks instead modification judgment, payment Bench, (Mo. taking 570 consequences from in Webb S.W.2d adverse rule or hand, Plaintiffs, 1972) the other and Carver v. Missouri-Kansas-Texas appeal. accept- R.R., (1952) Mo. gained nothing little from have defendant, agreе the situation with Judge where the after Finch that remitti- “[t]he obtaining court, practice was a remittitur tur never trial intended serve complete objections answer to all appeal, seeks further remittitur on I would raised defendant in away altogether with rule motion for new per do trial plaintiff has verdict”, after obtained a to seek to have mit not meet unfairness does issue. When a reinstated whenever ap defendant remittitur is ordered, plaintiff conditional regardless whether peals, only has a Hobson’s choice—take that or appeal. further remittitur seeks Other (which in a new acquiesce else is exact- can appeal, wise defendant take his secure ly prayed for) what defendant has or appeal *12 long that knowledge so as he seeks ground on the trial court erred in remittitur on fare appeal, no further he can reducing [(usually quite fruit- have pay no worse than to the judgment less, as the standard of applied review reduced remittitur in trial is question the reviewing court fair, This is not court. because as well looks at the evidence in the light most Milwaukee, v. of expressed City Plesko remittitur, to the favorable which means 210, 130, (1963): 19 “ 120 Wis.2d N.W.2d 135 defendant’s, evidence favorable to not objective . . . The underlying [the plaintiff’s position. See these cases for ex- having of remittitur in of practice lieu a plaintiff ample where refused to remit and delay expense new is to avoid trial] appeal: was unsuccessful on Wilhelm v. new appeal or a trial. situa- of an most Mo., Haemmerle, 609, 262 S.W.2d 612-13 tions, likely party accept it is will (1953); Wicker v. Knox Associates, Glass judgment damages such reduced rathеr 614, Inc., 362 Mo. S.W.2d undergo expense, delay, than and uncer- (1951), Steuernagel v. St. Louis Public of of an or tainty appeal result new trial. Co., 361 Mo. Service 238 S.W.2d Nevertheless, a party pay if found liable to (banc 1951)]. However, when defend- damages appeals resulting appeals after a remittitur, ant conditional party’s accepting re- from other such given is defendant a much more attractive damages, objective neg- has been duced option of whether choice: the remitti- plaintiff undergo atived. When is forced to kept tur issue is to be alive appeal appeal opposing an the action an defendant, entirely up to though even after party, accepted judg- has of the trial action court regard damages, for such ment reduced it seems option in his favor. Nо such is necessary prevent having unfair review the justice done. Either or with with- leading trial court’s determination it, test, out defendant is free to by appeal, damages, especially reduction why other reasons he contends he should accepted only same to avoid the delay has a new such have as failure make ” expense attending an . appeal case, instructions, submissible error in error Judge as put by Smith in his Or concur evidentiary rulings or other trial errors. opinion in Best v. Fred Con ring Weber unjustified option bonus. Co., (Mo. struction 108-09 being the question With squarely present- 1975) App. plaintiff’s from the standpoint: to us as to whether we ed should overrule Plaintiffs, hand, “. on the other cases, rule of the Carver and Webb I gained nothing accept little or from have would, outset, as stated at the away do with remittitur, ing accеptance may which rule completely permit plain- would upon well have been based desire to re the question to raise on appeal tiff the judgment expeditiously.” ceive the verdict whether should be reinstated The unfairness mentioned the Wiscon- appeal whenever takes an Judge depend court and Smith does not remitted, sin plaintiff has after whether de- on whether defendant does or does seek fendant seeks further reduction appellate however, a further reduction in the agree, court. not. I with the principal there way. unfairness is either I While that in this particular case ordering a remittitur not err in did $25,000. Missouri, Respondent,
STATE WELLS, Appellant.
Wesley John
No. KCD28478. Appeals,
Missouri Court *13 City District.
Kansas 28, 1977.
Feb. Transfer Rehearing and/or
Motion for 15, 1977. April
Denied Denied to Transfer
Application 14, 1977.
June Yocum, Defender, J. Asst. Public
Richard Circuit, Joseph, appel- St. 5th Judicial lant. Danforth, Gen., Atty. Nanette
John C. Gen., Atty. City, Jefferson Asst. Laughrey, respondent. SHANGLER, J., P. and WEL- Before HIGGINS, Special Judges. BORN SHANGLER, Presiding Judge. by jury The defendant convicted stealing burglary and sentenced offender, court, to concurrent second years for each offense. of five sentences