In this dаmage suit for personal injuries claimed to have resulted from a vehicular collision about 5 :30 A.M. on September 27, 1958, on U. S. Highway 60 about three miles west of Cabool, Missouri, plaintiff had a jury verdict for $3,700 at the conclusion of the trial on February 23, 1962. On March 26, 1962, the court entered the following order on defendant’s timely motion for new trial: “Now on this day motion for new trial argued orally. Upon plaintiff filing remittitur of $1200 on or within 15 days from 3-26-62, motion for new trial shall stand overruled, otherwise-motion for new trial stands sustained and new trial grаnted defendant.” Having refused to make such remittitur, plaintiff perfected this appeal.
On June 4, 1962, plaintiff’s-appellant’s-counsel
filed, with our clerk
a “Statement Alleging Error Made Pursuant to the Provisions of Rule 83.06(b),”
1
in which demand was made “that respondent (defendant) prepare the original brief” because (so plaintiff’s counsel asserted) “the trial court erred in omitting to specify the ground or grounds on which it granted a new trial.” See Rule 78.01; Section 510.-330. Counsel for defendant-respondent promptly took issue, contending that the above-quoted order “clearly indicated that the motion (for new trial) was sustained because the court thought the verdict excessive” [Connoley v. Beyer Crushed Rock Co.,
Still insisting that he should not have been required to file the original brief, the first point in plaintiff’s brief is that “the trial court erred in failing to specify the ground upon which it relied in purporting to grant defendant a new trial unless plaintiff file a remittitur.” Under this point, plaintiff cites numerous cases 2 recognizing and applying the provisions of procedural rules adopted by our Supreme Court to the effect that, “(w)hen a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial * * * the burden of supporting such action is placed on the respondent,” and “it shall never be presumed that the new trial was granted on any discretionary grounds.” Rule 83.06, subds. (b) and (c). (All emphasis herein is ours.) Of course, we recognize that the quoted rule means exactly what it says, but its applicability in this (or, for that matter, in any other) case depends upon the italicized predicate, i. e., the grant of a new trial “without specifying of record the ground or grounds on which the new trial is granted.”
Rule 78.01 [Section 510.330] plainly directs that “(e)very order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted,” and Rule 83.06 spells out the procedural consequences of failure to comply with the quoted requirement of Rule 78.01. But, just how “specific” must be the statement of the ground in the trial court’s order remains, in some instances, a subject of inquiry and a source of difficulty. E. g., Davis v. Kansas City Public Service Co., Mo.,
On the other hand, our Supreme Court has pointed out that the purpose of the procedural provisions now embodied in Rule 78.01 [see Section 510.330 and former Supreme Court Rule 3.22] “is to clothe the trial judge, who enjoys the advantage of meeting thе parties and witnesses face to face, with a wide discretion to be exercised in the furtherance of substantial justice” [Donati v. Gualdoni,
The order under scrutiny here, in which the trial court declared that, “upon plaintiff filing remittitur of $1200 * * * motion for new trial shall stand overruled, otherwise motion for new trial stands sustained,” clearly shows on its face that the court thought the verdict excessive. Connoley, supra, 355 Mo. loc. cit. 689, 197 S.W.2d loc. cit. 656. In this jurisdiction, excessive verdicts fall into two categories, to wit, (1) verdicts reflecting
simple excessiveness,
where the jury has made an honest mistake in weighing the evidence as to injury and in fixing the damages and has awarded a disproportionate sum under the rule of uniformity, and (2) verdicts reflecting
exces-siveness by misconduct,
where the result usually savors of bias and prejudice engendered during trial. Numerous Missouri cases
3
recognize the vital distinction between the two categories of excessive verdicts and point out that
simple excessiveness
may be and usually should be сured by enforced remittitur, thus affording opportunity to avoid the delay and expense incident to retrial [Jones v. Pennsylvania R. Co.,
In the instant case the trial court obviously found
simple excessiv'eness,
for an order permitting a verdict to stand, as corrected by remittitur, “presupposes a verdict resultant of the jury’s unbiased, dispassionate and impartial consideration of the evidence.” Jones, supra, 353 Mo. loc. cit. 171, 182 S.W.2d loc. cit. 159; Cruce v. Gulf, Mobile & Ohio R. Co.,
The second (and only other) point in plaintiff’s brief is that “the trial court erred in granting a new trial upon the defendant’s motion for the reason that said motiоn did not present any predicate of error to justify such action.” As developed in the brief and oral argument, this complaint is that, regardless of whether the order reasonably might be said to have granted a new trial for simple excessiveness of the verdict, the trial court was not authorized to grant a new trial on that ground because (so plaintiff contends) simple excessiveness was not presented and preserved in defendant’s motion for new trial. Since Sunday, March 25, 1962, was the last day of the thirty-day period after verdict and judgment on February 23, within which the trial court of its own initiative might have ordered a new trial “for any reason for which it might have granted a new trial on motion of a party” [Rule 75.01; Section 510.370], that thirty-day period was extended to include the following day, Monday, March 26. Rule 44.01 (a); Section 506.060(1). However, in entering on March 26 the order under consideration here, the trial court did not purport to act “of its own initiative” [Rule 75.01; Section 510.370], but the order obviously was entered in response to, and clearly was dependent upon, defendant’s motion for nеw trial. Accordingly, we agree with instant plaintiff that the order granting a new trial for simple ex-cessiveness of the verdict should not be sustained unless defendant’s motion for new trial presented and preserved that ground. 4
Whether simple excessiveness was so presented and preserved is a question which, due to the unorthodox form and content of the motion for new trial, is not free from doubt and difficulty. Almost seven tran-script pages in length, the motion included quoted excerpts and digested passages from the medical testimony and (in addition to these excerpts, the prefatory paragraph and the prayer) contained nine paragraphs, only three of which were numbered. We are not here concerned with the first numbered paragraph, the medical testimony quoted thereunder, and the succeeding unnumbered paragraph, all of which related to alleged error in the court’s admission of, and refusal to strike, certain evidence.
In the second numbered paragraph, plaintiff complained that “the verdict of the jury was and is excessive and the result of bias and prejudice on part of the jury against the defendant and in favor of plaintiff.” This assignment was followed by five unnumbered paragraphs and an excerpt from plaintiff’s medical testimony, all obviously directed to the alleged excessiveness of the verdict. The last such unnumbered paragraph asserted, by way of summation and conclusion, that “therefore, the only elements of damage established by plaintiff as a direct result of the injuries occasioned by the collision were (a) loss of two week’s (sic) work, $400.00; (b) medical expense of $120.00; (c) pain and suffering by reason of cuts and abrasions during the two weeks immediately following the collision.”
The third numbered paragraph opened thus: “The amount of damages allowed plaintiff by the jury was not supported by any credible evidence in the case and was based on mere speculation, guess and surmise as shown by the evidence aforesaid.” The quoted sentence pertained to the alleged excessiveness of the verdict and, by its language (i. e., “as shown by the evidence aforesaid”), referred to the evidence *480 bearing upon alleged excessiveness which had been quoted under or digested in the preceding unnumbered paragraphs. The remainder of the third numbered paragraph was directed to an entirely different point in which we have no interest here, to wit, that the trial court had erred in refusing to sustain defendant’s motions for directed verdict “for the reason that plaintiff’s evidence as a basis for his cause of action (i. e., concerning the manner in which the collision had occurred) was opposed to physical facts.”
In their brief, plaintiff’s counsel characterize the
second numbered
paragraph as a ■“claim of prejudicial misconduct on the part of the jury”; and, if this paragraph stood alone without explanation, elaboration or elucidation, we would be constrained to ■agree that it constituted an assignment of
■excessiveness by misconduct.
Skadal, supra, 351 S.W.2d loc. cit. 690; Stokes v. Wabash R. Co.,
All of this suggests various close and perplexing questions, e. g., (1) whether the five unnumbered paragraphs and excerpted testimony were so tied to the second numbered paragraph that all necessarily should have been considered and construed together as “part 2" of the motion for new trial and as a single assignment of error; (2) if question (1) were answered in the affirmative, whether the conjunctive charge of “bias and prejudice” in the second numbered paragraph so tainted the remainder of “part 2” (i. e., the five unnumbered paragraphs and excerpted testimony) as to have impelled the conclusion that, construed as an entity, “part 2” charged excessiveness by misconduct rather than simple excessiveness; and (3) if question (1) were answered in the negative, whether one or more of the five unnumbered рaragraphs properly might have been construed as an assignment of simple excessiveness. However, in our view of the matter, we need not and, therefore, do not resolve any of the questions posed. For, whatever construction of “part 2” (or any portion thereof) might have been permissible or proper, we are of the opinion that the first sentence of the third numbered paragraph was sufficient to raise and preserve simple excessiveness of the verdict.
Again attending to the language of that sentence, we read that “the amount of damages allowed plaintiff by the jury was not supported by any credible evidеnce in the case and was based on mere speculation, guess and surmise as shown by the evidence aforesaid,” and we remind ourselves that “the evidence aforesaid” (i. e., that quoted under and digested in the
five unnumbered
paragraphs immediately preceding the
third numbered
paragraph) bore upon the alleged excessiveness of the verdict but in no wise charged or even suggested
exces-siveness by misconduct.
In McCloskey v.
*481
Pulitzer Pub. Co.,
Neither the assignments under scrutiny in M'cCloskey and Christian University, supra, nor those under consideration here were “precise assignments of mere exces-siveness.” Cruce, supra, 361 Mo. loc. cit. 1149, 238 S.W.2d loc. cit. 680. But, mindful of the injunction by rule and by statute that “(a) 11 pleadings shall be so construed as to do substantial justice” [Rule 55.26; Section 509.250] and of the blunt judicial admonition that “(a)ssignments of error in a motion for new trial should be given liberal construction” [Stroh v. Johns, Mo.,
Although the foregoing is dis-positive of the only two points in plaintiff’s brief, the earnestness and perseverance of plaintiff’s counsel move us to consider also the oblique attack in a subpoint that the “order requiring a remittitur * * * constituted an abuse of authority in that it is without supрort in the record.” The governing principles are well-settled. Of course, it is the province of the jury, in the first instance, to assess the amount of damages [Spica v. McDonald, Mo.,
Plaintiff, then forty-three years of age and “a lease driver” for a trucking concern, was at the time of accident westbound on Highway 60 in a new 1958 GMC diesel tractor. Defendant was driving a tow-car unit (i. e., a 1951 Buick towing a 1951 Ford) in an easterly direction on the same highway. As a result of the collision, plaintiff’s tractor overturned. Plaintiff said that he “lost consciousness” at the time of impact and “regained consciousness in the ambulance in front of Dr. Speers’ clinic in Cabool.” But defendant’s evidence on this subject was that, while still in the overturned cab of the tractor, plaintiff had reached up and turned off the motor. Dr. Joe Speers, the only medical witness, detailed and described plaintiff’s injuries as a laceration on the back of his head about one inch in length and closed with three sutures, a laceration on his right forehead about three-quarters inch in length and closed with two sutures, several bruised areas including a bruise below the right knee, the skin “scraped in a few places over his head,” and “shock” — “I think you could say that.” Plaintiff remained at Dr. Speers’ office for some four hours until his wife, notified over long distance, arrived in Cabool and on the same date returned plaintiff by automobilе to his home in Tulsa. Thereafter, plaintiff made two calls at the office of Dr. Stuart White in Tulsa, the first on the day following the accident and the second three or four days later when the sutures were removed. Admittedly, plaintiff sustained no fracture and was not hospitalized. Although still “awfully sore,” he returned to work two weeks after the accident. To that date, his medical expenses had aggregated $15 (i. e., $5 to Dr. Speers and $10 to Dr. White); and, since his average earnings were “probably $200 a week,” his loss оf earnings had been about $400.
In their critical discussion of defendant’s motion for new trial, plaintiff’s counsel emphasize (to borrow their terminology) two “episodes of severe back pain” suffered by their client in June 1959 and in July 1960. In describing the June 1959 episode, plaintiff said: “I started to wash my face one morning, and I don’t know what happened, I’m not — not a medical man — but I couldn’t straighten up. I had stooped over to wash my face and — well, that’s the position I remained in for two weeks.” Plaintiff “went to a Dr. Stewart in Tulsa,” who took x-rays and рrescribed some “pain relievers.” In the July 1960 episode (apparently of the same character as the previous one), plaintiff “went back to Dr. Stewart again” and then to a “Mr. Kempe” — “I don’t know whether he’s a chiropractor or an osteopath.” Plaintiff was off work three weeks in the June 1959 episode and two weeks in the July 1960 episode. Dr. Stewart’s bill for services, including “a series of x-rays,” totaled $80. Dr. Kempe’s bill was “probably $20.” With plaintiff himself spontaneously and significantly explaining that “I dоn’t know what happened, I’m not a medical man,” and with no information concerning *483 either back episode having been supplied by any other witness, obviously neither the jurors nor the trial judge (none of them men of medicine) could have known “what happened.” Pursuant to request by his counsel, plaintiff was re-examined by Dr. Speers of Cabool on October 13,1961. Upon trial Dr. Speers expressed the opinion that plaintiff “has a weak of unstable back” which “probably is permanent,” but the doctor further said that, “as to what caused this, I don’t think I could make any statement”
The burden rested on plaintiff to show by substantial evidence the causal connection between defendant’s negligence and the alleged injuries for which recovery was sought. Berry v. Kansas City Public Service Co.,
In these circumstances, the trial court in considering and ruling the complaint of simple excessiveness in the motion for new trial properly should have disregarded, and no doubt did disregard, the testimony pertaining to the back episodеs and “a weak or unstable back.” With this evidence put aside as it should be on the transcript before us, we think it clear beyond reasonable room for argument that plaintiff has not carried his appellate burden of demonstrating that the trial court abused its discretion in finding that the verdict for $3,700 was excessive and in ordering a new trial upon plaintiff’s refusal to remit $1,200. Fullerton v. Atchison, T. & S. F. Ry. Co., Mo.,
Plaintiff’s counsel have suggested that another trial (if ordered) should bе limited to the issue of damages. But, for the logical and convincing reasons amplified in Greco v. Hendricks, supra, 327 S.W.2d loc. cit. 247-249(8, 9), we are of the opinion that the order granting a new trial should be affirmed in its entirety and that the cause should be remanded for retrial on all issues. See also Pinkston v. McClanahan, Mo.,
Notes
. Except as otherwise specifically stated, all réferences to rules are to the Supreme Court Rules of Civil Procedure, Y.A.M. R., and all references to statutes are to RSMo 1959, V.A.M.S.
. Hall v. Brookshire,
. Nussbaum v. Kansas City Stock Yards Co. of Maine, Mo.,
. Loveless v. Locke Distributing Co., Mo.,