Best v. Fred Weber Construction Co.

525 S.W.2d 102, 1975 Mo. App. LEXIS 1707
CourtMissouri Court of Appeals
DecidedMay 20, 1975
Docket35938
StatusPublished
Cited by20 cases

This text of 525 S.W.2d 102 (Best v. Fred Weber Construction Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Best v. Fred Weber Construction Co., 525 S.W.2d 102, 1975 Mo. App. LEXIS 1707 (Mo. Ct. App. 1975).

Opinions

KELLY, Judge.

This appeal from the Circuit Court of the City of St. Louis, Missouri, from a judgment of that Court awarding the plaintiffs, husband and wife, damages for injuries sustained by the wife, Carolyn Best, and loss of consortium and medical expenses incurred on the part of the husband, Stephen [105]*105Best, presents for review in this court the following Points:

1. excessiveness of verdict indicating bias and prejudice on the part of the jury;
2. trial court erred in not reducing original verdict of $50,000.00 for Mrs. Best and $20,000.00 for Mr. Best below the judgment from which this appeal was taken after reduction by $20,000.00 and $8,000.00 respectively, or a total of $42,000.00;
3. error in overruling defendant’s objection to plaintiffs closing argument which was designed to arouse bias and prejudice against the defendant; and
4. precluding evidence to show precautions defendant took to make the exit ramp safe.

Defendant does not question the sufficiency of the evidence.

The facts of the case are:

Shortly after midnight on Saturday, October 18, 1969, plaintiff-respondents, Carolyn and Stephen Best, were riding in a car driven by defendant, Ted Gilmor. Defendant Gilmor was traveling west on U. S. Highway 44 when he took the westbound exit ramp at Eureka, Missouri. He did not see a sharp curve at the top of the ramp in time to sufficiently slow down and the car traveled down an embankment striking another ear at the bottom of the hill. Neither defendant, Gilmor nor any of the other passengers noticed any warning signs indicating a right turn, although flashing red lights were observed ahead and to the right of the vehicle. In addition, several other witnesses testified that no warning signs were posted along the ramp.

Both the plaintiffs left the scene of the accident in an ambulance and were taken to Rockwood Hospital. Stephen Best was treated and released. Suffering from a spiral fracture of the left femur, Carolyn Best was placed in traction for 9 or 10 days. Thereafter, an operation was performed where the femur was placed back into alignment by the use of metal plates screwed into the bone. She remained in the hospital for approximately another week.

Mrs. Best had suffered as a child from poliomyelitis which had affected both legs. However, she was able to walk by herself with the use of lateral long leg braces and Canadian crutches. After her release from the hospital she was required to use a wheel chair for approximately 6 months during which time she could do very few household chores. Up to the time of trial Mrs. Best still used the wheelchair sometimes in the evening when she was tired. In addition, she has continually experienced leg and back pain. Two orthopedic surgeons testified that she had made a good recovery, but a tendency for her lower limb to roll out and the pain that she experienced were permanent conditions.

Stephen Best testified that he incurred medical, wheel chair and housekeeping expenses in the amount of $4,402.65.

The jury returned a verdict on Count I in favor of plaintiff, Carolyn Best, in the amount of $50,000.00 and on Count II in favor of plaintiff, Stephen Best, in the amount of $20,000.00. Both counts were against defendant Fred Weber Construction Company but in favor of the co-defendant, Ted Gilmor.

Subsequently, defendant Fred Weber Construction Company filed a motion for a new trial. The trial court stated that if, within 10 days, Carolyn Best would remit the sum of $20,000.00 and Stephen Best would remit the sum of $8,000.00, defendant’s motion for a new trial would be overruled. Otherwise, the motion would be sustained on the ground that the verdict was excessive. Thereafter, the plaintiffs did remit such amounts and the motion for a new trial was overruled. On November 15, [106]*1061973, defendant Fred Weber Construction Company filed its Notice of Appeal with this Court.

Defendant’s first point is, we conclude, without merit. Size of verdict alone, and the fact that it might be excessive (as the trial court found here), does not of itself establish that the verdict was the result of bias, passion or prejudice without the showing of some error committed at the trial. Boehm v. St. Louis Public Service Co., 368 S.W.2d 361, 369[9] (Mo.1963). Only the trial court may infer prejudice and bias from the mere size of the verdict, Jones v. Penn Ry. Co., 353 Mo. 163,182 S.W.2d 157,159 (1944), and this because of its better opportunity to measure the general effect of the trial proceedings on the jury. Appellate courts, on the other hand, although empowered to correct the excessiveness of a verdict in a proper case by remittitur, may not infer prejudice from the mere size of the verdict alone. Jones v. Penn Ry. Co., supra. Here, the trial court considered the size of the verdict, determined it to be excessive although not the result of bias and prejudice on the part of the jury, and ordered a remittitur. Unless there was some error committed at the trial we must affirm.

Defendant’s second point, like its first, is likewise without merit. If the evidence, viewed in the light most favorable to the ruling of the trial court, affords reasonable and substantial support for the ruling, then it must be affirmed. Morris v. Israel Brothers, Inc., 510 S.W.2d 487, 447[13] (Mo. 1974). The trial court here has actually considered the matter of excessiveness of the jury verdict and, by ordering remittitur, has given an affirmative expression of its own considered view as to what the size of the verdict should be, and the appellate court, while not bound thereby, nevertheless accords the trial court’s ruling very great weight, and regards it so strongly persuasive that except in a case which unmistakably calls for a greater reduction, the judgment of the trial court will not be disturbed on appeal. Morris v. Israel Brothers, Inc., supra.

In resolving the question whether a further reduction is required, in the verdict awarded Mrs. Best, this court must consider the nature and extent of the injuries and losses, plaintiff’s age and diminished earning capacity, if any, the changing economic factors, and the amount awarded and approved in cases of similar or of fairly similar comparable injuries. Helming v. Dulle, 441 S.W.2d 350, 354 (Mo.1969). Carolyn Best, plaintiff-wife, was 28 years of age at the time of the accident. She sustained a spiral fracture of her left thigh. Her hospital stay lasted two and one-half weeks, nine or ten days of which she spent in traction. She underwent surgery whereby metal plates were screwed to the bone of the femur. She was confined to a wheel chair for approximately six months. At the time of trial she was still experiencing pain — a throbbing — in her left leg and in her back, and there was an external rotation attitude of her left lower limb which will be permanent. She tires more easily and occasionally uses her wheel chair.

Although we find no case directly in point, we have a few cases which lend us some guidance in deciding the size of this verdict and its excessiveness. In Lycon v. Walker, 279 F.2d 478

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peterson v. Progressive Contractors, Inc.
399 S.W.3d 850 (Missouri Court of Appeals, 2013)
Harlan v. APAC-Missouri, Inc.
360 S.W.3d 826 (Missouri Court of Appeals, 2011)
Wiley v. Homfeld
307 S.W.3d 145 (Missouri Court of Appeals, 2009)
Papile v. Batman Co.
38 Va. Cir. 127 (Fairfax County Circuit Court, 1995)
Swindell v. J. A. Tobin Construction Co.
629 S.W.2d 536 (Missouri Court of Appeals, 1981)
Parker v. Pine
617 S.W.2d 536 (Missouri Court of Appeals, 1981)
Arkansas-Missouri Power Co. v. Haines
592 S.W.2d 883 (Missouri Court of Appeals, 1980)
Mora v. State
369 N.E.2d 868 (Illinois Supreme Court, 1977)
Means v. Sears, Roebuck & Co.
550 S.W.2d 780 (Supreme Court of Missouri, 1977)
McDowell v. Southwestern Bell Telephone Co.
546 S.W.2d 160 (Missouri Court of Appeals, 1976)
Dick v. Scott Construction Co.
539 S.W.2d 688 (Missouri Court of Appeals, 1976)
Wright v. Wright
538 S.W.2d 750 (Missouri Court of Appeals, 1976)
Best v. Fred Weber Construction Co.
525 S.W.2d 102 (Missouri Court of Appeals, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
525 S.W.2d 102, 1975 Mo. App. LEXIS 1707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/best-v-fred-weber-construction-co-moctapp-1975.