Kreglinger v. Stillwell

592 S.W.2d 228, 1979 Mo. App. LEXIS 2667
CourtMissouri Court of Appeals
DecidedDecember 3, 1979
DocketNo. KCD 30139
StatusPublished
Cited by5 cases

This text of 592 S.W.2d 228 (Kreglinger v. Stillwell) 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
Kreglinger v. Stillwell, 592 S.W.2d 228, 1979 Mo. App. LEXIS 2667 (Mo. Ct. App. 1979).

Opinion

MANFORD, Judge.

This is an action for damages case in three counts, Count I for personal injury, Count II for injury to property and Count III for loss of consortium, arising from an automobile collision. The jury returned its verdict for plaintiffs in the sum of $100.00 on Count I and the sum of $100.00 on Count II. The jury found for defendants and against plaintiffs on Count III.

This court is left with one point upon appeal. This point is the appellant’s contention that the court erred in its refusal to grant appellants a new trial because the verdict on Counts I and III was so grossly inadequate that it. evinced passion and prejudice among the jury against appellants. While appellants raise the same contention as to both Counts I and III, more properly appellants argue inadequacy of the verdict as to Count I, and that since the jury found against respondent on the question of liability, the jury should have returned a verdict in favor of appellants on Count III. In other words, to be technically precise, there can be no proper contention of inadequacy on Count III because the verdict was for respondent.

[230]*230The pertinent facts are as follows. On October 27, 1969, plaintiff Eugene Kre-glinger, who was alone in his automobile, was en route to his place of employment, the Remington Arms Company at Lake City, Missouri.1 He was eastbound on Highway 78 at about 7:40 a. m. Mr. Kre-glinger testified that the roadway was two lanes wide for eastbound traffic and there was a grassy median strip separating the two eastbound lanes from the two westbound lanes. He further testified that proceeding in front of him was a local public school bus. As the bus continued eastbound and in the right or outside lane, it slowed to a stop at or near the intersection of Highway 78 and Fisher Road. The reason the bus stopped, it was assumed, was to pick up a school child. Mr. Kreglinger testified he saw the stop lights, flashing lights and the side stop sign of the bus used by the bus operator in connection with the stopping of the bus. The testimony by this party stated further that he stopped in response to the school bus stop sign and flashing red lights.

While in this stopped position, the rear of Mr. Kreglinger’s vehicle was struck by another vehicle. When asked repeatedly upon direct examination and cross-examination if there were two impacts or crashes, he described only one impact. The evidence revealed that Mr. Kreglinger’s vehicle was propelled approximately 100 feet further east upon Highway 78. The evidence further revealed that Mr. Kreglinger’s vehicle had been struck in the rear by the vehicle of defendant Stillwell.

Defendant Stillwell testified that she and a fellow worker, Virginia VanWormer, were en route to their place of employment, which was also at the Lake City Arsenal. It was the testimony of passenger Van-Wormer which established that the school bus stopped, Mr. Kreglinger’s vehicle stopped and that defendant Stillwell’s vehicle, because it did not stop in time, struck the rear of Mr. Kreglinger’s vehicle. Witness VanWormer testified that Mr. Kre-glinger’s vehicle had not passed defendant Stillwell’s vehicle prior to the collision.

Defendant Stillwell (respondent herein) testified that she saw the bus stop, that Mr. Kreglinger’s vehicle had been in the right or outside lane, that her own vehicle was in the left or inside lane, that Mr. Kreglinger’s vehicle passed her vehicle on the right and then proceeded into the left or inside lane in front of the Stillwell vehicle, that Mr. Kre-glinger’s vehicle then came to a stop and she stopped her vehicle without contact with Mr. Kreglinger’s vehicle. This defendant further testified her vehicle was struck from the rear by another vehicle, with the other vehicle veering off the road and down an embankment.

The foregoing facts alluding to the evidence on liability are presented in a general sense because, for purposes of this appeal, it is plaintiffs’-appellants’ contention that the finding of the jury included or resolved the question of liability. Appellant contends the measure or award of damages was wholly inadequate as based upon the evidence.

This court, of course, is not at liberty to rule upon the weight of the evidence regarding a motion for new trial. Such determination falls exclusively within the purview of the trial court, see Cohen v. Archibald Plumbing and Heating Co., 555 S.W.2d 676 (Mo.App.1977); State v. Minor, 531 S.W.2d 101 (Mo.App.1975); Strickner v. Brown, 491 S.W.2d 253 (Mo.1973); Herrman Lumber Company v. Cox, 521 S.W.2d 4 (Mo.App.1975). Rather, it is the responsibility of this court to determine from the evidence whether there is substantial evidence to support the verdict. Under Rule 78.01, this court is bound to review the question of substantial evidence in a light most favorable to the respondent, see Elben v. Allen Auto Rental & Truck Leasing, Inc., 547 S.W.2d 492 (Mo.App.1976). See also Wilson v. Concordia Farmers Mutual Insurance Co., 479 S.W.2d 159 (Mo.App.1972) and Toedtman v. Grass, 116 S.W.2d 153 (Mo.App.1938).

[231]*231Plaintiffs offered evidence as to the personal injuries of plaintiff Eugene Kreglinger and as to the loss of consortium or services of plaintiff Lena M. Kreglinger.

The loss of consortium or services question is taken up and disposed of first. This was Count III under plaintiffs’ petition.2 On this point, plaintiff Lena Kreglinger testified that her husband was unable to perform household duties. These included the painting of their house and the mowing of their lawn. Plaintiffs’ residence was upon land which included a steep incline and prior to the accident, Mr. Kreglinger would tie a rope on his lawnmower to lower and raise the mower to cut the grass. The testimony was that following the accident, he could no longer engage in this activity. In addition, Lena Kreglinger testified that she and her husband had engaged in sexual intercourse two to three or more times per month prior to the accident, but that following the accident, sexual activity between them had ceased. Although admitting that her husband had prior medical and physical problems, Lena Kreglinger testified the loss of household activities and the ceasing of sexual activity with her husband were attributed to the injuries her husband received in the accident.

Plaintiffs’ daughter testified that she observed a curbing or reduction of her father’s activities in relation to performing household duties. She also testified she was aware of her father’s prior medical or physical problems but did not attribute his reduced activity to anything other than injuries he received in this particular accident. A neighbor and fellow employee testified that he thought Mr. Kreglinger “had slowed down”. This witness did not work in the same plant area as Mr. Kreglinger and did not perform the same job duties. He did not observe Mr. Kreglinger’s day-today job performance.

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Bluebook (online)
592 S.W.2d 228, 1979 Mo. App. LEXIS 2667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreglinger-v-stillwell-moctapp-1979.