Henry v. Tinsley , 240 Mo. App. 163 ( 1949 )

It is with regret that I am unable to concur in the opinion of Judge McDowell. I agree that the trial judge, if so advised, had the right, on the evidence before him alone, to hold that the verdict of the jury was excessive; but it is evident that, in this case, the trial judge concluded that error was committed by him in refusing to discharge the jury, in addition to the claimed excessiveness of the verdict, after it appeared to him that the jury was improperly informed that some liability insurance company was interested in the amount of the verdict.

In his opinion, Judge McDowell says, as follows:

"Mr. Shortridge: I would like to ask the Court a question: Does the Court feel that there was any indication of bad faith on the part of the plaintiff and his attorneys in injecting the insurance matter into the case?

"The Court: No. It was my impression that when the plaintiff blurted out the fact that the defendant had said he had insurance, that it was something that was inadvertently done, and there was no bad faith in that instance on the part of the plaintiff's counsel."

Thus it is evident that the inquiries criticised were not due to bad faith on the part of plaintiff or his attorneys, and that the trial judge must have found as a fact, and without any evidence whatever, that he erred in not discharging the jury anyway, and granted a new trial to "mitigate" the claimed excessiveness of the verdict. If he had originally disturbed the verdict on the ground of excessiveness alone, he could not well be criticized for so doing.

The present attitude of the Supreme Court en Banc is particularly apparent in the case of Maurizi v. Western Coal and Mining Company, 11 S.W.2d 268. In that case Judge Gantt said:

"We know of no rule requiring a foundation for the examination of members of the panel as to their qualifications to serve as jurors. The foundation is the right of a litigant to know the relation of the members of the panel to the parties and those interested in the result of the case. Counsel for plaintiff is not required to prove that an insurance company, or insurance agency, is interested before inquiring of the members if they are connected with either. He is presumed to be acting in good faith when he makes the inquiries. If it appears from the record that counsel had reasonable cause to believe an insurance company, or an insurance agency, was interested, and that he acted in good faith in making the inquiries, the sound discretion of the court in controlling and directing the examination will be sustained. On the other hand, if it should appear from the record that counsel has abused the privilege, and the inquiries were not for the purpose of being oble to intelligently make peremptory challenges, the action of the court in permitting the inquiries would not be sustained. The court should require counsel for plaintiff to inquire of defendant's counsel, out of the hearing of the jury, whether or not the insurance company is interested in the case, and, if so, the name of the company. However, it does not follow that a failure to do so would result in convicting the court of error." (Emphasis ours.)

In Olian v. Olian, 59 S.W.2d 673, Judge Sturgis, a former judge of this Court, with the approval of the other Commissioners and all of the Judges of Division One of the Supreme Court, who sat in that case, said:

"We think it should be taken as settled in this state that, when it comes to qualifying and selecting a jury to try a case, the plaintiff has a right to ascertain in a proper manner whether or not an insurance company, by reason of its interest in the result, is actively conducting or assisting in the defense of the suit, and, if so, to properly question the jurors as to their relationship to or interest in the defending company. To this end the plaintiff should be given a reasonably wide latitude in making inquiry and having the jurors answer on oath."

In paragraph 7 l.c. 676 of 59 S.W.2d, Judge Sturgis discusses at considerable length the law respecting the admission of such evidence. That paragraph is too long for quotation in this dissenting opinion; but the reader is respectfully referred to it.

True, the judgment in that case was reversed by the Supreme Court; but it was reversed because the Supreme Court itself held that such verdict was excessive and its opinion did not hold that the trial court could or should have reduced the verdict of the trial jury by a remittitur.

Even an appellate court could not order a remittitur solely in an endeavor to "mitigate" other error or errors. In 4 C.J., Section 3137, page 1139, it is said:

"An appellate court will refuse to affirm an excessive judgment on condition that the prevailing party release or remit the portion that is excessive where it is not apparent from the record what the amount of the excess is and for what amount the correct judgment should be."

If an appellate court cannot reduce a verdict by a remittitur, certainly a trial court cannot do it. I am not at all in favor of counsel for plaintiff in damage suits injecting into such a case the fact, if it be a fact, or a mere suspicion, that the defendant has been farsighted enough to protect himself against loss, by taking out liability insurance; but my former opinion should have no weight in the disposition of this case.

While the law laid down in past years, and, as cited by Judge McDowell, seems to condemn the practice of getting such evidence before a jury by counsel or his client, without a showing of good faith, it seems to me in more recent years the Supreme Court has somewhat relaxed that rule, even where there is no evidence of good or bad faith on the part of counsel for plaintiff, or the client himself.

The appellate courts of this State themselves have often reduced a verdict, which appeared to them to be excessive, and affirmed the judgment, as thus reduced; but the trial courts of this State have never been given power to reduce excessiveness of a verdict by a remittitur.

In Thero v. Missouri Pacific Railway Co. 144 Mo. App. 161,129 S.W. 266, Judge Johnson, of the Kansas City Court of Appeals, said:

"Plaintiff should have been held to his minimum estimate of the value of the animals on the St. Louis market had there been no unusual delay. Instead, he based his remittitur on his maximum estimate of value."

In Kennedy v. Portman, 97 Mo. App. l.c. 257, Judge Goode, of the St. Louis Court of Appeals, said:

"The error in the instruction on the measure of damages was one which, in the state of the evidence, a remittitur could not cure. The judgment must be reversed and the cause remanded."

In Cook v. Globe Printing Co. 227 Mo. 471, 127 S.W. 332, Judge Gantt, speaking for the Supreme Court en Banc, at page 356, said:

"While the verdict is, in our opinion, too large, yet we cannot say that we believe that it is the result of either passion or prejudice, and therefore we are of the opinion that it is a case in which a remittitur may properly be required of the plaintiff, and if he accedes to it that the judgment should be affirmed for the amount of the verdict less the remittitur."

I feel that the remittitur, ordered by the trial court, could not be justified, even by an appellate court, under the evidence in this case, at least for not more than $100.00. If the jury believed plaintiff, it had the undoubted right to return a verdict for plaintiff and assess his damages at the sum of $1,000.00. Plaintiff had testified that his automobile was worth $1,500.00, before the collision, and only $500.00 or $600.00 afterwards. The jury may have felt that the incomplete repairs, testified to by the repair man, did not and could not make plaintiff's automobile as valuable as it was before the collision with defendant's automobile.

Under the circumstances, I certainly believe that the trial court erred in ordering a remittitur on the ground that such remittitur would tend to "mitigate" the other errors which the trial court believed had been made in the trial of the case.

I think the judgment should be reversed, with an instruction to the trial court to reinstate the verdict of the jury, and that the trial court be instructed to render judgment for the plaintiff, in accordance with such verdict. To the opinion of Judge McDowell, in affirming the action of the trial court, I feel compelled to dissent.