Means v. Sears, Roebuck & Co. ( 1977 )

SEILER, Chief Justice,

concurring in result.

I agree that the $40,000 judgment should be affirmed. But, respectfully submitted, instead of limiting the modification of the rule in Webb v. Bench, 476 S.W.2d 570 (Mo.1972) and Carver v. Missouri-Kansas-Texas R.R., 362 Mo. 897, 245 S.W.2d 96 (1952) to the situation where the defendant, after obtaining a remittitur in the trial court, seeks further remittitur on appeal, I would do away with the rule altogether and permit the plaintiff to seek to have the jury verdict reinstated whenever defendant appeals, regardless of whether defendant seeks further remittitur on appeal. Otherwise defendant can take his appeal, secure in the knowledge that so long as he seeks no further remittitur on appeal, he can fare no worse than to have to pay the judgment as reduced by the remittitur in the trial court. This is not fair, because as well expressed in Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130, 135 (1963):

“ . . . The objective underlying [the practice of remittitur in lieu of having a new trial] is to avoid the delay and expense of an appeal or a new trial. In most situations, it is likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found liable to pay damages appeals the judgment resulting from the other party’s accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal . . . ”

Or as put by Judge Smith in his concurring opinion in Best v. Fred Weber Construction Co., 525 S.W.2d 102, 108-09 (Mo.App. 1975) from the plaintiff’s standpoint: “. . . Plaintiffs, on the other hand, have gained little or nothing from accepting the remittitur, which acceptance may well have been based upon a desire to receive the judgment expeditiously.”

The unfairness mentioned by the Wisconsin court and Judge Smith does not depend on whether defendant does or does not seek a further reduction in the appellate court. The unfairness is there either way. While I agree with Judge Finch that “[t]he remitti-tur practice was never intended to serve as a complete answer to all objections raised by a defendant in a motion for new trial after plaintiff has obtained a verdict”, this does not meet the unfairness issue. When a conditional remittitur is ordered, plaintiff has only a Hobson’s choice — take that or else acquiesce in a new trial (which is exactly what defendant has prayed for) or appeal on the ground that the trial court erred in reducing the verdict [(usually quite fruitless, as the standard of review applied to the question is that the reviewing court looks at the evidence in the light most favorable to the remittitur, which means the evidence favorable to defendant’s, not plaintiff’s position. See these cases for example where plaintiff refused to remit and was unsuccessful on appeal: Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 612-13 (1953); Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566, 569 (1951), and Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 431 (banc 1951)]. However, when defendant appeals after a conditional remittitur, defendant is given a much more attractive choice: the option of whether the remitti-tur issue is to be kept alive on appeal is entirely up to defendant, even though the action of the trial court in that regard was in his favor. No such option is necessary for justice to be done. Either with or without it, defendant is free to test, by appeal, other reasons why he contends he should have a new trial, such as failure to make a submissible case, error in instructions, error in evidentiary rulings or other trial errors. The option is an unjustified bonus.

With the question being squarely presented to us as to whether we should overrule the rule of the Carver and Webb cases, I would, as stated at the outset, do away with the rule completely and would permit plaintiff to raise the question on appeal of whether the verdict should be reinstated whenever the defendant takes an appeal after plaintiff has remitted, whether defendant seeks further reduction on appeal or not. I agree, however, with the principal opinion that in this particular case the trial court did not err in ordering a remittitur of $25,000.