Baumgart, Bradley J.

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University of Missouri School of Law

Missouri Law Review Volume 43 Issue 1 Winter 1978 Article 12 Winter 1978 Civil Procedure--Remittitur--Limited Right of Remitting Party to Cross-Appeal--Means v. Sears, Roebuck & Co. Bradley J. Baumgart Follow this and additional works at: https://scholarship.law.missouri.edu/mlr  Part of the Law Commons Recommended Citation Bradley J. Baumgart, Civil Procedure--Remittitur--Limited Right of Remitting Party to Cross-Appeal--Means v. Sears, Roebuck & Co. , 43 MO. L. REV. (1978) Available at: https://scholarship.law.missouri.edu/mlr/vol43/iss1/12 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu. RECENT CASESthe operation of sovereign immunity, 54 and the availability of dam-ages.55 Rules which always place the burdens of proof on the baileehave recently been adopted by several states in well-reasoned opin-ions.56 The Missouri Supreme Court should consider the issue and dothe same. Under such a rule, the outcome of bailment actions woulddepend more upon the merits and less upon artful pleadings.JAMES L. MOELLERCIVIL PROCEDURE-REMITTITUR-LIMITED RIGHT OFREMITTING PARTY TO CROSS-APPEALMeans v. Sears, Roebuck & Co. 'A trial judge may reduce a jury verdict he deems excessive, and avoidgranting a new trial, by ordering a remittitur. This is a procedure wherebythe defendant's motion for a new trial is denied by the trial court if theplaintiff agrees to accept a specified reduction in the jury's award. Under thecommon law rule, a plaintiff who accepts a remittitur to avoid undergoing anew trial is precluded on appeal from complaining of the insufficiency of thejudgment awarded him.2 This rule recently was modified in Missouri inMeans v. Sears, Roebuck & Co.In Means the plaintiff brought an action to recover for personal injuriesand won a jury verdict of $65,000. The trial judge ordered aremittitur of $25,000, which the plaintiff accepted. The defendant ap-pealed, raising the excessiveness of the judgment; the plaintiff cross-ap-pealed, seeking reinstatement of the original verdict. The St. Louis Districtof the Missouri Court of Appeals affirmed the plaintiff's remitted recovery.may have different statutory periods for the respective actions and rules may vary asto when the statute starts to run.54. See Jurisich v. Board of Levee Comm'rs, 8 So. 2d 554 (La. App. 1942) (acontract action for damage to a bailed airplane was successfully pursued because thegovernmental bailee's sovereign immunity precluded an action in tort).55. Punitive damages are much more likely in a tort action than in a contractaction. For a recovery of punitive damages in a bailment situation, see Brown v.Sloan's Moving & Storage Co., 296 S.W.2d 20 (Mo. 1956) (bailor joined action onbailment contract with claim for fraud; a successful claim for punitive damages wasbased on the latter).56. See cases cited in note 8 supra.1. 550 S.W.2d 780 (Mo. En Banc 1977).2. See Annot., 16 A.L.R.3d 1327, 1329 (1967).1978]1Baumgart: Baumgart: Civil Procedure--Remittitur--Limited Right of Remitting PartyPublished by University of Missouri School of Law Scholarship Repository, 1978MISSOURI LAW REVIEWHowever, the court recognized the need to reconsider the Missouri rulewhich prohibits a plaintiff who has accepted a remittitur from arguing for areinstatement of the original verdict and transferred the case to the MissouriSupreme Court for a reexamination of this rule. The supreme court af-firmed the court of appeals decision but modified the common law remit-titur rule and held that when the plaintiff has accepted a remittitur in thetrial court and the defendant raises the issue of the excessiveness of theaward on appeal, the plaintiff may then request review of the remittiturorder, i.e., may ask for reinstatement of the original verdict.3The approach taken by Missouri courts prior to Means is illustrated inCarver v. Missouri-K.-T. R.R. 4 The jury awarded $67,500 for the wrongfuldeath of the plaintiff's husband. The trial judge ordered a remittitur of$15,000 as a condition to overruling the defendant's motion for a new trial.The plaintiff accepted the remittitur and judgment was entered for theremitted verdict. On appeal the defendant assigned as error the excessive-ness of the damages awarded. The plaintiff also appealed and sought to havethe jury verdict reinstated. He asserted that the remittitur was under thecompulsion of a final order which would sustain the defendant's motion fora new trial.The court sustained the defendant's motion to dismiss plaintiff's appealand held that once a plaintiff has accepted a remittitur he cannot question itsvalidity. In answering the plaintiff's assertion that the remittitur order wasunder compulsion, the court explained that remittitur orders are construedas effectively granting the defendant a new trial due to the excessiveness ofthe verdict. The plaintiff has the power, however, to surrender that part ofthe judgment considered excessive and thereby defeat the defendant's newtrial. The exercise of this power by the plaintiff is a voluntary election toaccept the remittitur. The court also noted, citing Counts v. Thompson, 5 thatthe remittitur practice was instituted for the benefit of injured plaintiffs sothat a judgment for a proper amount could be entered, and the delay andexpense of a new trial thus could be avoided.In Carver the court relied on the authority of United States SupremeCourt cases, 6 cases from other jurisdictions, 7 and legal encyclopedias.83. 550 S.W.2d at 789. The court did not comment on a more liberal rule, alsosuggested by the plaintiff, whereby the defendant also would be required to consentupon the entry of a remittitur; if the defendant did not consent, the remittitur orderwould be vacated. The defendant then could take an appeal, but the appeal would befrom the original verdict and not from the '.erdict after remittitur.4. 362 Mo. 897, 245 S.W.2d 96 (1952). See also Webb v. Rench, 476 S.W.2d 570(Mo. 1972).5. 359 Mo. 485, 222 S.W.2d 487 (1949).6. Koenigsberger v. Richmond Silver Min. Co., 158 U.S. 41 (1895); Kennon v.Gilmer, 131 U.S. 22 (1889).7. Florida East Coast Ry. v. Ruckles, 83 Fla. 599,92 So. 159 (1922); McDaniel v.Hancock, 328 Mich. 78, 43 N.W.2d 68 (1950).8. 4 C.J.S.Appeal and Error § 213 at 635 (1957); 39 AM.JUR.New Trial § 213 at206, nn.8-11 (1942).[Vol. 432Missouri Law Review, Vol. 43, Iss. 1 [1978], Art. 12https://scholarship.law.missouri.edu/mlr/vol43/iss1/12RECENT CASESAlthough the court declined to comment on the reasoning behind theseauthorities, there is some logic in the common law rule. Whether the prohib-ition on appeal is couched in terms of waiver, 9 estoppel,' 0 or lack of stand-ing,'" the basic idea is that one may not appeal from ajudgment to which hehas consented.' 2 This logic, however, is not without limits. If the purposebehind allowing the plaintiff to remit a portion of the verdict is settlement ofthe issue of damages,' 3 this purpose of the remittitur procedure is negatedwhen the defendant appeals the issue of damages. This was the conceptadopted by the Missouri Supreme Court in Means when it reasoned that inacceding to a remittitur the plaintiff should be able to assume that the issueof damages is settled. When that issue is kept alive by the defendant's appeal,"the whole issue of what remittitur, if any, is required should be open forconsideration by the appellate court." 14With the Means decision Missouri departs from the general rule that aplaintiff cannot challenge the propriety of a remittitur order after acceptingit, and aligns itself with a significant minority of jurisdictions which allowsome type of appellate review of a remittitur order. Although some of theseotherjurisdictions permit review by statute or procedural rule,'5 some haveprovided for review through judicial decision. 16The decision in Plesko v. City of Milwaukee '7 has been a substantialinfluence in jurisdictions which have reconsidered the common law rule.Thejury inPlesko returned a $9,950 verdict for the plaintiff. The trial courtfound the verdict excessive and ordered a remittitur of $4,450 which plain-tiff accepted. On appeal, the court held that a plaintiff who has accepted aremittitur is not precluded from obtaining appellate review of such remit-titur when the defendant appeals. The plaintiff's right to cross-appeal waslimited to instances where the defendant has appealed; it was not extendedto allow a direct appeal by the plaintiff. However, Plesko would allow reviewof the remittitur order even though the defendant does not raise the issue ofdamages on appeal' 6s9. E.g., San Bernardino County v. Riverside County, 135 Cal. 618, 67 P. 1047(1902); Plinsky v. Nolan, 65 Or. 402, 133 P. 71 (1913).10. E.g., Florida East Coast Ry. v. Ruckles, 83 Fla. 599, 92 So. 159 (1922);McDaniel v. Hancock, 328 Mich. 78, 43 N.W.2d 68 (1950); Martin v. Jansen, 113Wash. 290, 193 P. 674 (1920).11. E.g., Gough v. Halperin, 306 Pa. 230, 159 A. 447 (1932).12. Note, Civil Procedure-Remittitur-Remitting Parties' Right to Cross-Appeal, 49N.C.L. REv. 141, 143 (1970).13. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. En Banc 1973).14. 550 S.W.2d at 789.15. NEB. REv. STAT. § 25-1929 (1943); N.Y. Civ. PRAc. LAW. § 5501(a)(5) (McKin-ney 1963); TENN. CODE ANN. § 27-118 (1955); TEX. R. Civ. P. 328 (1975).16. Mulkerin v. Somerset Tire Serv., Inc., 110 N.J. Super. 173, 264 A.2d 748(1970); Plesko v. City of Milwaukee, 19 Wis. 2d 210, 120 N.W.2d 130 (1963). For areview of federal court decisions, see Note, Appealability ofJudgments Entered Pursuantto Remittiturs in Federal Courts, 1975 DUKE L.J. 1150.17. 19 Wis. 2d 210, 120 N.W.2d 130, 16 A.L.R.3d 1315 (1963).18. Id. at 220, 120 N.W.2d at 135, 16 A.L.R.3d at 1324.1978]3Baumgart: Baumgart: Civil Procedure--Remittitur--Limited Right of Remitting PartyPublished by University of Missouri School of Law Scholarship Repository, 1978MISSOURI LAW REVIEWConcurring in Means, then Chief Judge Seiler argued for the adop-don of the Plesko rule in Missouri. The language quoted from Pleskoillustrates that the purpose of remittitur in Wisconsin is to avoid thedelay and expense of a new trial or appeal; when a defendant appeals,this purpose is neutralized. What is overlooked is the fact that the statedpurpose of remittitur is not exactly the same in Missouri.' 9 Judge Finchcommented on that point in a separate concurring opinion in Meanswhere he argued against the adoption of the Plesko rule. In that opinionJudge Finch stated that "[t]he remittitur practice never was intended tdserve as a complete answer to all objections raised by a defendant in amotion for a new trial after a plaintiff has obtained a verdict. It wasintended to address only the assertion that the verdict is excessive."' 20If, after the plaintiff has accepted a remittitur, the defendant appeals onissues other than the excessiveness of the damages, the remittitur still servesa useful function in settling the issue of damages. This function is not upsetby the defendant's appeal on other issues. Furthermore, as suggested byJudge Finch, to allow the plaintiff (a nonappealing party) to possibly recoverthe remitted portion of his original verdict when the issue of damages is notraised by the defendant's appeal would serve to penalize the defendant fortaking his appeal and would be unfair.21 If the remittitur has cured anexcessive verdict in the trial court, it has served its function. The defendantstill has a statutory right to appeal the issues he believes deserve attentionwhich were not cured by the remittitur, and it would seem that he should befree to exercise this right without fear of penalty.Therefore, as was approved in Means, to allow the plaintiff to cross-ap-peal the insufficiency of the damages award when the defendant has keptthe issue of damages alive on appeal conforms to the basic purpose of theremittitur practice. Extending this rule further and allowing a cross-appealof the damages issue when the defendant's appeal does not concern damagesmay comport with the Wisconsin rationale of remittitur but not that ofMissouri.AfterMeans v. Sears a plaintiff confronted with a remittitur order in thetrial court will have a new element to consider. If the plaintiff decides toaccept the remittitur, there are three possible courses of events.First, the defendant could be satisfied with the remitted verdict and notappeal, thereby allowing the plaintiff immediate recovery.Second, the defendant could decide to appeal and raise the issue ofdamages; the Means decision permits the plaintiff to seek review of the19. See Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. En Banc 1973) whereit is noted that the remittitur doctrine is useful is keeping damages from exceeding anupper limit of reasonable compensation, and sometimes avoids the granting of newtrials which result in delay, uncertainty, and additional expense.20. 550 S.W.2d at 790 (Finch, J., concurring).21. Id.[Vol. 434Missouri Law Review, Vol. 43, Iss. 1 [1978], Art. 12https://scholarship.law.missouri.edu/mlr/vol43/iss1/12RECENT CASESoriginal remittitur order. The appellate court may approve the remittitur, asinMeans; the court may order a new trial on damages alone or on all issues,22with or without a power in the plaintiff to defeat the order for new trial byaccepting further remittitur; or the court may order reinstatement of part orall of the original jury verdict.23Third, the defendant may appeal on issues other than damages, inwhich case the plaintiff cannot get review of the trial court's remittiturorder.2 4If the plaintiff refuses the remittitur there are two possibilities.First, the plaintiff could undergo a new trial hoping for a verdict whichmeets or exceeds the original damages award.Second, the plaintiff may appeal the order granting a new trial.2 5 If theplaintiff appeals this order and wins, the original verdict may bereinstated.26 Otherwise, there is some indication that the appellate courtcould find that a remittitur was in order, but that the trial court abused itsdiscretion as to the amount, and enter a new verdict.27 If the plaintiff loseshis appeal, a new trial is ordered.2 8 In the case of a lost appeal, the plaintiffmay not then decide to accept the remittitur, except in certain cir-cumstances.29Each of these alternatives has a practical basis for existing, and thewell-reasoned decision in Means v. Sears has not upset the logic underlyingthem. However, the suggested extension of remittitur practice to allow theplaintiff on cross-appeal to complain that the remittitur order was improper,even when the defendant has not raised the issue of damages on appeal, isnot so well supported in reason. This consideration, coupled with the factthat the Missouri Supreme Court already has rejected a more liberal rule,30makes it likely that, if faced with the possibility of adopting the Plesko rule,the court will decline to do so.BRADLEYJ. BAUMGART22. DeMoulin v. Kissir, 446 S.W.2d 162 (St. L. Mo. App. 1969).23. This is the possibility added by Means v. Sears.24. In this situation, then ChiefJudge Seiler would allow review of the remittiturorder. 550 S.W.2d at 792 (Seiler, C.J., concurring).25. § 512.020, RSMo 1969.26. Sanders v. Illinois Central R.R., 364 Mo. 1010, 270 S.W.2d 731 (En Banc1954).27. C. WHEATON, Civil Rules Practice, 17 MISSOURI PRACTICESERIES 562 n.37 (1976).28. Weis v. Wanstrath, 149 S.W.2d 442 (St. L. Mo. App. 1941).29. Deaner v. Bi-State Dev. Agency, 484 S.W.2d 232 (Mo. 1972) (the defendant'sonly argument in favor of sustaining the new trial order was the excessiveness ofdamages); Greco v. Hendricks, 327 S.W.2d 241 (Mo. 1959) (trial court's new trialorder was on inconsistent grounds); Nix v. Gulf Mobile & O.R.R., 362 Mo. 187, 240S.W.2d 709 (1951); Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238S.W.2d 426 (En Banc 1951).30. See note 3 supra.1978]5Baumgart: Baumgart: Civil Procedure--Remittitur--Limited Right of Remitting PartyPublished by University of Missouri School of Law Scholarship Repository, 1978

Civil Procedure--Remittitur--Limited Right of Remitting Party to Cross-Appeal--Means v. Sears, Roebuck & Co.

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Civil Procedure--Remittitur--Limited Right of Remitting Party to Cross-Appeal--Means v. Sears, Roebuck & Co.

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