Stith v. St. Louis Public Service Co.

HYDE, P.J.

(concurring). — Judge Lozier’s opinion in holding that both parties may appeal, from the order granting a new trial on the issue of damages only, follows the spirit of our code, namely that "it shall be construed to secure the just, speedy, and inexpensive determination of every action.” (Sec. 506.010; all statutory references are to RSMo 1949, YAMS.) However, I do not think the defendant’s right of appeal, in such a case as this, should be limited to the fortuitous circumstance of the Court ordering a new trial of its own initiative, which would have to occur "not later than 30 days after the entry of judgment.” (Sec. 510.370)

It is provided by Sec. 512.020 that "any party to a suit aggrieved * * # may take his appeal * # * from any order granting a new trial.” The order herein involved (whether considered as being made on the authority of the Court’s own initiative or on the authority of defendant’s motion for a new trial) was an order granting a new trial and, therefore, was appealable [703] by anyone aggrieved by it. Thus the decisive question as to defendant’s right to appeal herein is: was defendant aggrieved by this order ?

In Fenton v. Thompson, 352 Mo. 199 , 176 S. W. (2d) 456 , we approved statements from Kinealy v. Macklin, 67 Mo. 95 , and Scott v. Parkview Realty & Imp. Co., 241 Mo. 112 , 145 S.W. 48 , as follows: "A party cannot be said to be ‘aggrieved’ unless error has been committed against him”; and "a party cannot appeal from a judgment that is wholly in his favor, one that gives him all he asks; but he may appeal from a judgment that gives him only a part of what he sues for.” In the Fenton case the Court permitted a voluntary dismissal by the plaintiff after the case had been submitted to the jury. The Fenton case was decided under the old code but in upholding defendant’s right to appeal from this judgment of dismissal, we said: "Appellant here complains of a final judgment of dismissal of a cause instituted against him. The judgment of dismissal, not being ‘with prejudice,’ or on the merits, was necessarily ‘without prejudice.’ While the judgment on its face appears to be in appellant’s favor, yet if, under the eircum *458 stances shown by the record, the appellant was entitled, as a matter of law, to a judgment of dismissal ‘with prejudice’ or on the merits, barring- a further prosecution of the cause, and, if the judgment entered does not so provide, then error, in prejudice of appellant’s substantial rights, has been committed against, him, in that he did not receive all to which he was legally entitled.” (See also State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905 , 180 S. W. (2d) 40 ; State ex rel. Yale University v. Sartorius, 349 Mo. 1039 , 163 S. W. (2d) 981 ; St. Louis & S.F.R. Co. v. Evans & Iioward Fire Brick Co., 85 Mo. 307 .)

I think defendant’s situation in this case is very similar. It is true that defendant asked for a new trial but it asked for a complete new trial on all the issues involved and alleged error on the issue of its liability. It did not want a new trial on the measure of damages only, which would be based on a final adjudication that it was liable to plaintiff. Defendant was contending for a retrial of the issue of its liability on the ground there was prejudicial error committed against it (which our opinion finds to be true) in determining that issue. It is, therefore, my conclusion that defendant was “aggrieved” by the order of the trial court granting a new trial on damages only and would be entitled to appeal even if the order were made more than 30 days after -the entry of judgment and based on an assignment in defendant’s motion for new trial. A defendant does not get what he asks for by such an order and, if he is entitled to a new trial on the issue of liability because of error committed against him, the order does not give him all to which he is legally entitled. In this situation, error, in prejudice of his substantial rights, has been committed against him. The result of refusing an appeal in these circumstances would usually be harmful to both parties. There could be the delay and expense of a trial on the measure of damages which might be a useless waste of time and money, because on appeal by defendant from the final judgment thereafter entered as to both liability and damages, we would have to reverse the judgment and order another new trial at least on the issue of liability. In any event, the expense and delay incident to another judgment and a new appeal would be involved. This is the very situation that was intended to be avoided when the statute was amended to provide for an appeal from an order granting a new trial.

.“The motion for new trial is the basic after trial motion under our Code to preserve trial errors for appellate review.” Hughes v. St. Louis National League Baseball Club, 359 Mo. 993 , 224 S. W. (2d) 989 . I think it is in harmony with our ruling in that case and the provisions of Sec. 512.160 for this Court to consider, on defendant’s appeal herein, all of the alleged procedural errors raised in its motion for new trial; and to decide them for the purpose of *459 giving or directing tbe entry of tbe correct judgment required to dispose of the case. Even under the old code, we held that on appeal from an order granting a new trial the “case is for review [704] the same as if here after final judgment” with authority, for the purpose of lessening expense and ending litigation, to “remand the cause and direct the trial court as to a disposition of the case.” (Cole v. St. Louis-S.F. Ry. Co., 332 Mo. 999 , 61 S. W. (2d) 344 ; For cases so holding under the new code, see Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066 , 238 S. W. (2d) 426 ; Nelson v. Kansas City, 360 Mo. 143 , 227 S. W. (2d) 672 ; Atlantic Nat. Bank v. St. Louis Union Trust Co., 357 Mo. 770 , 211 S. W. (2d) 2 .) I, therefore, concur in the opinion of Lozier, 0., as to the ruling that defendant had the right of appeal and as to the disposition of the case therein ordered.

Dalton and Hollingsworth, JJ., concur.