# Means v. Sears, Roebuck & Co.

> Supreme Court of Missouri · May 12, 1977 · 550 S.W.2d 780

URL: https://www.frixlaw.com/law-library/cases/9769566

## Case

- **Full name:** Robert MEANS, Respondent, v. SEARS, ROEBUCK AND COMPANY, a Corporation, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** May 12, 1977
- **Citations:** 550 S.W.2d 780; 1977 Mo. LEXIS 197
- **Precedential status:** Published
- **Opinion:** Concurrence by Finch
- **Judges:** Morgan, Bardgett, Henley, Donnelly, Finch, Seiler, Rendlen
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769566

## How later opinions describe it (automated extraction)

- explaining that fairness demands court be allowed to review excessiveness of remittitur as well as inadequacy when appellant-defendant requests further remittitur
- explaining that fairness demands court be allowed to review excessiveness of *587 remittitur as well as inadequacy when appellant-defendant requests further remittitur

## Opinion text

FINCH, Judge,
concurring.
I concur in the principal opinion. I file this separate opinion only because Chief Justice Seiler has filed a separate opinion in which he advocates complete abolition of the Carver rule, thereby permitting a plaintiff, after entry of a remittitur, to seek to have the verdict reinstated if defendant appeals, even if defendant has not sought additional remittitur on appeal. That question need not be reached in this case because defendant sought additional remitti-tur on appeal. However, since the chief justice has set forth the argument for completely abolishing the rule in some later case, I have concluded that, in order to give the whole story, I should set forth reasons why that should not be done.
The opinion of the chief justice is premised on the theory that if a plaintiff enters a remittitur and defendant then appeals, it is unfair if plaintiff is not permitted to seek to take back the remittitur in the appellate court even if the amount of the judgment is not made an issue by the appealing defendant. This is so, he argues, because defendant makes the remittitur on the basis of an expectation that defendant will not appeal but instead will pay the judgment promptly.
In my view, the foregoing premise is not sound. Plaintiff may have a hope that defendant will pay the judgment rather than appeal but there is no reasonable basis for him to rely on an expectation that defendant will not appeal. When a defendant files a motion for new trial, asserting that the verdict is excessive and that for other reasons there should be a new trial or an outright reversal, he is not saying expressly or by implication that if the trial court finds the verdict to be excessive and orders a new trial for that reason unless a remitti-tur is entered, he will forego all other grounds for outright reversal or a new trial nor is there anything in the action of the trial court which says or implies that defendant is expected to forego an appeal and pay the judgment if the remittitur is made.
The remittitur practice never was 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. It was intended to address only the assertion that the verdict is excessive. The trial court’s order says only that if plaintiff makes the remittitur the defendant’s motion for new trial will be overruled but if not made, the court will grant a new trial on the basis that the verdict was excessive.
When a trial court conditions its action on a motion for new trial on whether plaintiff remits some portion of the amount fixed in the jury’s verdict, the plaintiff has three options. First, he may decline to make the remittitur and, after a new trial is ordered, simply proceed to retry his case. Secondly, he can decline to make the remittitur and, after the trial court orders a new trial on the basis that the verdict is excessive, he may appeal and test that order. That was the course followed by plaintiff in Deaner v. Bi-State Development Agency, 484 S.W.2d 232 (Mo. 1972). Plaintiff’s third alternative is to make the remittitur and thereby get the trial court to overrule defendant’s motion for new trial. If the latter course is followed, plaintiff secures a denial of a new trial on the basis of exces-siveness and eliminates any question as to the amount of his recovery unless defendant on appeal seeks additional remittitur. He does not eliminate other grounds for relief raised by defendant.
*791 Defendant, after verdict in favor plaintiff, has a statutory right of appeal if not granted a new trial or an outright reversal by the trial court. If, for example, defendant claims that he is entitled to an outright reversal because plaintiff failed to make a submissible case, or claims that an erroneous instruction dictates a new trial, those objections are not answered by a reduction in the amount of the verdict by remittitur. Defendant is entitled to have those questions reviewed on appeal. If, on that appeal, defendant raises no further question as to the amount of the judgment, he should not be penalized for taking an appeal by having the appellate court say: Because you appealed, we will let plaintiff (a non-appealing party) attempt to take back the remittitur and inject into the appeal the issue as to the amount of the recovery, even though such an issue is not raised by the only appealing party. To do this is unfair to defendant. It swings the pendulum too far. It raises a question of whether such a practice might deprive defendant of equal protection of the law. It most certainly is unusual and extraordinary to penalize an appellant by saying to him that if you appeal, we will permit the respondent to inject into the appeal an issue not raised by appellant and will permit the non-appealing respondent to obtain affirmative relief on the issue so injected. of
In supporting his thesis that the present rule is wholly unfair, even if defendant seeks no further remittitur on appeal, the chief justice quotes from the opinion of then Chief Judge Smith in Best v. Fred Weber Construction Co., 525 S.W.2d 102, 108-109 (Mo.App. 1975). However, Judge Smith said more than the sentence quoted. Having observed that defendant appealed after the remittitur, raising as its dominant point that the judgment continued to be excessive, he said this:
“ * * * In short, defendant has the benefit of the remittitur, an opportunity to reduce the judgment even more, delay in payment of the judgment, and no risks or adverse consequences from taking an appeal. 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.
“I entertain serious doubt that the re-mittitur entered by the trial court was warranted, at least in part and possibly in toto. If we are going to continue to permit appellate courts to entertain requests for additional remittitur then we should place the gamble for such appeals equally on the parties. Where a defendant has sought and received a remittitur from the trial court, which has been accepted by the plaintiff, such acceptance should not preclude an appellate court from examining the propriety of the re-mittitur where the defendant thereafter appeals. When the defendant elects to place before this court the amount of the damages by asking for additional remitti-tur, we should not be limited to deciding whether the action of the trial court was inadequate but should decide also whether it was excessive. * * * ” (Emphasis supplied.)
The unfairness spoken of by Judge Smith was in those cases wherein defendant seeks additional remittitur in the appellate court. This is apparent by the language italicized.
For the reasons indicated, I do not favor overruling completely the rule of the Carver and Webb cases. Doing so in the case now before us, where defendant seeks additional remittitur, thereby injecting an issue as to the amount of recovery into the appeal, can be justified. It would not be justified, and would be very unfair to defendant, to abolish the rule completely so as to permit plaintiff to raise the issue and obtain affirmative appellate relief on an issue not raised in that appeal by defendant appellant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769566. Public record. Not legal advice.