July 10, 1950.
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, W. M. DINWIDDIE, J.
Alexander, Ausmus Harris and Warren D. Welliver, all of Columbia, for appellant.
Watson, Ess, Whittaker, Marshall Enggas, Kansas City, Clark, Boggs, Peterson Becker, Columbia, for respondent.
Frank Steckdaub (hereinafter called plaintiff) sued Walter Sparks (hereinafter called defendant) for $10,000 for personal injuries. The jury's verdict was for defendant. From the judgment entered plaintiff appealed here.
Defendant was a practicing Doctor of Osteopathy in Columbia, Missouri. The petition alleged that, on November 4, 1947, plaintiff was in defendant's office to have a professional treatment; that in the course of such treatment "defendant placed plaintiff on a table and said table was caused to fall, as a result of the carelessness and negligence of the defendant." It was further alleged that the table from which plaintiff fell was "in the exclusive possession and under the exclusive control of the defendant," and that plaintiff sustained personal injuries.
Plaintiff's only contention in this court is that his motion for new trial "* * * should have been sustained because there is no substantial evidence to support the verdict of the jury." That contention seems based upon plaintiff's argument that of necessity the jury must have found either that (1) defendant was not negligent, or (2) that plaintiff was not injured; but that, as to (1) or (2) above, there was no evidence of either, and the jury were thus precluded from finding a verdict for defendant, and were thus compelled to find for plaintiff, if only for nominal damages. Plaintiff concedes that if there is any evidence before us that defendant was not negligent or that plaintiff was not injured, an appellate court cannot weigh the evidence, and that we must, therefore, affirm the judgment. Plaintiff cites 15 Am.Juris., Damages, pp. 392, 395; Scroggins v. Metropolitan St. Ry. Co., 138 Mo.App. 215, 120 S.W. 731, 733; Mason v. Down Town Garage Co., 227 Mo.App. 397, 53 S.W.2d 409, 413; and Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071, 1072.
In each of the three just above cited cases the verdict of the jury was for the plaintiff. Under the contention made here, that fact alone sufficiently distinguishes them. In those cited cases where plaintiffs recovered the court merely reiterated the well-known rule that verdicts for plaintiffs which were unsupported by substantial evidence would not be permitted to stand. The cited American Jurisprudence text merely states the rule as to the right to recover nominal damages.
But here a wholly different situation obtains for the jury's verdict was for the defendant. And under these circumstances it is not material whether there was any evidence at all favorable to defendant. Here the plaintiff did not persuade the jury to return a verdict for him in any amount. Even though plaintiff introduces evidence which would warrant a verdict in his favor, he must further persuade the jury to return a verdict for him. An appellate court may not reverse, or reverse and remand, under these circumstances for the jury must first believe plaintiff's testimony and return a verdict in plaintiff's favor.
In Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, of a similar contention under similar circumstances, we said: "The sufficiency of the evidence to support the verdict in defendant's favor is not an open question in this court; therefore we need not concern ourselves about what the evidence showed in that regard. The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968, 47 S.W. 907, 43 L.R.A. 505; Ford v. Wabash Ry. Co. et al., 318 Mo. 723, 300 S.W. 769, 777, 778; State ex rel. Missouri Gas Electric Service Co. v. Trimble et al., 307 Mo. 536, 271 S.W. 43, 47, and cases cited; Schroeder v. Chicago A. Ry. Co., 108 Mo. 322, 18 S.W. 1094, 18 L.R.A. 827."
In Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, we said: "* * * a verdict for defendant need not be supported by affirmative, substantial evidence tending to show that defendant was not guilty of negligence, because the burden was not on defendant to acquit himself of the charge of negligence." See also State v. Gomer, 340 Mo. 107, 101 S.W.2d 57; Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 179 S.W.2d 39, 43; Conley v. Crown Coach Co., 348 Mo. 1243, 159 S.W.2d 281; and Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985.
The judgment of the trial court is affirmed.
VAN OSDOL and ASCHEMEYER, CC., concur.
The foregoing opinion by LOZIER C., is adopted as the opinion of the court. All concur.