Berryhill v. Supreme Tribe of Hur
| Decision Date | 21 November 1910 |
| Parties | ARCHIE R. BERRYHILL, Respondent, v. SUPREME TRIBE OF BEN HUR, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
Order affirmed.
Joseph Park for appellant.
(1) The statute requiring the trial court to specify in its order the ground on which a new trial is granted in a law case is a substantial right of the losing party, and that right ought to be accorded. Odelheide v. Land Co., 208 Mo. 239. (2) The discretion of the trial court in granting one new trial does not mean that the order of the court will not be reviewed on appeal. Even when the new trial is granted on alleged finding of facts, whether by the jury or the court sitting as a jury, if the evidence is such that in no view of it could a verdict for the party in whose favor a new trial was granted be sustained, then the ruling of the court will be reviewed on appeal, although it is the first new trial granted. Odelheide v. Land Co., 208 Mo. 239.
John T Barker for respondent.
(1) Trial courts have large discretionary powers in granting new trials especially where the weight of the evidence is involved; and appellate courts will not interfere with the exercise of that power unless it was arbitrary. Gould v St. John, 207 Mo. 619; Rodan v. Transit Co., 207 Mo. 392; Ridge v. Johnson, 129 Mo.App. 541; Canteberry v. Kansas City, 130 Mo.App. 1; Parker v. Britton, 133 Mo.App. 270. (2) This verdict was undoubtedly the result of a misapprehension on the part of the jury and the trial court corrected such mistake and granted plaintiff a new trial, and as the verdict was against the weight of the evidence and the law, this court should adhere to the rule of yielding to the discretion of the trial court. Gould v. St. John, 207 Mo. 619, and cases cited. (3) The verdict in favor of defendant was contrary to all the evidence and should have been for the plaintiff, in fact the trial court should have directed a verdict in favor of the plaintiff, and after the mistake of the jury properly set the verdict aside and ordered a new trial. In doing this the trial court should have the approval of this court. Rodan v. Transit Co., 207 Mo. 392, and cases cited.
This action is based on a benefit certificate of insurance on the life of plaintiff's wife and payable to him at her death. The verdict of the jury in the trial court was for the defendant. Plaintiff's motion for a new trial was sustained and thereupon defendant appealed from that order.
The certificate was taken out by Mrs. Berryhill in October, 1908 and she died in about three months thereafter, January 19 1909. The condition of payment of the certificate was that she should be a member of the association, in good standing, at the time of her death; and the...
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