Noren v. American School of Osteopathy

Decision Date07 February 1928
Docket NumberNo. 19495.,19495.
Citation2 S.W.2d 215
PartiesNOREN v. AMERICAN SCHOOL OF OSTEOPATHY.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Knox County; James A. Cooley, Judge.

Action by Pete O. Noren against the American School of Osteopathy. Judgment for plaintiff, and, from orders granting defendant's motions for new trial and for an amendment nunc pro tunc of defendant's bill of exceptions, plaintiff appeals. Former opinion (298 S. W. 1061) withdrawn, orders reversed, and cause remanded, with directions.

C. D. Stewart, of Edina, for appellant.

S. H. Ellison and Higbee & Mills, all of Kirksville, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff, while receiving certain osteopathic treatments at the hands of one Elmer C. Abramson, a senior student of defendant, American School of Osteopathy, an institution located in the city of Kirksville, Mo., and engaged in the business of teaching and practicing the science of osteopathy. A trial was had to a jury, resulting in a verdict for plaintiff in the sum of $3,500. In due course, a motion for a new trial, filed by defendant, was sustained by the court, upon the ground of error in the giving and refusal of certain instructions, from which order plaintiff perfected his appeal.

The case is now before us on rehearing. Our first opinion, reversing the order granting a new trial, and remanding the cause with directions to reinstate the verdict of the jury and the judgment rendered thereon, was handed down on November 8, 1927, and was unofficially reported in 298 S. W. 1061. Subsequently, additional complications developed in the status of the case, in view of which it became necessary to reinstate and sustain defendant's motion for rehearing, and withdraw our former opinion. Thereafter the case was reargued and resubmitted, whence follows the present opinion,

The order of the lower court, sustaining defendant's motion for a new trial, was based upon the ground of error in the giving of instruction No. 1 for plaintiff, and the refusal of instruction No. 5, requested by defendant. As the case first came to us, the bill of exceptions did not show that in either of such instances an exception had been saved by defendant to the adverse action of the court; but, inasmuch as no point was attempted to be made of such failure on the first submission of the case, our prior opinion was necessarily silent upon the question. However, pending resubmission, learned counsel for defendant, out of an abundance of caution, filed in the circuit court their motion asking that the bill of exceptions be amended nunc pro tunc, so as to show that timely exceptions had in fact been saved. After a hearing on such motion, the court entered its order sustaining the same, from which plaintiff has appealed; and, by agreement of respective counsel, such appeal may be disposed of, together with the appeal from the order granting the new trial, in this one opinion.

Addressing ourselves first to the propriety of the amendment nunc pro tunc, we observe that defendant, in support of its motion, and at the hearing thereon, asked the court to take judicial notice that, at the time of the trial of the case, it was the rule and practice of the court that all adverse rulings were to be regarded as excepted to by the party against whom such rulings were made, and that the stenographer and the party preparing the bill of exceptions should show such exceptions as having been saved. While conceding that such rule and practice had been in effect, the court refused to take judicial notice of the fact. Thereupon defendant sought to prove the rule by oral testimony, to which offer an objection was sustained. Finally, the motion for a new trial, reciting, in substance, that the court had erred in the giving of each and every instruction for plaintiff, and in the refusal of each and every instruction requested by defendant, together with the order of the court sustaining such motion for the reasons therein assigned, were introduced in evidence; and it was solely upon the basis of such records that the court allowed the amendment to be made.

No extended discussion of the right of a trial court to amend its records in essential respects, so as to make them speak the truth, will be necessary. We observe in this proceeding that the court well understood that where, in an original bill, exceptions to adverse rulings were not noted as having been saved, the bill of exceptions cannot be amended after the end of the term, as was the case here, by an order nunc pro tunc to show the exceptions saved, unless such amendment is warranted by some record entry, or is evidenced by some written notation in the files. Thus the amendment may not be made at a subsequent term upon matters resting merely in the memory of the judge, nor upon parol proof by others; but, to the contrary, something must appear in the bill itself, the judge's minutes, the clerk's entries, the stenographer's notes, or some proper paper in the case, to form the basis for the allowance of an amendment nunc pro tunc. Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S. W. 927; Ross v. Kansas City, F. S. & M. R. Co., 141 Mo. 390, 38 S. W. 926, 42 S. W. 957; Coy v. Landers, 146 Mo. App. 413, 125 S. W. 789; Brown & Biglow v. Heier (Mo. App.) 194 S. W. 1070; State ex rel. Cammann v. Tower Grove Turn Verein (Mo. App.) 206 S. W. 242; Ramsey v. City of Poplar Bluff (Mo. App.) 286 S. W. 159.

It is equally well established that, where no exceptions were actually saved, and the bill recited no exceptions saved, the trial court is not authorized to amend the bill nunc pro tunc by reason of the fact that it had in force a rule which did not require exceptions to be saved, and to the effect that exceptions were deemed to be saved to any adverse ruling of the court. Reed v. Colp, 213 Mo. 577, 112 S. W. 255; Green v. Terminal Railroad Ass'n, 211 Mo. 18, 109 S. W. 715; State ex rel. Cammann v. Tower Grove Turn Verein, supra. In this connection, however, it is well to mention that the situation now confronting us must not be confused with that before the Supreme Court in the case of State ex rel. Brockman Mfg. Co. v. Miller, 241 S. W. 920, wherein the validity of such a rule was upheld. The distinction to be made between the two situations is apparent. The one is a case where the bill shows no exceptions to have been saved, and it is sought to have the bill amended by reason of the rule. The other is a case where the bill shows that exceptions were duly saved, but nevertheless the right of the appellate court to consider what is actually disclosed in the bill is questioned, on the ground that a rule permitting a blanket saving of exceptions to all adverse rulings is invalid and in contravention of statute.

Manifestly the discussion heretofore has been largely by way of elimination, and for the purpose of clarifying the issues. We are now brought directly to the question of whether, in contemplation of law, the motion for a new trial was such a paper in the case as to be the basis for the amendment allowed by the court. The answer must be in the negative. As a matter of fact, the motion for a new trial did not recite that exceptions had been saved by defendant to the giving and refusal of instructions; but, even if it had, the result would be the same, for the reason that a statement in a motion as of a fact is not evidence of the thing stated. Such is the undoubted rule. Manthey v. Kellerman Contracting Co., supra; Dougherty v. Whitehead, 31 Mo. 255; Keet & Rountree Dry Goods Co. v. Williams (Mo. App.) 202 S. W. 620.

Consequently, since that character of evidence was not introduced which could justify the correction of the bill, it follows that the order of the court allowing the amendment was improvidently made; and we are thus left to consider the appeal from the order granting a new trial in the light of the record as it was originally brought to us.

The peculiar feature of this case, however, is that, despite the unsuccessful efforts of defendant to have the bill of exceptions corrected in the manner sought, no right of review has been foreclosed to it, inasmuch as the trial court has the right, in the proper exercise of its discretionary power, to grant a new trial on account of any erroneous ruling, whether excepted to or not. Bradley v. Becker, 296 Mo. 548, 246 S. W. 561; Manthey v. Kellerman Contracting Co., supra; Owens v. Kansas City, C., C. & St. J. Ry. Co. (Mo. Sup.) 201 S. W. 548, 550; Green v. Terminal Railroad Association, supra; Schuette v. St. Louis Transit Co., 108 Mo. App. 21, 82 S. W. 541; Richter v. United Rys. Co., 145 Mo. App. 1, 129 S. W. 1055; Nulton v. Croskey, 111 Mo. App. 18, 85 S. W. 644.

The above authorities hold, as we read them, that it is only where the appellate court seeks to sustain the grant of a new trial upon some ground not specified by the lower court (the reason given by the latter having been found insufficient) that it is precluded from considering such other reason, unless an exception was saved by the complaining party at the time of the adverse ruling. Otherwise stated, in order that the respondent on appeal may have the benefit of errors assigned in his motion for a new trial, but not designated by the trial court as grounds for sustaining the motion, the record must show that the respondent duly excepted at the time to the rulings on which he predicates his assignments of error. Consequently, so far as concerns the giving of instruction No. 1 for plaintiff, and the refusal of instruction No. 5, requested by defendant, we are not only at liberty, but it is our duty, to review the propriety of the order granting the new trial, even though there were no exceptions saved, inasmuch as the court pointedly placed its ruling upon such grounds.

Directing our attention, therefore, to what we may...

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