Baughman v. Fulton

• Decision Date: 08 June 1897
• Citation: 41 S.W. 215,139 Mo. 557
• Parties: BAUGHMAN v. FULTON.
• Court: Missouri Supreme Court

41 S.W. 215

139 Mo. 557

BAUGHMAN v. FULTON.

Supreme Court of Missouri, Division No. 2.

June 8, 1897.

APPEAL — REVIEW — AWARD OF NEW TRIAL.

The burden is upon a party to show error in the order of a court setting aside a verdict, and granting a new trial, for the reason that the verdict is against the evidence; and where, by such party's own showing, the evidence was conflicting with respect to a material issue, the rulings of the lower court will not be disturbed.

Appeal from circuit court, Platte county; William S. Herndon, Judge.

Suit by T. M. Baughman, public administrator, against William J. Fulton. From an order setting aside the verdict, and granting a new trial, defendant appeals. Affirmed.

A. D. Burnes and Jas. W. Coburn, for appellant. L. T. Collier, for respondent.

BURGESS, J.

This case was before this court on a previous occasion (134 Mo. 653, 36 S. W. 230), on plaintiff's appeal. The judgment was then reversed, and the cause remanded, because of error of the court in refusing the first and fifth declarations of law prayed for by plaintiff. On the last trial, plaintiff recovered a verdict for $208, which was, upon his motion, set aside, and a new trial granted. From the order of the court setting aside the verdict, and granting plaintiff a new trial, defendant appeals. Since the case was submitted on briefs for decision by the respective parties, the death of the plaintiff, Evans, has been suggested of record, and the suit revived on the ___ day of March, 1897, by an entry of record in the name of T. M. Baughman, public administrator, who entered his appearance. There are seven specific grounds assigned, in plaintiff's motion for a new trial, why the verdict of the jury should be set aside, and a new trial granted him, among which are the following, to wit: "Because the verdict is contrary to the law and the evidence." "Because the verdict is against the weight of the evidence." But, as the record shows that the motion was "sustained for the reason that the verdict of the jury is against the evidence," the other grounds are immaterial.

The only question for decision is the alleged error in awarding plaintiff a new trial. Trial courts have large discretion in the matter of granting new trials, especially upon the weight of the evidence; and this court will not interfere with such discretion unless it be made to appear that it was improvidently exercised. The presumption in this case, as in all others, was in favor of the verdict as long as it was permitted to stand; but, when it was set aside by order of the court, this presumption was overcome, and the presumption thereafter is to be indulged in favor of the action of the court in setting it aside, and that it was, as specified in the order on the record, "against the evidence." This being the case, the burden is upon defendant of showing that the court committed error in granting the new trial upon the ground stated. Hewitt...