Septowski v. St. Louis Transit Company

Citation83 S.W. 286,108 Mo.App. 307
PartiesSEPTOWSKI, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Decision Date15 November 1904
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis City Circuit Court.--Hon. M. N. Sale, Judge.

From an order granting a new trial defendant appealed.

AFFIRMED.

Order affirmed and cause remanded.

Sears Lehmann, with Geo. W. Easley, for appellant; Boyle, Priest & Lehmann of counsel.

(1) They were not addressed to the jury but were made to counsel in an argument about an objection of counsel to the admission of evidence, and were not prejudicial. Roseberry v Nixon, 58 Hun 121; Railway v. Milk Co., 175 Ill. 557; State v. Mussick, 101 Mo. 260, 14 S.W 212; Green v. Tune, 16 Ala. 541; Hill v Corcoran, 15 Colo. 270, 25 P. 171; Railroad v Palmer, 89 Ga. 161, 15 S.E. 34; Railroad v. Barnum, 107 Ill. 150; Carmac v. White Bronze Co., 77 Ia. 32, 41 N.W. 480; Dodge v. Brown, 22 Mich. 446. (2) Even if the remarks were prejudicial, they are not grounds for a new trial, because one cannot sit passively by and take his chances on a verdict, and on losing on this chance for the first time object to the conduct of the court. Any objections to the conduct of the court must be made at the time of such conduct, and the court given a chance to correct its error, if such there was. Cane v. Smythe, 3 Kan.App. 607, 45 P. 247; Haug v. Haugan, 51 Minn. 558, 53 N.W. 874; Railroad v. Arnold, 13 Neb. 485, 14 N.W. 478; Gaudeth v. Travis, 11 Nev. 149; Fraim v. Ins. Co., 170 Pa. 151, 32 A. 613; Railway v. Browsare, 75 Tex. 597, 12 S.W. 1126; Earles v. Begily, 7 Wash. 581, 35 P. 390; McCormick v. Heletman, 48 Wis. 643, 4 N.W. 798; Kennedy v. Hollady, 25 Mo.App. 503; Nichols v. Metzger, 43 Mo.App. 607; State v. Forsythe, 89 Mo. 667; State v. Dyson, 39 Mo.App. 297.

J. Hugo Grimm for respondent.

Courts of common law jurisdiction have for several hundred years exercised the right to set aside a verdict and grant a new trial. Bartling v. Jamison, 44 Mo. 143. The general rule is that the granting of a new trial rests largely in the sound discretion of the trial court, which has authority not only to grant a new trial for reasons not stated in the motion, but may even grant a new trial of its own motion, and its judgment will not be interfered with, unless there is a clear abuse in its exercise. Farrell v. Transit Co., 103 Mo.App. 457; Rickroad v. Martin, 43 Mo.App. 603; Ansor v. Smith, 57 Mo.App. 584; Lovell v. Davis, 52 Mo.App. 342; Simpson v. Blunt, 42 Mo. 544; Eidenmiller v. Kump, 61 Mo. 340; Leahy v. Dugdale, 41 Mo. 517; 1 McQuillan on Pl. & Pr., sec. 901.

OPINION

GOODE, J.

This is an appeal from an order of the circuit court sustaining respondent's motion, after a verdict against him, for a new trial. The action, which is for damages done to property by collision with a street car, was previously in this court and the facts may be collected from the decision then rendered. 102 Mo.App. 110, 76 S.W. 693. The learned circuit judge gave this reason for sustaining the motion: In his opinion the jury was prejudiced or influenced by remarks made by the court during the trial. The appellant insists that nothing was said by the court which could have influenced the jury against the respondent's case. The remarks referred to were made during a discussion between the court and counsel concerning Septowski's competency as a witness and whether his suit should abate, he having been convicted of a felony and sentenced to the penitentiary since the first trial. The order for a new trial does not point out any particular expression which was supposed to have had the prejudicial effect. Septowski was brought before the court by a writ of habeas corpus to testify. He was in the custody of the sheriff of the city of St. Louis and confined in the city jail at the time, not having been taken to the penitentiary. The petition for the writ of habeas corpus stated that Septowski was confined in jail on the charge of having assaulted his wife with intent to kill her. We gather that the circuit judge understood when he issued the writ, that Septowski had not yet been brought to trial. In fact the judge stated that he would not have granted the writ had he known of the respondent's conviction. This statement was subsequently qualified on the court's attention being called to a statute. There was a prolonged argument or conversation between ...

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