Morris v. Kansas City

• Decision Date: 05 February 1906
• Parties: MORRIS v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

92 S.W. 908

117 Mo. App. 298

MORRIS v. KANSAS CITY et al.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

NEW TRIAL — GROUNDS — VERDICTS AGAINST EVIDENCE—DISCRETION OF COURT.

Whether or not there is any conflict in the evidence, the trial judge has a supervisory power over verdicts, and may, in the exercise of a sound discretion, affirm or set them aside in the interest of justice, and should do so if they are against the preponderance of the evidence or are for the wrong party as a matter of law.

Appeal from Circuit Court, Jackson County; Shannon C. Douglass, Judge.

Action by John H. Morris against the city of Kansas City and another. From an order setting aside a verdict and judgment for defendants and granting a new trial, defendant named appeals. Affirmed.

Edwin C. Meservey, City Counselor, and W. H. H. Piatt, Associate City Counselor, for appellant. Charles R. Pence, for respondent.

BROADDUS, P. J.

The plaintiff, Morris, brought this suit, as the husband of Sarah H. Morris, to recover damages sustained by him on account of injury to his said wife, the result of a fall into an unguarded excavation in a public street of the city. The wife had previously recovered judgment for her injury against these defendants in the circuit court of Jackson county, which had been paid. The plaintiff pleaded said judgment as res adjudicata in respect to the injury to his wife, the negligence of defendants, and the absence of contributory negligence on her part. The trial was conducted upon the theory that the judgment in the said suit of the wife established the defendants' liability, according to the holding in Brown v. Mo. Pac. Ry. Co., 96 Mo. App. 164, 70 S. W. 527. And "every question of fact that could arise in the present case was determined in that, except as to the kind and quantum of damages to which the plaintiff was entitled."

Defendants contend that in addition to the injuries alleged in the suit of the wife were included in the petition herein injuries to her side and back. That could make no difference as to defendants' liability, and plaintiff was required to prove the allegation, and the matter was contested by evidence introduced upon the part of defendants. Its only effect was upon the question of damages. The verdict and judgment were for the defendants. Plaintiff filed a motion for new trial, which was sustained on the ground that "under the evidence and law, as declared by the court, the plaintiff was entitled to a verdict for some amount," being a ground assigned for a new trial.

Instruction No. 1, given for plaintiff, tells the jury that the judgment of the former suit of the wife establishes the negligence of defendants and the absence of contributory negligence on her part in relation to the injuries she received; and "that if the jury find that plaintiff is, and was, at the time of said injury the husband of said Sarah H. Morris, and that he has suffered any damage or incurred any expenses by reason of the injury to his said wife as defined in another instruction given, then your finding...