Aetna Insurance Company v. Missouri Pacific Railway Company
| Decision Date | 04 February 1907 |
| Citation | 100 S.W. 569,123 Mo.App. 513 |
| Parties | AETNA INSURANCE COMPANY et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
REVERSED AND REMANDED (with directions).
Fyke & Snider and Reed, Yates, Mastin & Howell for appellants.
(1) This being an appeal from the order of the trial court granting a new trial of this cause for the sole reason specified in the record that the court erred in permitting attorneys for plaintiffs in their argument to make statements not warranted by and in conflict with the evidence of the case, no other ground in support of the court's action can be considered on this appeal. Folding Bed Co. v Railroad, 148 Mo. 486. (2) The court committed error in granting a new trial of this cause for the reason assigned unless it can be said, first, that the argument of counsel excepted to, was clearly in conflict with the evidence in the case, and further that such argument was prejudicial to the rights of the defendant company. We deem no citation of authority necessary in support of these obvious propositions.
Elijah Robinson and Harris Robinson for respondent.
(1) However, even if it should be held that the trial court committed error in sustaining the motion upon the ground assigned, still if it appear to this court that the motion should have been sustained upon any of the other grounds set forth in the motion, the judgment of the trial court will be affirmed. Lovell v. Davis, 52 Mo.App. 324; Hewitt v. Steele, 118 Mo. 463; Bank v Wood, 124 Mo. 72; Milling Co. v. Transit Co., 122 Mo. 269. (2) The question as to whether a new trial should have been granted in this case on the seventh ground set forth in the motion, was one resting largely in the discretion of the trial court, and his ruling on that point will not be reversed unless it clearly appear to this court that such discretion was abused. Ins. Co. v. Goodrich, 74 Mo.App. 355; Bemis Bag Co. v. Com. Co., 74 Mo.App. 672; Suddarth v. Lime Co., 79 Mo.App. 585; Farrel v. Transit Co., 103 Mo.App. 454; Coleman v. Cole, 96 Mo.App. 72; Choquette v. Railroad, 152 Mo.App. 257. (3) The court committed error in permitting plaintiffs' witnesses to testify that on other occasions, without any limitation as to time, condition of engine, kind of train or other circumstances, engines had emitted sparks. The motion for new trial should have been sustained for that reason. (4) The court also committed error in excluding the testimony of Mr. Jones, to the effect that spontaneous combustion was more liable to occur in elevators than in other buildings. (5) The court committed error in refusing instruction E asked by defendant. (6) The court also committed error in refusing instruction F asked by defendant.
Strohm & Jones owned grain in an elevator near by the railway tracks of defendant at Palmer, Kansas. They had insurance on the grain in the plaintiff companies. The elevator and grain were destroyed by fire and the plaintiffs in consequence were compelled to pay to them twenty-five hundred dollars. Plaintiffs claimed that the fire was occasioned by escaping sparks from one of defendant's engines, negligently constructed, and that they, by paying Strohm & Jones, became subrogated to their right of action against defendant. [Insurance Company v. Railway, 74 Mo.App. 106; Insurance Company v. Railway, 149 Mo. 165.] Defendant denied that it set the fire and hence the present suit by the insurance companies. There was a trial and verdict for the plaintiffs in the lower court, but, on the motion of defendant, a new trial was granted and from that order plaintiffs prosecuted this appeal.
The new trial was granted on the ground, as stated by the court, that one of the counsel for the plaintiffs misstated the evidence in his argument to the jury. It may be conceded that a willful perversion by counsel of evidence materially affecting the merits of the case, without being followed by some curative action by the court, could be carried to such extreme as to justify the court in setting aside a verdict. But it ought to be apparent that an attorney has a right to state the evidence in his argument as he understands it, and so he should be permitted to draw his own conclusions therefrom and state them to the jury. It would be a safe assertion to say that there are few contested cases where the attorney for one party or the other (often both) has not made statements of the evidence which the actual fact would not substantiate. The jury hear the evidence as well as the argument of the counsel and a misstatement by the latter is not, ordinarily, to be presumed to have escaped their attention. But in this case there was no misstatement. The trial court had nothing upon which to base a conclusion that there was; and consequently was without any right to interfere with the verdict upon that ground.
There was evidence tending to prove the weather to have been exceedingly dry. That the elevator had a shingle roof. That there was a smaller structure, called a cupola, by some witnesses, which arose from and extended up higher than the main structure. The evidence further tended to prove that the elevator was at a station and near by the defendant's track and was about at the place where the engine would be when the train was at the station. That the time for the train going east to arrive at this station was near half after eleven o'clock at night. That, on the night in question, the fire was discovered in the roof of the elevator shortly after the train had left the station. The evidence further tended to show that there were two engines in use for this night train, Nos. 169 and 184, and that one ran east one night and west the next, thus each in turn, running east every alternate night, and on the night in question No. 169, was pulling the train east. It therefore became plaintiffs' contention that the fire was set by escaping sparks from engine No. 169. It was Mr. Yates' statement of the evidence on this head in his argument for the plaintiff, that the trial court found ground for setting aside the verdict. His statement was as follows:
Turning to the record, we find that a witness named Snell who lived nearby, and who discovered the fire, testified as follows:
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