Brady v. Connelly

• Decision Date: 28 February 1873
• Citation: 52 Mo. 19
• Parties: JOHN BRADY, Respondent, v. JAMES H. CONNELLY, GEORGE W. SMITH AND JOHN CORRALL, Appellant.
• Court: Missouri Supreme Court

52 Mo. 19

JOHN BRADY, Respondent,

v.JAMES H. CONNELLY, GEORGE W. SMITH AND JOHN CORRALL, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from the Platte County Circuit Court.

Allen H. Vories, for Appellant.

J. E. Merryman, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action for damages for throwing down the wall of plaintiff's store-house and thereby injuring his goods and house by negligently excavating the earth from below the foundation of his house.

A verdict and judgment were given for the plaintiff, and a motion for a new trial was made and overruled and exceptions duly saved; and defendants have appealed to this court.

1. The first point raised by the appellant here is that the verdict of the jury, being general, cannot stand; that there were two counts in the petition and there should have been a separate verdict on each count. This rule only applies when the counts are for separate and distinct causes of action. There is no pretense here that there were several causes of action. It is conceded that there was but a single cause of action and although there are two counts in the petition, they are only separate statements of the same identical cause of action. The verdict therefore is right. (See Brownell vs. Pacific Railroad Company, 47 Mo., 239; Ranney vs. Bader, 48 Mo., 539; Newton vs. Miller, 49 Mo., 298.)

2. The next and only remaining point made by the appellant here is upon the instructions given for the plaintiff. The instructions do not seem to be objectionable; but if they were they are not subject to review here. Although the defendant excepted to the ruling of the court when the instructions were given he did not afterwards raise the same objection in his motion for a new trial. The motion is not based on any error in this court in giving instructions. The object of a motion for a new trial is that the court may have the chance to correct any errors that were made upon the trial; and where instructions were objected to on the trial, this point must again be presented to the court so as to allow the error if any to be corrected without an appeal to this court.

Upon the whole record, I think the judgment was for the right party.

Judgment affirmed.

Judge Vories not sitting. The other Judges concur.