Canterbury v. Kansas City

• Decision Date: 02 March 1908
• Citation: 130 Mo. App. 1,108 S.W. 574
• Parties: CANTERBURY v. KANSAS CITY.
• Court: Missouri Court of Appeals

108 S.W. 574

130 Mo. App. 1

CANTERBURY v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

March 2, 1908.

1. JUDGMENT — RES JUDICATA.

A judgment against the wife, in a suit by her for injuries, is not res judicata as to an action brought by her husband for damages to himself by reason of the injuries suffered by his wife.

2. APPEAL — REVIEW — ALLOWANCE OF NEW TRIAL.

If there is any substantial evidence in favor of the losing party which would have sustained a verdict had it been for him, the court's discretion in granting a new trial will be sustained on appeal.

Appeal from Circuit Court, Jackson County; Thos. H. Reynolds, Special Judge.

Action by John M. Canterbury against Kansas City. There was a verdict for plaintiff, and from an order sustaining a motion for a new trial plaintiff appeals. Affirmed.

Battle McCardle and John C. Stearns, for appellant. Edwin C. Meservey, City Counselor, and W. H. H. Piatt, Associate City Counselor, for respondent.

ELLISON, J.

This action is for damages to plaintiff on account of personal injuries suffered by his wife in falling on one of defendant's sidewalks. There was a verdict for the plaintiff in the trial court. Afterwards defendant filed a motion for new trial, which the court sustained, on the ground that "the verdict was against the weight of the evidence as to the obstructions of the sidewalk, and as to contributory negligence of plaintiff's wife." Whereupon the plaintiff appealed from such order.

It seems that plaintiff's wife, herself, brought an action against the defendant city for damages alleged to have resulted to her from the same fall, and that she failed in such action. That, however, in an exhaustive opinion by Judge Lamm, was held not to be res adjudicata as to this plaintiff. Womach v. St. Joseph, 201 Mo. 467, 100 S. W. 443.

But we find ourselves not able to sustain plaintiff's appeal. The ground assigned by the trial court, that the verdict is against the weight of the evidence, is a ground that is not reviewable here except in those extreme cases where there is no substantial evidence in behalf of the successful party. If there is any substantial evidence in favor of the losing party which would have sustained the verdict had it been for him, then the appellate tribunal will sustain a court's discretion in granting the new trial. This is done more for the reason that the matter of passing on the weight of evidence is the province of the trial court. But one new trial can be...