Caruthersville Plumbing & Auto Co. v. Lloyd

• Decision Date: 08 May 1922
• Docket Number: No. 3059.,3059.
• Citation: 240 S.W. 838
• Court: Missouri Court of Appeals
• Parties: CARUTHERSVILLE PLUMBING & AUTO CO. v. LLOYD.

240 S.W. 838

CARUTHERSVILLE PLUMBING & AUTO CO. v. LLOYD.

No. 3059.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by the `Caruthersville Plumbing & Auto Company against M. W. Lloyd. Judgment for plaintiff, and for defendant on his counterclaim. From an order sustaining plaintiff's motion for new trial, defendant appeals. Affirmed.

H. B. Pankey, of Kennett, for appellant.

McKay & Jones, of Kennett, for respondent.

BRADLEY, J.

This cause was commenced in replevin to recover the possession of a motor truck. As a part of the purchase price defendant gave his note for $1,000 to plaintiff, and gave a mortgage on the truck to secure this note. When the writ was served defendant gave the required bond and retained the truck. The petition is in the usual form for replevin under the facts. Defendant answered by a general denial and a counterclaim. The counterclaim, when analyzed, is, we think, based on damages for breach of warranty. No reply appears to have been filed, but no point is made in this respect, and the cause was tried as though a general denial was filed for a reply. Although plaintiff sued in replevin, the cause proceeded as though the suit was on the $1,-000 note and the counterclaim. At the outset of the trial counsel for defendant said:

"If the court please, under the pleadings we request permission to assume the burden, and have the opening and closing. We admit the execution of the note, and that it hasn't been paid."

No objection was offered, and apparently the pleadings were not examined, so defendant proceeded on his counterclaim. At the close of the case, among the instructions offered defendant offered and was given one admitting his liability on the note. The jury returned the following verdicts:

"We, the jury, find the issues joined in the above-entitled cause as follows: (1) Upon plaintiff's cause based on the note, we find for the plaintiff in the sum of $1,119.60, and also as attorney's fee the sum of $100. (2) Upon the counterclaim of defendant, we find for the defendant, M. W. Lloyd, and we assess his damages at the sum of $1,231.56."

Plaintiff filed its motion for a new trial, and the trial court sustained the motion without stating upon what grounds. Defendant appealed from the order sustaining the motion for new trial.

It does not appear on what ground the learned trial court sustained the motion for a new trial. In such case the action below will be sustained if it can be upon consideration of the whole record. Lowry v. Smith, 199 Mo. App. 163, 198 S. W. 437; King v. Mann (Mo. App.) 235 S. W. 506. In the motion for a new trial plaintiff alleged error in effect as follows: (1) That the verdict on the counterclaim is against the weight of the evidence; (2) that instructions were erroneously given and refused; (3) that instructions offered by plaintiff were erroneously modified; (4) that evidence was erroneously admitted and excluded; (5) that the court erred in not rebuking counsel for defendant for alleged improper argument; (6) that the verdict on the counterclaim is excessive.

The first ground alleged in the motion for a new trial as we have stated them is that the verdict on the counterclaim is against the weight of the evidence. One new trial may be granted on the ground of the insufficiency of the evidence. Oliver v. St. Louis-San Francisco Ry. Co. (Mo. App.) 211 S. W. 699; Littig v. Urbauer-Atwood Heating Co. (Mo. Sup.) 237 S. W. 779. In the last-mentioned case this language appears:

"It has been the settled doctrine of this court for more than 40 years that the trial court may grant one new trial to either party, where the verdict returned is deemed to be contrary to the weight of the evidence."

There are many cases to the same effect as the two cited. The court may have, so far as appears, sustained the motion on the ground that the verdict was against the weight of the evidence. If so, such action is immune on this appeal....