Devine v. Wells

• Decision Date: 31 July 1923
• Citation: 254 S.W. 65,300 Mo. 177
• Parties: MAY DEVINE, Appellant, v. ROLLA WELLS, Receiver of United Railways Company of St. Louis
• Court: Missouri Supreme Court

254 S.W. 65

300 Mo. 177

MAY DEVINE, Appellant, v. ROLLA WELLS, Receiver of United Railways Company of St. Louis

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

Louis E. Trieseler, Foristel & Eagleton and O. J. Mudd for appellant.

(1) Motions for new trial on the ground of newly discovered evidence should be discouraged; should be strictly construed should be sustained only in exceptional cases; should be refused as a rule, and granted as an exception. State v McLaughlin, 27 Mo. 111; State v. Ray, 53 Mo. 349; Cook v. Railroad, 56 Mo. 381; Mayor of Liberty v. Burns, 114 Mo. 433; Adam Roth Grocery Co. v. Hotel Co., 183 Mo.App. 429; MacCallum v. Printing Co., 221 S.W. 158. (2) The court erred in setting aside the verdict and granting respondent a new trial on the ground of newly discovered evidence, because the motion for a new trial does not contain any such ground of new trial. The purported statement of such ground in the motion (a) neither contains the supposed newly discovered evidence, nor (b) does it show due diligence to discover such evidence as required by applicable rules of law; and the motion is therefore fatally defective and insufficient as a statement of ground for new trial. Davis v. Peveler, 65 Mo. 189, 192 S.W. 448; King v. Gibson, 206 Mo. 264, 253 Mo. 162; Winn v. Grier, 217 Mo. 461; Wabash Railroad Co. v. Cockrell, 182 S.W. 448; State v. Walker, 232 Mo. 252, 261; Polski v. St. Louis, 264 Mo. 458. (3) The motion is defective because not sworn to by the defendant. It should be supported by the affidavits of the defendant as well as of the persons who make the affidavits filed in support of the motion. Gray v. Lumber Co., 177 S.W. 595; Winn v. Grier, 217 Mo. 461; State v. Miller, 144 Mo. 30; State v. Nettles, 153 Mo. 468; Stahlman v. Rys. Co., 183 Mo.App. 149; State v. McLaughlin, 27 Mo. 111. (4) The motion for a new trial must contain a "written specification of the new reasons" on which a new trial is asked. R. S. 1919, sec. 1257; Polski v. St. Louis, 264 Mo. 458. (5) Defects in a motion for new trial may not be cured by affidavits filed in support of it. King v. Gibson, 206 Mo. 264; Bank v. Potts, 148 Mo. 176; Hanks v. Hanks, 218 Mo. 678; State ex rel. v. McQuillan, 256 Mo. 708; Pullis v. Summerville, 218 Mo. 649; Robinson v. Levy, 217 Mo. 510; State v. Walker, 232 Mo. 262; Vaughn v. Daniels, 98 Mo. 231; Curry v. Lackey, 35 Mo. 392. (6) And unless the motion contains a properly laid ground of new trial, on newly discovered evidence, then the affidavits in support of the motion are not receivable, perform no valid function whatever, and should not be read or considered by the court. Gray v. Lumber Co., 177 S.W. 596; Winn v. Grier, 217 Mo. 461; King v. Gibson, 206 Mo. 264; State v. Walker, 230 Mo. 262. (7) The condition of plaintiff's health prior to the accident was an issue at the trial, and was the subject there of combat on the examination of the witnesses and of evidence pro and con. The defendant cross-examined plaintiff's witnesses at length as to the point and called witnesses on his own behalf to controvert plaintiff's evidence on the point, and asked and received instructions based on that evidence and the issue raised on it. Further evidence thereon, as contained in the defendant's affidavits in support of the motion is "cumulative" and as such is not a legal ground of new trial as "newly discovered evidence." Beauchamp v. Sconce, 12 Mo. 57; Bogg v. Lynch, 22 Mo. 563; Wells v. Sanger, 21 Mo. 359; Cook v. Ry. Co., 56 Mo. 384; Stahlman v. Rys. Co., 183 Mo.App. 151.

T. E. Francis and W. H. Woodward for respondent.

(1) The policy of appellate courts is to encourage the trial court in the exercise of its discretion in granting new trials for newly discovered evidence. Gaty v. United Rys. Co., 227 S.W. 1041; McPherson v. Harvey, 183 S.W. 653. (2) The names of the witnesses giving the newly discovered evidence were set forth in the motion, together with the ultimate fact as to which they would testify, namely, plaintiff's previous physical condition. The details of their testimony were set out in affidavits, incorporated and bound with the motion and referred to by the motion and this meets the requirements of the decided cases. King v. Gilson, 206 Mo. 279; Lyons v. Railroad, 253 Mo. 162; Davis v. Peveler, 65 Mo. 193; State v. Walker, 232 Mo. 262; Banks v. Porter, 148 Mo. 183; Gray v. Lumber Co., 177 S.W. 595; McPherson v. Harvey, 183 S.W. 653. (3) Whenever demonstrations are so prejudicial and so often repeated as to deprive a party of a fair trial, it is the court's duty to declare a mistrial or after verdict, to grant a new trial. Stutz v. Milligan, 223 S.W. 128; McClendon v. Bank, 188 Mo.App. 417; McPherson v. Harvey, 183 S.W. 653; Aetna Ins. Co. v. Mo. Pac. Ry. Co., 123 Mo.App. 513; Wendler v. Peoples House Furn. Co., 165 Mo. 527; Boulware v. Mfg. Co., 152 Mo.App. 567. (4) The granting of a new trial will be sustained where the verdict amounts to a fraud upon the court or upon justice. Sec. 1453, R. S. 1919; Allen v. Railroad Co., 167 Mo.App. 498; Thompson v. Emerson, 118 Mo.App. 232. (5) The granting of a new trial will be sustained where a verdict has been obtained by perjured testimony. Sec. 1453, R. S. 1919; Ridge v. Johnson, 129 Mo.App. 541; Thompson v. Emerson, 118 Mo.App. 232; Rickroad v. Martin, 43 Mo.App. 597.

OPINION

JAMES T. BLAIR, J.

-- This is an appeal from an order granting a new trial, on the stated ground of newly discovered evidence, after a $ 20,000 verdict for appellant in an action she brought for injuries she alleges she suffered by reason of the negligent operation of a street car.

The negligence alleged is that while appellant was entering a street car and was paying her fare the car was negligently started violently and with an unusual jerk and she was thereby thrown to the street and hurt. There was evidence tending to support this allegation. There was evidence that appellant fell before the car started, and without any cause for which respondent could be liable. Appellant alleged that she suffered injuries external and internal of a grave character; that as a result it was necessary to remove her appendix, one fallopian tube and the right ovary; and that her stomach has been so affected that it will not retain food and she suffers from fits of vomiting, dizziness, neurasthenia and insomnia. The testimony shows that the operation alleged was performed and the parts mentioned removed. It shows rather a possibility than a probability that this was necessitated by any injury. This is not to be understood as a decision that there was no evidence sufficient to warrant the submission of the conditions as a basis for the assessment of damages. That question is not made in the briefs and is not decided here. The evidence that appellant suffered from continued vomiting after the accident and the trial is overwhelming and was supplemented by the frequent recurrence of such "spells," as they are called in the petition, in the presence of the jury. There is no doubt that in this respect appellant is in a most pitiable and distressing condition. Appellant testified she had never been sick in this way before. There was not much evidence of external injury from appellant's fall. After verdict, and within time, a motion for new trial containing many grounds was filed. One of these grounds was based upon newly discovered evidence. On the same day, and with the motion, several affidavits were filed to which the motion expressly referred, naming the witnesses, as "hereto annexed and made a part hereof." Subsequently, by leave, other like affidavits were filed by respondent, and others in answer by appellant. Those filed by appellant are not in the record. The ground of the motion on the point in question is as follows:

"That since the 11th day of June, 1921, when the trial of this case was concluded, defendant had discovered new evidence which is vital and material to the trial of said cause, and that defendant could not, by the use of reasonable diligence, have discovered said evidence in time for the trial, and that defendant came to the knowledge of such evidence after the conclusion of the trial, when certain of the witnesses, whose affidavits are hereto annexed, telephoned defendant of the facts within their knowledge, and that defendant did not discover said evidence prior to the time it was volunteered by such witnesses, for the reason that defendant did not know such witnesses, did not know and had no way of ascertaining that plaintiff had lived with them at 2635 Russell Avenue, and had no way of knowing that she had there been treated by Doctor Martin J. Glaser in 1918, for the reason that plaintiff testified in her deposition that she had never been sick during the six years last passed. The affidavits of Dona Wallace, Thomas Wallace, Dr. Martin J. Glaser, Benjamin Howell and W. H. Woodward are hereto annexed and made a part hereof."

Two of the affidavits filed by respondent with the motion are to the effect that affiants, Mr. and Mrs. Wallace, had appellant in their home as a boarder in 1918 for about two months; that she said she came from the hospital; that she constantly complained of being sick and frequently had attacks which began with nervousness and hysteria and were accompanied by "extreme retching and vomiting." These attacks were accompanied by fainting spells and sometimes lasted for hours. Specific instances were detailed. Excitement or any disagreeable occurrence "invariably developed" these attacks. These affiants knew nothing of the lawsuit until they saw an article concerning the verdict. The article mentioned appellant's attacks of vomiting as the basis of...