Devine v. Wells

• Decision Date: 31 July 1923
• Docket Number: No. 23472.,23472.
• Citation: 300 Mo. 177,254 S.W. 65
• Parties: DEVINE v. WELLS.
• Court: Missouri Supreme Court

254 S.W. 65

300 Mo. 177

DEVINE v. WELLS.

No. 23472.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by May Devine against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and from an order granting a new trial, she appeals. Affirmed and remanded.

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

T. E. Francis and W. H. Woodward, both of St. Louis, for respondent.

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 Dr. 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 there 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 some, times 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 recovery. Affiants then concluded to advise respondent's counsel of what they knew, and did so. Dr. Glaser's affidavit shows that in 1918 he was called three times to treat appellant for hysteria and vomiting, severe headaches and dizziness while she was at the Wallace home. Benjamin Howell made affidavit that he was assigned by the claim department to investigate this case; that he had charge of the investigation and he had never heard of the Wallaces and did not know Dr. Glaser and could not and did not ascertain that appellant had resided at the Wallace home; that appellant gave other addresses in St. Louis as her place of residence during recent years, preceding the accident. This is supported to some extent by answers of appellant in her deposition which was filed with the motion as an affidavit. Counsel in charge of the case for the receiver also made affidavit that his first knowledge of the facts set up in the motion and by the Wallaces and Dr. Glaser came to him from the Wallaces in the manner stated by them; that he had made every effort to find persons familiar with appellant's previous history but had not discovered the facts set up; that appellant had said in her deposition (as she did) that she had never been ill during the several years preceding the accident. Other matters appear in these affidavits but need not be detailed. Under leave, several other affidavits were subsequently filed which seem to have come from witnesses discovered by reason of the beginning made with the Wallaces. One of these was a physician. All strongly supported the contention that appellant's condition, on which the recovery seems chiefly based, antedated the accident. Detailed evidence is set out. Further facts appear in connection with points discussed. The trial court sustained the motion on the ground mentioned. This appeal followed. Respondent insists the ruling was right for the reason the trial court gave, and further is justified by several other reasons which he brings forward. In the view we take of the case these need not be set forth.

I. Applications for new trial on the ground of newly discovered evidence are not viewed with favor, are not to be encouraged, and ought to be examined with caution. Cook v. Railroad Co., 56 Mo. loc. cit. 384; Mayor v. Burns, 114 Mo. loc. cit. 432, 433, 19 S. W. 1107, 21 S. W. 728. This rule guides the trial court in ruling on the motion, and has its place in the review of that ruling. The settled general rule is that the trial court's exercise of discretion in refusing or sustaining motions for new trial will not be disturbed unless a manifest abuse of that discretion is made to appear. That rule has been many times applied by this court in sustaining trial courts in overruling motions based upon newly discovered evidence. In Cook v. Railroad Co., supra, It was said:

"The granting of new trials, because of evidence subsequently discovered, rests for the most part with the trial court; and any doubt, as to whether the discretion vested in this regard in that tribunal has been soundly exercised, is to be resolved in favor of its ruling. It is only in a case entirely free from any element of uncertainty as to the impropriety of such ruling, that appellate courts feel themselves called upon to interfere."

The rule is to be applied in considering an order granting a new trial on the ground of newly discovered evidence as in this case. It was so held in Howland v. Reeves, 25 Mo, App. loc. cit. 467, in an opinion by Philips, P. J. There seems to be no reason to doubt this rule. It is strengthened by the principle adopted in Helm v. Bassett, 9 Mo. loc. cit. 55 (cited in the Howland Case), and generally approved. In Longdon v. Kelly, 51 Mo. App. loc. cit. 576, the court was considering the correctness of a ruling sustaining a motion on the ground of newly discovered evidence. The court said:

"At the threshold of plaintiff's case he is met with the strong, though not absolutely insuperable, barrier of a trial court's discretion in the matter of granting new trials. The books are filled with declarations by authors and courts, which vigorously maintain that this function belongs naturally and peculiarly, though not exclusively, to the trial court. In plain cases, free from doubt, the appellate court will revise such discretion in the lain and apparent interest of justice under the forms of law. In examining the law on this subject, care should be taken not to confuse the language of courts in approving the action of a trial court in refusing a new trial with language applicable to cases where a new trial has been granted. In other words, the language of courts in sustaining the discretion which has been exercised by the trial court is often not applicable to a case overturning such discretion."

Upon the holding that the appellate court is less apt to interfere when a pare trial has been granted than when it has been denied, this decision frequently has been cited with approval. Harkness v. Jarvis, 182 Mo. loc. cit. 241, 242, 81 S. W. 446; Parker v. Britton, 133 Mo....