Gaty v. United Railways Co. of St. Louis
| Decision Date | 05 March 1921 |
| Parties | FLORENCE L. GATY, Appellant, v. UNITED RAILWAYS CO. of ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thos. C. Hennings Judge.
Affirmed.
D Franklin Garber and Claude D. Hall for appellant.
(1) Motions for a new trial on ground of newly-discovered evidence are regarded with a jealous eye and construed with strictness by the courts. They should be tolerated, not encouraged; viewed with aversion rather than favor; granted as an exception and refused as a rule. Tootle & Co. v Lysaght & Co., 65 Mo.App. 139; State v. McLaughlin, 27 Mo. 111; Cook v. Railroad Co., 56 Mo. 380; State v. Sansone, 116 Mo. 1; Grocery Co. v. Hotel Co., 183 Mo.App. 429; State v. Bybee, 149 Mo. 632; Porter v. Stock Yds. Co., 213 Mo. 372; Blair v. Paterson, 131 Mo.App. 122. (2) Before a new trial can be granted on newly-discovered evidence, applicant must be held to the strictest accountability for failure to obtain the requisite evidence in the first instance. Miller v. Whitson, 40 Mo. 97; Shaw v. Besch, 58 Mo. 107; James v. Life Assn., 148 Mo. 1; Stahlman v. Rys Co., 183 Mo.App. 144; Aaron v. Street Ry., 159 Mo.App. 307; Eidson v. Street Ry., 209 S.W. 577; Knox v. Ry. Co., 199 Mo.App. 64; Bowen v. Matlack, 188 S.W. 99; State v. Morgan, 96 Mo.App. 346; Jones v. Furnishing Co., 77 Mo.App. 474. (3) Where there is no statement in the affidavit that the verdict is unjust, or that the defense has merits, the motion should be overruled. Culbertson v. Hill, 87 Mo. 553. (4) In order to sustain a motion on the ground of newly-discovered evidence, it must appear that the evidence is material. Goff v. Mulholland, 33 Mo. 203; Mayor of Liberty v. Burns, 114 Mo. 426; King v. Gilson, 206 Mo. 264; Winn v. Grier, 217 Mo. 420; State v. Miller, 144 Mo. 26. (5) To sustain a motion for a new trial on this ground, the newly-discovered evidence must not be merely contradictory. Boggs v. Lynch, 22 Mo. 563; Stahlman v. Ry. Co., 183 Mo.App. 144. (6) The newly-discovered evidence must not be merely cumulative. Gardner v. Ry. Co., 167 Mo.App. 605; State v. Nickens, 122 Mo. 607; State v. McLaughlin, 27 Mo. 111; State v. Welsor, 117 Mo. 570; State v. Nettles, 153 Mo. 464; Bed Co. v. Ry. Co., 148 Mo. 478; State v. Bybee, 149 Mo. 632. (7) The evidence must be such as to produce a different result upon a retrial. Stephens v. City of Macon, 83 Mo. 345; Lyons v. Met. St. Ry. Co., 253 Mo. 143; State v. Sansone, 116 Mo. 14; Madden v. Realty Co., 75 Mo.App. 358; State v. Estes, 209 Mo. 306. (8) This court will reverse the decision of the lower court and give such judgment as ought to be given. Sec. 2083, R. S. 1909; Smith v. White, 165 Mo. 590; Bragg v. Street Ry. Co., 192 Mo. 366. (9) The court did not err in permitting Dr. Horwitz to testify that the disease in plaintiff's knee joint was superinduced by the injury. It was perfectly proper for this witness to state his conclusion, as he was shown to be a physician and surgeon of experience with reference to such matters, and that he had been treating the plaintiff for some time. Fullerton v. Fordyce, 144 Mo. 519; Halfenstein v. Medart, 136 Mo. 595; Laughlin v. Railway, 275 Mo. 473; Torreyson v. Rys., 246 Mo. 703. Again, there was no objection made and exceptions saved to this testimony. Higgins v. Jasper. 134 Mo.App. 1; State v. Scullin, 185 Mo. 709; Ross v. Pants Co., 241 Mo. 296. And the exception must be taken immediately. Moran v. Stewart, 246 Mo. 462. Not only was this testimony admissible, but the defendant's counsel himself brought out this testimony in his examination of Dr. Horwitz. And the rule is, that a party litigant cannot complain of testimony over his objection where evidence of the same character has been admitted without objection, or where he himself introduces like evidence. Masonic Mutual v. Lackland, 97 Mo. 137; Laughlin v. Railway, 275 Mo. 474. (10) There is no merit in respondent's argument that the verdict was excessive. The trial judge did not assign an excessive verdict as a ground for sustaining the motion for a new trial. The plaintiff received injuries of a serious and permanent character. Plaintiff is a single woman, and at the time of trial was 36 years of age and earning $ 66 a month as a stenographer in the postal service. As a result of the collision she was knocked unconscious and was in a dazed condition for several minutes thereafter; her face was cut and bleeding, and her leg was so injured she could hardly get off of the car; her knee and upper part of the right leg was injured; she could hardly get home; she limped so; her limb bothered her; she kept getting worse right along; was constantly under the care of physicians down to the date of trial. On January 29th, subsequent to the accident, which was on the 19th day of December previous, her limb was so sore and tender that it was necessary to put her leg in a cast. Her whole limb was swollen, and on the last of March she had to get crutches. Though the cuts on her forhead were healing she was put to bed for six weeks; she was very nervous.
Charles W. Bates, T. E. Francis and Albert D. Nortoni for respondent.
(1) The trial court did not err in granting defendant a new trial on the ground of the discovery by defendant, subsequent to the trial, of evidence which tends to show that plaintiff's injuries did not result from the street car collision, but resulted from an automobile collision, for the following reasons: (a) Since defendant's motion for a new trial on this ground was addressed largely to the trial court's discretion, the sustainment of the motion should not be set aside by this court, unless the trial court clearly abused its judicial discretion; and any doubt on this point should be resolved in defendant's favor. McPherson v. Harvey, 183 S.W. 654; Insurance Co. v. Curran, 45 Mo. 145; Coleman v. Cole, 96 Mo.App. 33; Cook v. Railway Co., 56 Mo. 384; Allen v. Railway Co., 167 Mo.App. 505. Since the trial court adjudged the verdict unjust, it was its duty, and it had the right, to grant a new trial under the circumstances, and this court should encourage the trial court in the performance of that duty, and heretofore has done so in like cases. Devine v. St. Louis, 257 Mo. 475; McCarty v. Transit Co., 192 Mo. 401; Rickroad v. Martin, 43 Mo.App. 603; Reid-Murdock & Co. v. Lloyd & Moorman, 61 Mo.App. 648; Iba v. Railway Co., 172 Mo.App. 141; Lorenzen v. Railroad, 249 Mo. 187; Taylor v. Ry. Co., 163 Mo. 191. (b) The trial court did not, in sustaining defendant's motion for a new trial, abuse its judicial discretion, for the reason that defendant made a substantial showing entitling it to a new trial on the ground of the newly discovered evidence. McPherson v. Harvey, 183 S.W. 654; Ry. Co. v. Ransom, 5 Ga.App. 740; Davis v. Sim, 92 Kan. 264; Mason v. Meloan, 165 Ky. 582; Thornton v. Rhode Island, 67 A. 451; Spencer v. Erie R. Co., 75 A. 155. (c) The newly discovered evidence was not cumulative. Chlanda v. Transit Co., 213 Mo. 268. (d) The admission of plaintiff, that she sustained severe injuries in an automobile collision, is original evidence, for the reason that she was a party to the record, and, since defendant filed her affidavit, there was a showing that it could be produced on a new trial. Southern Bank v. Nichols, 202 Mo. 324; Bank v. Epstein, 221 Mo. 303. (2) The trial court did not err in granting defendant a new trial, and its order granting defendant a new trial should, therefore, be affirmed, for the reason that it erred in admitting the testimony of Dr. Horwitz that plaintiff suffered from a "disease" of the knee joint, since such "disease" was an element of special damages not pleaded and was not shown to be a necessary result of the injuries pleaded in the petition. Hall v. Coal & Coke Co., 260 Mo. 371. (a) The court will not reverse the order of the trial court in granting a new trial if it can be sustained upon any ground of the motion for a new trial, even though not sustainable upon the ground specified of record. State ex rel. Hartman v. Thomas, 245 Mo. 71. (3) The trial court did not err in granting defendant a new trial, and its order granting a new trial should, therefore, be affirmed, for the reason that it erred in admitting the testimony of Dr. Horwitz, that the "disease" in plaintiff's knee joint, from which she suffered, "was superinduced by" the injury, thus permitting the witness to state a mere conclusion and to invade the province of the jury. De Meat v. Storage Co., 231 Mo. 630; Castanie v. United Rys., 249 Mo. 196; Jackmann v. Ry. Co., 187 S.W. 787; Deiner v. Suttermeister, 266 Mo. 521; Rusk v. Pryor, 190 S.W. 1038; Henson v. Kansas City, 210 S.W. 16; Willis v. Ry. Co., 199 S.W. 738; Smart v. Kansas City, 208 Mo. 202; Glasgow v. Met. St. Ry. Co., 191 Mo. 347; Roscoe v. Railroad, 202 Mo. 576. (4) The trial court did not err in granting defendant a new trial, and its order granting a new trial should, therefore, be affirmed, for the reason that the verdict was so grossly excessive as to be indicative of the fact that it was, and because it was, as a matter of fact, the result of bias and prejudice on the part of the jury against defendant. Cook v. Globe Printing Co., 227 Mo. 614; Partello v. Ry. Co., 217 Mo. 661; Chitty v. Ry. Co., 148 Mo. 82; Gurley v. Ry. Co., 104 Mo. 234; Adams v. Ry. Co., 100 Mo. 570. (a) The verdict was grossly excessive. Nicholds v. Glass Co., 126 Mo. 68; Adams v. Ry. Co., 100 Mo. 555. (b) There was no evidence of permanent injury. Wilbur v. Elec. Ry. Co., 110 Mo.App. 697.
OPINION
In Banc.
This is an action for damages for personal injuries alleged to have been received by plaintiff in a collision between two of defendant's street cars, in one of which she was a...
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