King v. Kaw-Mo Wholesale Grocer Co.

• Citation: 188 Mo. App. 235,175 S.W. 77
• Decision Date: 01 March 1915
• Docket Number: No. 11403.,11403.
• Parties: KING v. KAW-MO WHOLESALE GROCER CO.
• Court: Court of Appeal of Missouri (US)

175 S.W. 77

188 Mo. A. 235

KING v. KAW-MO WHOLESALE GROCER CO.

No. 11403.

Kansas City Court of Appeals, Missouri.

March 1, 1915.

Rehearing Denied April 5, 1915.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Thomas King against the Kaw-Mo Wholesale Grocer Company. From judgment for plaintiff, defendant appeals. Affirmed.

N. F. Heitman and Hunt C. Moore, both of Kansas City, for appellant. Frank D. Rader and James M. Rader, both of Kansas City, for respondent.

JOHNSON, J.

Plaintiff alleged that he was walking at night along the sidewalk on the east side of Walnut street, near Second street, in Kansas City, when he fell into an excavation on defendant's lot, which was negligently left unguarded, and sustained serious personal injuries.

The answer, in addition to a general denial, pleaded contributory negligence, and further alleged that plaintiff, before falling into the pit, had left the street and was trespassing upon private property. The reply was a general denial.

A trial of the issues resulted in a verdict of $2,500 for plaintiff, which the court set aside on the ground that it was against the weight of the evidence, and ordered a new trial. At the close of the evidence introduced by plaintiff at the second trial, and again at the close of all the evidence, defendant asked a peremptory instruction, but these requests were refused, and the court submitted the cause to the jury on the pleaded issues of negligence and contributory negligence, and the jury returned a verdict for plaintiff in the sum of $1,000. Defendant did not file a motion for a new trial or in arrest of judgment, but within four days after the verdict filed a motion for judgment non obstante veredicto upon the grounds: First, that "under the pleadings the judgment in this case should be for the defendant"; and, second, that "under the pleadings and the evidence the judgment should be for the defendant." No demurrer to the petition was interposed, and counsel for defendant do not contend in their brief and argument that the petition fails to state a cause of action. The right they assert to have judgment rendered for their client notwithstanding the verdict is founded on the idea that plaintiff failed completely in his proof, that the trial court should have directed a verdict for defendant, that no good purpose could have been served in asking " for and obtaining another trial of the cause, since the evidence of plaintiff shows affirmatively that he has no case on the facts, and that another trial, of necessity, would result in a directed verdict for defendant. In such state of case, it is argued that, after verdict, it was proper for defendant to give the trial court another opportunity to do what it should have done before verdict, viz., to declare, as a matter of law, that plaintiff has no case upon the facts.

It will not be necessary to state the facts disclosed by the evidence, since, in the view we have of defendant's position, it is immaterial whether the court ruled correctly or incorrectly in overruling the demurrers to the evidence, and we shall assume arguendo that the court erred not directing a verdict for defendant. Such error was a matter of exception which defendant waived by failing to preserve it in the method prescribed by our Code of Civil Procedure. The peculiar office of the motion for a new trial (section 2022, It. 8. 1909) is to preserve matters of exception (i. e., errors committed at the trial, by which the verdict or finding became improper); and, where the party against whom such prejudicial error was committed fails to employ this statutory vehicle, he losses the right, after verdict, of formally invoking the corrective power of the court. State ex rel. Iba v. Ellison et al., 256 Mo. 644, 165 S. W. 369.

Under our Code, the only means an unsuccessful defendant may employ in attacking the adverse verdict are a motion for a new trial and the motion in arrest of judgment, the former to reach matters of exception, the latter to attack the plaintiff's right to a recovery upon the face of the record proper. The questions of the propriety of the court's rulings upon evidence or in instructing the jury will be waived if not repeated in a motion for a new trial, while the proper method of calling the court's attention, after verdict, to the insufficiency of the petition to state a cause of action which will support a judgment for the plaintiff, is by motion in arrest. In the present case the petition obviously and confessedly states a good cause of action, and there was no occasion for moving in arrest of judgment; and, since the propriety of the ruling on the that case: peremptory instruction was not questioned by motion for a new trial, defendant waived the question and has brought nothing to us for review.

The attempted use of the motion non obstante veredicto evinces a misconception of the function and purpose of such motion. Indeed, it was recently held by this court in an opinion written by Broaddus, P. J. (Kinkaid v. Levy, 151 Mo. App. 352, 131 S. W. 757), that such motions had become obsolete and were strangers to our practice. In Manion v. Carreras, 19 Mo. App. 535, the motion was held proper where...