King v. Mann

• Decision Date: 05 December 1921
• Citation: 235 S.W. 506,208 Mo.App. 642
• Parties: A. J. KING, Respondent, v. JOHN E. MANN, Appellant
• Court: Missouri Court of Appeals

235 S.W. 506

208 Mo.App. 642

A. J. KING, Respondent, v. JOHN E. MANN, Appellant

Court of Appeals of Missouri, Springfield

December 5, 1921

Appeal from Circuit Court of St. Clair County.--Hon. C. A. Calvird Judge.

AFFIRMED and CERTIFIED to SUPREME COURT.

Cause certified to Supreme Court.

Hargus & Johnson for appellant.

(1) The law in this case has been settled. King v. Mann, 207 S.W. 836. (2) There can be but one new trial granted to the same party because the verdict is against the weight of the evidence. Sec. 1454, R. S. 1919; O'Donnell v. United Ry. Co., 152 Mo.App. 506; Van Loon v. Power Co., 271 Mo. 209. (3) There was a prior new trial granted plaintiff in this cause on the ground that the verdict was against the weight of the evidence. King v Mann, 199 S.W. 705. (4) In the absence of due cause an attorney's abandonment of the case of his client will bar recovery. Blanton v. King, 73 Mo.App. 148, 150; King v. Mann, 207 S.W. 836. (5) Whether or not an attorney was employed by the defendant, and if so, whether the latter agreed to pay, and what were the terms of the contract, and whether the services were rendered and their value, and whether an attorney was justified in withdrawing from the case, are all questions of fact for the jury. 4 Cyc., p. 104; King v. Mann, 207 S.W. 836. (6) A trial court cannot arbitrarily exercise its discretion in setting aside a verdict. Van Loon v. Power Co., 271 Mo. 209; Edwards v. Mo. P., 82 Mo.App. 486.

W. M Bowker, L. E. Crook and John A. Gilbreath for respondent.

(1) Several grounds assigned for new trial. 193 Mo. 363; 123 Mo.App. 313. (2) Presumption obtains that trial court did not violate sec. 1454, R. S. 1919. 211 S.W. 699, in point. (3) Appellate practice in regard to order granting new trials Discretion of trial judge. 190 Mo.App. 221; 174 Mo.App. 378, 379; 193 Mo.App. 351, good. (4) No record that any previous trial had been granted on the ground that the verdict was against the evidence; effect of Rule. See Oliver v. Frisco, 211 S.W. 699, 701. (5) Passion and prejudice; Misbehavior of jury. 123 Mo.App. 691, 703, 704 and 705 and cited authorities. 190 Mo.App. 220, and 174 Mo.App. 379. (6) Questions of law. Whether there is any evidence, or what its legal effect, are matters to be decided by the court. Twohey v. Fruin, 96 Mo. 104. "It is conceded that wheher there is any evidence, or what its legal effect may be, is to be declared by the court. Callahan v. Warne, 40 Mo. 131." Twohey v. Fruin, 96 Mo. 109. (7) "Verdict: New Trial. The Supreme Court will not interfere with the discretion of the trial court in awarding a new trial because the verdict was the result of prejudice, partiality, or misapprehension of the evidence, unless it plainly appears that such discretion was arbitrarily or unreasonable exercised." Lee v. Geo. Knapp & Co., 137 Mo. 385. (8) "Where there is any evidence, or conflicting inferences may be deduced from the evidence, the question should be submitted to the jury." Bennett v. Terminal R. Ass'n. of St. Louis, 145 S.W. 433, 242 Mo. 125. (9) "Where all the evidence in an action is of such character that it affords no room for reasonable controversy about an ultimate fact, there can be no issue for the jury." Richey v. Woodman of the World, 146 S.W. 461, 163 Mo.App. 235. (10) "Juries may draw conclusions only when founded on facts in evidence, provided the evidence is substantial and a mere scintilla is not sufficient." McNulty v. St. Louis & S. F. Ry. Co., 148 S.W. 977, 166 Mo.App. 439. (11) "Where there is no conflict in the testimony, its legal effect may be declared by the court; but, if the facts are such that reasonable men can draw more than one inference from them, the question is for the jury." Linderman v. Carmin, 164 S.W. 614, 255 Mo. 62. (12) In the evolution of a trial a verdict of a jury may be likened to a correct conclusion in a syllogism and if the conclusion be not correct it would put the law to open shame if a court, having due regard always for the independence of the jury and its power within bounds, did not apply a correcting hand to see that perverted conclusion was corrected." Fisher v. St. Louis, 189 Mo. 574. (13) "Order for a New Trial; appeal. An appeal from an order of the circuit court granting a new trial, brings only the rulings of the trial court on the motion for a new trial to this court for review. The usual and immemorial practice here obtains in considering the sufficiency of the trial court's reasons for granting the new trial, to-wit, the appeal is here for review on matters of law, and not on the weight of the evidence, nor is this court to substitute its discretion for the discretion of the trial court." Haven v. Missouri Ry. Co., 155 Mo. 216. We desire to specially call the court's attention to the following cases: Payne v. Railroad, 129 Mo. 421; Burrell Collins Brokerage Co. v. Hines, 230 S.W. 373.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--This cause of action is of long standing, and is now for the third time under consideration in the appellate courts of this State. The facts can be found stated in the opinion in the case of King v. Mann, 199 S.W. 705, and particularly in King v. Mann, 207 S.W. 836. The judgment appealed from at this time was rendered in the circuit court of St. Clair county, where the cause was taken on a change of venue. After it was submitted to the jury on instructions and a verdict rendered for the defendant, the trial court granted a new trial without stating any reasons therefor in passing upon a motion for new trial which contained a number of grounds set out by plaintiff in the same cause below, respondent here.

From the record in the case before us, and from the opinions of the Kansas City Court of Appeals heretofore referred to, there is nothing before us to show that the trial court had ever granted a new trial on the ground that any of the judgments rendered were against the weight of the evidence. It has been repeatedly held that where such ground is in the motion for new trial and the reasons for a new trial are not given in the order sustaining such motion, the appellate court can and must assume that it was granted on that ground, which is solely within the province of the trial court. The motion for a new trial in this case had several other grounds on which the court might have well granted a new trial. We must, therefore, hold that the appeal from the order sustaining the motion for new trial is improvidently taken.

It has been held that where an order granting a new trial does not specify the ground upon which it is sustained, on appeal the order will be sustained if it is good upon any ground set out in the motion. [Metropolitan Lead & Zinc Co. v. Webster, 193 Mo. 351, 92 S.W. 79.] And, it is further held that whenever the trial court is satisfied that the verdict of the jury is the result of passion and prejudice, it is his duty to grant a new trial, and that such discretion will not be interfered with unless abused. [Rigby v. Transit Co., 153 Mo.App. 330, 133 S.W. 110; Claybaugh v. Railroad, 56 Mo.App. 630.]

Trial courts have wide discretion in passing on motions for new trials, and the presumption obtains in the absence of a showing to the contrary that such trial court did not violate section 1453, Revised Statutes of Missouri, 1919, in granting a second new trial. [Oliver v. Railroad, 211 S.W. 699.]

This, we think disposed of the appeal in this case on the matter of procedure or practice. We are, however thoroughly convinced that under the admitted record evidence and the testimony of the defendants as to what the contract was, there should be a direction to a jury to find a verdict for the plaintiff. Taking the defendant's version of the contract and transactions involved as true and eliminating any oral evidence of the plaintiff, there is no legal defense to this action. To be brief, defendant says that he employed the plaintiff to file a suit in the circuit court to set aside a trustee's sale which had been made, according to his theory, to defraud him out of his property in a corporation, and he says that he employed the plaintiff to bring that suit in the circuit court of Vernon county and to fight it in good faith to a final determination in the circuit court, and that he agreed to pay him $ 100 if he fought the case to final determination in the circuit court and lost; or to pay him $ 200 if he fought it to final determination in the circuit court and won. The record evidence before us shows that the suit was filed, the petition being set out in our record; it shows that the defendants in that suit filed a general demurrer to the petition. It further shows that the court heard the demurrer and sustained it, and that leave was granted by the court to amend his petition on or before the next term of court.

Defendant testified that he stated to the plaintiff, his lawyer in that case, all of the facts that he knew concerning his cause of action and that his attorney read him the petition and that it contained a statement of the facts which he had given to him, and it was on that first petition that the demurrer after consideration by the trial court, was sustained. That, without more, was a final determination of that cause of action in the circuit court and entitled the plaintiff to a fee of $ 100 under defendant's own testimony. Leave was granted, however, to file an amended petition. There is no intimation that in the filing of the original petition or in any conduct or actions of the plaintiff in the trial of the demurrer to the first petition there was any negligence, misconduct or bad faith, but on the other hand the record in the case before us shows...