Lowery v. Kansas City
Decision Date | 09 July 1935 |
Docket Number | No. 32205.,32205. |
Citation | 85 S.W.2d 104 |
Parties | NANCY LOWERY, Appellant, v. KANSAS CITY, a Municipal Corporation. |
Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. — Hon. T.J. Seehorn, Judge.
AFFIRMED AND REMANDED.
Harry G. Kyle and Walter A. Raymond for appellant.
(1) The motion for new trial was passed on at a subsequent term of court. The trial court therefore had no right to sustain the motion on a ground not specified in said motion. Taylor v. Ry. Co., 63 S.W. (2d) 72; Herbert v. Hawley, 32 S.W. (2d) 1097. (2) Respondent failed to take the necessary steps to preserve the grounds for new trial because of surprise or newly discovered evidence. (a) Appellant did not call the trial court's attention to the fact it was surprised by the testimony of Dr. Potter, asked no delay nor continuance, and for the first time raised the point in the motion for new trial which comes too late to preserve the point. Christesen v. Prewett, 11 S.W. (2d) 1112; Page v. Payne, 240 S.W. 161; Thiele v. Citizens' Ry. Co., 140 Mo. 338; Barnes v. Childers, 246 S.W. 344. (b) Respondent's motion for a new trial is not sufficient to preserve an assignment of newly discovered evidence. It does not set out the facts showing due diligence nor does it set out sufficiently the alleged newly discovered evidence. State v. Sherry, 64 S.W. (2d) 240; State v. Smith, 247 S.W. 157; Fox v. Windes, 127 Mo. 512. (c) Appellant's counsel failed to ask a continuance, or ask the recall of respondent's witness, Dr. Potter, and failed to cross-examine Dr. Potter extensively. This shows a want of diligence requiring the denial of a new trial. State v. Murphy, 29 S.W. (2d) 147; State v. Henson, 234 S.W. 834. (3) The alleged newly discovered evidence with reference to the alleged alteration of the hospital records is cumulative to the testimony of Dr. Koritschoner and has the sole function of impeaching appellant's witness, Dr. Potter. Such evidence even if newly discovered would be no valid ground for new trial. Sang v. St. Louis, 262 Mo. 454, 171 S.W. 351; Leister v. Wells, 254 S.W. 77; Fischman v. Schultz, 55 S.W. (2d) 319; Stahlman v. United Rys., 183 Mo. App. 144, 166 S.W. 315.
George Kingsley, James R. Sullivan and Arthur R. Wolfe for respondent.
(1) The trial court sustained defendant's motion for new trial on account of misconduct of witnesses and for the production and use of mutilated hospital records, which specified reasons for granting a new trial were grounds contained in the motion for new trial. The trial court had authority to grant a new trial. Beer v. Martel, 332 Mo. 53, 55 S.W. (2d) 484; Bright v. Wheelock, 20 S.W. (2d) 698; McCarty v. St. Louis Transit Co., 192 Mo. 396, 91 S.W. 133. (2) Appellant's argument under Points 2, 3 and 4, is based on surprise and newly discovered evidence, which contention is foreign to the issues presented by the record. Nogalski v. Foundation Co., 199 S.W. 180. (3) The action of the trial court in granting defendant a new trial was justified by reason of other errors committed during the course of the trial which were not assigned by the court as reasons for granting a new trial. One of which other errors was the failure of the trial court to give defendant's instructions in the nature of demurrers at the close of plaintiff's case and at the close of all the evidence in the case. Simmons v. Kansas City Jockey Club, 66 S.W. (2d) 120; Ostrander v. Messmer, 315 Mo. 1165, 289 S.W. 1173; Cole v. Ry. Co., 332 Mo. 999, 61 S.W. (2d) 348; R.S. 1929, secs. 8094, 8104, 8115, 8131, 8132, 8133, 8134, 8139; Howsmon v. Trenton Water Co., 119 Mo. 306, 24 S.W. 314; Lawrence v. Fox, 30 N.Y. 268; Metz v. Waterworks & El. Lt. Co., 202 Mo. 324, 100 S.W. 337; Phoenix Ins. Co. v. Trenton Water Co., 42 Mo. App. 118; State v. Ry. Co., 125 Mo. 617; Houck v. Cape Girardeau Waterworks & El. Lt. Co., 114 S.W. 1104; Reardon v. St. Louis County, 36 Mo. 555; Lamar v. Bolivar Spec. Road Dist., 201 S.W. 890; 43 C.J. 1059; 4 Dillon on Mun. Corps. (5 Ed.) 2976. sec. 1701; 7 McQuillin on Mun. Corps. (2 Ed.) 219, sec. 2995: Duly v. Town of Smithland, 192 S.W. 23; Downend v. Kansas City, 156 Mo. 60, 56 S.W. 70; 4 Dillon on Mun. Corps. (5 Ed.) 2996, sec. 1710; Murphy v. Town of Norfolk, 94 Conn. 592, 110 Atl. 63; Kansas ex rel. Blumb v. O'Connell, 99 Mo. 357, 128 S.W. 791: Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 432; Styles v. Long, 57 Atl. 448; Cochran v. Pub. Serv. & Elec. Co., 117 Atl. 621; Cleveland v. Town of Lancaster, 267 N.Y. Supp. 239; Fleisher & Co. v. Cornwell, 328 Mo. 998, 43 S.W. (2d) 1008. (4) The trial court was warranted in granting defendant a new trial because the deed and agreement entered into between the State and city pertaining to the control and maintenance of the A.-S.-B. Bridge was not competent evidence in this case and the trial court erred in permitting plaintiff to offer said deed and agreement in evidence and in permitting plaintiff to read same to the jury. Greene v. Gallagher, 35 Mo. 226; 49 C.J. 791, sec. 1167; Brooks v. Blackwell, 76 Mo. 309; Silverthorne v. Summit Lbr. Co., 190 Mo. App. 716, 176 S.W. 726; Burgher v. Railroad Co., 139 Mo. App. 62, 120 S.W. 75; Anderson v. Ry. Co., 161 Mo. 420, 61 S.W. 874. (5) The trial court was further justified in sustaining defendant's motion for new trial because the court erred in permitting plaintiff to try this case on a wholly different theory from that alleged in plaintiff's petition and there was a fatal variance between plaintiff's pleadings and plaintiff's evidence. Gary v. Averill, 321 Mo. 840, 12 S.W. (2d) 750; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W. (2d) 686; Neudecker v. Kohlberg, 81 N.Y. 296; Minn. Harvester Works v. Smith, 30 Minn. 399, 16 N.W. 462; Galveston, H. & S.A. Railroad Co. v. Hennigan, 33 Tex. Civ. App. 314, 76 S.W. 452; Pierce v. Carey, 37 Wis. 232; Western Maryland Railroad Co. v. Schaun, 97 Md. 563, 55 Atl. 701. (6) The court was authorized to grant defendant a new trial in that the court erred in giving plaintiff's Instruction 1, because it was not based on the issues raised by the pleadings and predicates a recovery on a theory different from that presented by the petition. Degonia v. Ry. Co., 224 Mo. 589, 123 S.W. 589; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 653, 195 S.W. 722. (7) The bridge contract was ultra vires and not binding on Kansas City in so far as it imposed or attempted to impose any liability on the city for damages on account of injuries to the traveling public while the city has no control over the bridge and right to regulate travel thereover. R.S. 1929, secs. 8133, 8134, 8139; Maus v. Springfield, 101 Mo. 613, 14 S.W. 630; Carthage v. Garner and Lawson, 209 Mo. 688, 108 S.W. 702; 4 Dillon on Mun. Corps. (5 Ed.) 2991, sec. 1708.
This case, coming recently to the writer, is an action for damages for personal injuries. Plaintiff obtained a verdict for $10,000, but the court granted defendant a new trial, "on account of misconduct of witnesses, and for the production and use of mutilated hospital records," and from this order and judgment plaintiff has appealed.
The facts concerning the accident as related by plaintiff's witnesses are stated in plaintiff's brief, as follows:
[1] The ground upon which the court granted defendant a new trial was one that had to do solely with the issue of the character and extent of plaintiff's...
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