Luyties v. Hardy

• Decision Date: 28 April 1903
• Citation: 74 S.W. 167,101 Mo.App. 693
• Parties: HERMAN C. G. LUYTIES, Appellant, v. JAMES HARDY, Respondent
• Court: Missouri Court of Appeals

74 S.W. 167

101 Mo.App. 693

HERMAN C. G. LUYTIES, Appellant, v. JAMES HARDY, Respondent

Court of Appeals of Missouri, St. Louis

April 28, 1903

Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.

AFFIRMED AND REMANDED.

Order affirmed and cause remanded.

John H Boogher for appellant.

(1) The action of the circuit court in granting a new trial is subject to review by the appellate courts. Hill v Wilkins, 4 Mo. 86. Said Justice Wash (1835): "It may now be considered settled law in this court that the discretionary power of the circuit court, in granting and refusing new trials, is subject to review by this court, and that its judgments therein will be reversed whenever it may be seen by this court that such discretionary power has not been soundly exercised." In this case the circuit court was directed to set aside the award of a new trial and to enter up a judgment in the cause according to the verdict of the jury. (2) A new trial should not be granted except for error that is prejudicial to the substantial rights of the complaining party upon the merits of the case. Ittner v Hughes, 133 Mo. 689. Said Judge Barclay: "To warrant a new trial, the error must have occasioned an improper or unjust result. It must have been prejudicial to the substantial rights of the complaining party upon the merits of the cause." R. S. 1899, secs. 800, 865, 659.

John S Leahy for respondent.

(1) The evidence tends to show that the boy, in whose charge the horse was at the time of the runaway, was as competent and capable of handling the animal as any man accustomed to handling horses, and the inference is irresistible that, no matter who might have had charge of the horse on the occasion in question, the runaway could not have been prevented, and the verdict of the jury was, therefore, against the evidence and the weight of the evidence, and on that ground the court would have been justified in setting it aside. The action of the trial court in granting a new trial will be sustained by the appellate court if it can be done upon any of the grounds set out in the motion for that purpose, even though the grounds upon which it was granted had been entered of record, and notwithstanding the court may have given a wrong reason for sustaining the motion. Hewett v. Steele, 118 Mo. 463.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

--We are asked by the appellant to reverse the ruling of the circuit court in sustaining respondent's motion for a new trial, on the ground that the damages awarded the appellant by the jury were excessive.

The action is one to recover the value of a horse, owned by the appellant and boarded at the respondent's livery stable and the value of two laprobes and coachmen's coats. The basis of the action as to the horse is, that he was killed in a runaway caused by the negligence of a boy driver in whose charge he was put by respondent Hardy, contrary to the order of Luyties, the appellant; and on this cause of action including the value of the...