Ponyard v. Drexel

• Decision Date: 21 October 1947
• Docket Number: No. 27176.,27176.
• Citation: 205 S.W.2d 267
• Parties: PONYARD v. DREXEL.
• Court: Missouri Court of Appeals

205 S.W.2d 267

PONYARD v. DREXEL.

No. 27176.

St. Louis Court of Appeals. Missouri.

October 21, 1947.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Nelson Ponyard against Dr. Jackson R. Drexel, Jr., to recover for injuries sustained by plaintiff when struck by defendant's automobile. From an order sustaining defendant's motion for a new trial after a verdict was returned for plaintiff, plaintiff appeals.

Affirmed and remanded.

Louis Yaffee, of St. Louis (Orville Richardson, of St. Louis, of counsel), for appellant.

Victor Packman, of St. Louis (Annalea Welker, of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff when he was struck by defendant's east-bound automobile while he was in the act of crossing Market Street from south to north on the east side of its intersection with Jefferson Avenue, in the City of St. Louis.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $1,000. Defendant thereafter filed his motion for a new trial, which the court in due time sustained. Plaintiff thereupon gave notice of appeal, and by proper steps has caused the case to be transferred to this court for our review.

In his petition plaintiff pleaded some 10 assignments of negligence, including an assignment under the humanitarian doctrine based upon the hypothesis that after plaintiff came into a position of peril, defendant might have avoided injuring him by stopping the automobile, slackening its speed, or giving a timely warning of its approach. However in submitting his case to the jury plaintiff abandoned all his assignments of primary negligence, and relied entirely upon negligence under the humanitarian doctrine as submitted by plaintiff's instruction No. 1.

As grounds for his motion for a new trial, defendant set up, among other things, that the verdict was against the weight of the evidence, and that the court had erred in giving plaintiff's instruction No. 1. The question of the weight of the evidence was raised by the second ground of the motion, and the alleged error in the giving of plaintiff's instruction No. 1 was called to the court's attention by the fifth and sixth grounds, the latter of which contained seven subdivisions setting out what defendant conceived to be the vices in the instruction, including the insufficiency of the evidence to have justified the court in submitting the case under the humanitarian doctrine.

In granting the new trial the court specified of record that the motion was sustained upon the ground that "it was prejudicial error to give and read to the jury the humanitarian instruction requested by plaintiff referred to in defendant's motion for a new trial".

The order concluded with the notation that a memorandum was being filed, which memorandum, having been referred to in the order, has been included in the transcript, and reads as follows:

"The Court is of the opinion that there was no sufficient evidence to justify the giving of the humanitarian instruction — at least no sufficient evidence upon certain material elements thereof. Moreover, plaintiff's evidence is confusing and unsatisfactory with respect to the accident and the manner of its happening.

"The Court therefore believes that in the interest of justice the motion for a new trial should be sustained."

At the outset of the case, and particularly in oral argument, a controversy has arisen between the parties as to the precise ground upon which the court actually sustained the motion for a new trial. Coupled with such controversy, and indeed inseparably connected with it, is the question of this court's right to look to the lower court's memorandum to ascertain the reason or reasons which prompted the lower court to conclude that it was "prejudicial error" to give plaintiff's instruction No. 1.

While critical of our right to consider the memorandum, plaintiff himself, in his statement of the case, has nevertheless looked to it far enough to note the court's holding that "there was no sufficient evidence to justify the giving of the humanitarian instruction"; and then, since the question in the court's mind was obviously one of the sufficiency of the evidence, plaintiff treats the order as having amounted, in legal effect, to a decision on the court's part that there was no "substantial" evidence to support the instruction. In fact, his sole point relied on in this court is that the lower court erred in sustaining the motion for a new trial "on the assigned ground that there was no substantial evidence to support plaintiff's instruction No. 1"; and his brief is largely given over to an attempt to demonstrate that there was substantial evidence adduced upon each and every predicate of liability embodied in the instruction.

Defendant insists, on the other hand, that the lower court's entire memorandum is properly to be considered along with the record order itself in determining the ground upon which the new trial was granted and that when this is done, the court's reference in its memorandum to the confused and unsatisfactory nature of plaintiff's evidence, as well as to the "interest of justice" in having the case tried anew, must be taken to indicate that while nominally speaking in relation to the instruction, the court actually sustained the motion upon the ground that the verdict was against the weight of the evidence.

It is provided by the present code, just as it was under the former practice, that every order allowing a new trial shall specify of record the ground or grounds upon which the new trial is granted. Laws 1943, pp. 388, 389, secs. 115, 119, Mo.R.S.A. §§ 847.115, 847.119. This is of course in recognition of the settled principle that a court can speak only by its records, which are the evidence of its official acts. Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1007. It follows, therefore, as has been repeatedly said, that the order of court which is entered of record upon granting a new trial is made the sole repository for the recital of the ground or grounds which prompted the court's action, and that a memorandum filed among the papers in the case, or the oral statement of the judge upon announcing his decision, cannot be availed of for the purpose of countervailing or impeaching what the order of record actually recites. Sawyer v. Winterholder, Mo.Sup., 195 S.W.2d 659; Hayward v. Ham, Mo.App., 59 S.W.2d 725; Reissman v. Wells, Mo.App., 258 S.W. 43; State ex rel. Piepmeier v. Camren, 226 Mo.App. 100, 41 S.W.2d 902; Mary Potter Love, Inc. v. Medart, Mo.App., 198 S.W.2d 386; Green v. First Nat. Bank of Kansas City, 236 Mo. App. 1257, 163 S.W.2d 788, 173 S.W.2d 763.

But while a memorandum, or the oral statement of the judge, may not be used to dispute or as a substitute for a record entry showing the ground or grounds upon which a new trial was granted, it does not follow that an appellate court is in all events precluded from considering such memorandum or oral statement in determining precisely why the new...