Reissman v. Wells

• Decision Date: 08 January 1924
• Docket Number: No. 18375.,18375.
• Parties: REISSMAN v. WELLS.
• Court: Missouri Court of Appeals

258 S.W. 43

REISSMAN v. WELLS.

No. 18375.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Appeal from St. Louis Circuit Court; Victor II. Falkenhainer, Judge.

"Not to be officially published."

Action by Anna Reissman against Rolla Wells, Receiver for the United Railways Company of St. Louis, Mo. Verdict for defendant, and from an order `granting plaintiff's motion for a new trial, defendant appeals. Order affirmed, and cause remanded.

Charles W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant.

Jacob Mellman and Curlee & Hay, all of St. Louis, for respondent.

SUTTON, C.

This is an action for damages for personal injuries. Plaintiff was a passenger on defendant's street car, and on arriving at plaintiff's destination the car was stopped to discharge passengers, and while plaintiff was in the ant of alighting from the car she fell to the pavement, thereby sustaining serious and permanent injuries. Plaintiff's evidence tended to show that while plaintiff was in the act of alighting the car started with a sudden jerk, thus causing her to fall. Defendant's evidence tended to show that the car remained stationary while the plaintiff was alighting. The cause was tried to a jury. There was a verdict for defendant. The court sustained plaintiff's motion for a new trial, and thereupon ordered a new trial of the cause. From this order the defendant appeals.

The plaintiff assigned, among other things, as grounds for a new trial: (1) That the verdict was against the evidence and the weight of the evidence; (2) that the verdict was the result of passion and prejudice on the part of the jury; and (3) that the foreman of the jury, though he had sworn upon his voir dire that be was not prejudiced against Jews as a class or against plaintiff, who is a Jewess, was in fact bitterly and. intensely prejudiced against Jews generally, and against the plaintiff in particular, and made an impassioned appeal to the jury against all Jews and foreigners, and thereby greatly influenced the verdict of the jury.

Plaintiff filed in support of her motion for a new trial the affidavit of John Weisert, a juror, who did not concur in the verdict, in which the juror deposed that the foreman of the jury, though he had sworn upon his examination as to his qualifications as a juror, that he had no prejudice or bias against the Jewish race, or against plaintiff, on account of the fact that she was a Jewess, nevertheless, after the cause was submitted to the jury, and while the jury were deliberating upon their verdict, made many statements indicating that he was bitterly and intensely prejudiced against Jews, and against the plaintiff, on account of the fact that she was a Jewess, and in spirited, intense, and insistent fashion delivered himself of the following utterances

"If the Jews and foreigners would quit making these claims against "the street railway company, we would get the five cent fare back on the street cars. The lawyer who represented plaintiff is a Jew, and happened to see this accident, "and managed to get the case, and thought he would make a case out of it. These Jews stick together in these matters, and will testify to anything in order to help each other out."

The trial was had at the March term, 1922. The motion for a new trial was filed at the same term and within four days after the return of the verdict. The supporting affidavit was filed at the succeeding April term, and afterwards at the June term the motion was sustained. Defendant filed no counter affidavits, and made no objection to the consideration by the court of the affidavit filed by plaintiff, did not move to strike the affidavit from the files or attack it in any way in the trial court, and took no exceptions to the consideration of it by the court in support of the motion for a new trial.

The ground specified of record by the court for sustaining the motion for a new trial is that the court was of the opinion "that the verdict was the result of prejudice and bias." It is disclosed by the bill of exceptions that, at the time the motion for a new trial was sustained, the trial judge filed a memorandum in writing, stating in detail his reasons for sustaining the motion. There is no provision of law for the filing of a written memorandum by the trial judge stating his reasons for sustaining a motion for a new trial. The sole repository for the court's reasons or grounds for sustaining a motion for a new trial is the order of the court entered of record upon sustaining the motion. It is made so by express statutory enactment. Whatever the trial judge may have said ore tenus, or by written memorandum filed, in sustaining the motion for a new trial, his ultimate decision must be conclusively presumed to be embodied in his order entered of record sustaining the motion. Section 1454, R. S. 1919; Taylor v. Scherpe & Koken Architectural Co., 47 Mo. App. 257, loc. cit. 260; Missouri, K. & E. Ry. Co. v. Holschlag, 144 Mo. 253, loc. cit. 257, 45 S. W. 1101, 66 Am. St. Rep. 417; Hewitt v. Steele, 118 Mo. 463, loc. cit. 472, 24 S. W. 440; Lindsay v. Shaner, 291 Mo. 297, loc. cit. 301, 236 S. W. 319.

Every reasonable inference will be indulged in favor of right action on the part of the trial court in sustaining a motion for a new trial. So, too, the trial court is allowed a wide discretion in ruling upon a motion for a new trial, and appellate courts are reluctant to interfere with the exercise of such discretion. This is particularly true where the motion for a new trial has been sustained upon the ground that the verdict is against the weight of the evidence, or was influenced by the misconduct of some one or more of the jurors, or for any incident occurring during the trial, the effect of which lies peculiarly within the knowledge of the trial court. Rulings of trial courts in sustaining motions for new trials upon such grounds are rarely interfered with by the appellate courts. Barr v. Hays, 172 Mo. App. 591, loc. cit. 599, 155 S. W. 1095; Turnbow v. Kansas City Railways Co., 277 Mo. 644. loc. cit. 655, 211 S. W. 41; Dysart-Cook Mule Co. v. Reed & Heckenlively, 114 Mo. App. 296, loc. cit. 307, 89 S. W. 591; Paul v. Dunhan (Mo. App.) 214 S. W. 263, loc. cit. 266; Karnes v. Winn, 126 Mo. App. 712, loc. cit. 714, 105 S. W. 1098; Herndon v. Lewis, 175 Mo. 116, loc. cit. 125, 74 S. W. 976; Dickmann v. Hespos, 141 Mo. App. 119, loc. cit. 121, 121 S. W. 325; Haven v. Missouri R. Co., 155 Mo. 216, 55 S. W. 1035; Thompson v. Metropolitan Street Railway Co., 140 Mo. 125, loc. cit. 145, 41 S. W. 454; Laevel v. Johnston, 209 Mo. App. 197, 232 S. W. 1064, loc. cit. 1065; Harris v. McQuay (Mo. App.) 242 S. W. 1011, loc. cit. 1012.

In the instant case it was the opinion of the court, as specified of record, that the verdict was the...