Ridge v. Johnson

• Citation: 129 Mo. App. 541,107 S.W. 1103
• Parties: RIDGE v. JOHNSON.
• Decision Date: 17 February 1908
• Court: Court of Appeal of Missouri (US)

107 S.W. 1103

129 Mo. App. 541

RIDGE v. JOHNSON.

Kansas City Court of Appeals. Missouri.

February 17, 1908.

1. NEW TRIAL — GROUNDS — FALSITY OF TESTIMONY — DISCRETION OF COURT.

In an action by an employé against his employer for alienation of his wife's affections, plaintiff testified that defendant paid plaintiff's first month's wages to his wife, which was denied by defendant. On verdict for plaintiff, defendant, in his motion for new trial, stated that the testimony of plaintiff concerning the payment of the first month's wages was false; that he was taken by surprise by such testimony, and unable to produce proof of its falsity; that he paid that month's wages to plaintiff by checks, and attached two checks for the amount bearing plaintiff's indorsement. Plaintiff, in his counter affidavit denying surprise and exercise of diligence, did not deny that his testimony was false. Held, that granting a new trial was not an abuse of discretion; Rev. St. 1899, § 800 [Ann. St. 1906, p. 761], making perjury or mistake of a witness ground for new trial.

2. SAME — MOTION — DEFECTS IN AFFIDAVITS.

Where a motion for a new trial is not required by statute to be supported by affidavit, it is not ground for objection that the affidavit is defective.

3. SAME — DISCRETION OF JUDGE.

The discretion of a judge in granting a new trial is limited only by the rule that it must not be arbitrarily exercised, but must rest on a reasonable foundation of fact.

Appeal from Circuit Court, Holt County; William C. Ellison, Judge.

Action by John A. Ridge against Elmer Johnson. There was a verdict for plaintiff, and from an order granting a new trial, plaintiff appeals. Affirmed.

W. W. Ramsey, R. B. Bridgeman, and B. Raleigh Martin, for appellant. W. E. Stubbs and Reed, Yates & Mastin, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for the alienation of the affections of his wife. A verdict was returned in his favor; but defendant's motion for a new trial was sustained, and plaintiff appealed.

Defendant, a widower, employed plaintiff and his wife to work on his farm, the husband as laborer, the wife as housekeeper, and agreed to pay plaintiff $25 per month for their services. Plaintiff, the only witness who testified to inculpatory conduct of his wife with defendant, stated, among other things, that without his knowledge or consent defendant paid his wages for the first month to his wife. His account of what transpired is as follows: "Well, sir, after three days — after the month was over three days — I was down, I and Mr. Johnson, was down to the barn harnessing up the teams to go to work. Says I, `Mr. Johnson, according to our agreement, I believe we were to settle up every month.' Says he, `Yes, sir; that is right.' Says he, `I settled with your wife.' Says I, `She never said a word to me,' and, says I, `You never said nothing.' And, says I, `What kind of a way is this of doing business?' Says he, `I thought that was all right.' Says I, `After this, settle with me.' Says I, `I am doing the work,' and, says I, `We made the contract, and I want you to settle with me.'" Counsel for defendant, on cross-examination, endeavored unsuccessfully to extract the admission that plaintiff was mistaken in this testimony. Defendant, on the stand, insisted that he settled with plaintiff and paid him his wages for the first month, and denied having any conversation with plaintiff on that subject. Defendant filed a motion for a new trial, and the day after (and within four days after the verdict was rendered) filed a "supplemental motion for a new trial," in which he alleged the following ground: "That on the trial of said cause * * * plaintiff testified that the defendant paid to said Ridge's wife, without his instructions, and against his will, all moneys due said John A. Ridge for the first month's work performed by him for ...