Thiele v. Citizens' Railway Company

Decision Date22 June 1897
Citation41 S.W. 800,140 Mo. 319
PartiesThiele v. Citizens' Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed and remanded (with directions).

Smith P. Galt for appellant.

(1) Defendant's affidavit for continuance strictly followed and complied with the provisions of the statutes of Missouri in such case made and provided. R. S. 1889, secs. 2124, 2126 2127. (2) The court decided said motion was sufficient and complied with the law, when presented to the court, and on the motion for a new trial the court holds the same was sufficient, but the same "was not supported by the facts as appeared by the evidence adduced at said trial." (3) The said motion and affidavit, being preliminary to the trial and not part of it, and the only question to be determined thereby being whether the defendant shall have a continuance or be forced to a trial by the plaintiff, the affidavit is not required, under the law, to be "supported by the facts as the same appear by the evidence at the trial;" but all that is required is that it shall appear that the affidavit itself is "sufficient," that is, that it "contains a sufficient statement of facts as herein required." R. S. 1889, sec. 2127. (4) The statute contemplates that a party to the suit shall have the evidence of all the witnesses that he deems necessary to support his cause of action, or defense, as the case may be, and no party would jeopardize his case by making an affidavit for continuance, if after the trial a verdict is to be set aside and the cause determined by a comparison of the affidavit with the entire evidence of both sides in the case, adduced at that trial. (5) The court, in its disposition of the motion for new trial, did not hold that the affidavit was false or fraudulent, as alleged in the motion for new trial but merely that it was not "supported by the facts as they appeared by the evidence."

Kinealy & Kinealy for respondent.

(1) It is well settled law in this State that the granting of a new trial is a matter that is largely within the discretion of the trial court, and before an order sustaining a motion for a new trial will be reversed it must be made plainly to appear that the court abused its discretion in making that order. Bank v. Armstrong, 92 Mo. 265; McKay v. Underwood, 47 Mo. 187; McDonough v. Nicholson, 46 Mo. 35; Eidemiller v. Kump, 61 Mo. 342; McCullough v. Phoenix Ins. Co., 113 Mo. 606. (2) This court in passing upon the question as to whether or not error was committed will look not only to the reason set forth in the record by the trial court as the ground upon which it sustained the motion for a new trial, but also to the motion itself, and if the action of the trial court in granting a new trial can be sustained either upon the ground given by the court as its reason for sustaining the motion, or upon any of the grounds set forth in the motion for a new trial, the judgment will be affirmed. Lovell v. Davis, 52 Mo.App. 342; Hewitt v. Steele, 118 Mo. 463. If the court committed error to the prejudice of plaintiff in holding that the defendant was entitled to a continuance unless the plaintiff admitted that if the absent witnesses were present they would testify to the facts set forth in that affidavit, then it was certainly justified in undoing that error by sustaining the motion for a new trial. State v. Maddox, 117 Mo. 667; State v. Banks, 118 Mo. 117; State v. Howell, 117 Mo. 307; State v. McCoy, 111 Mo. 517; State v. Dettmer, 124 Mo. 426; State v. Good, 33 S.W. 790; Freleigh v. State, 8 Mo. 608; Bartholow v. Campbell, 56 Mo. 117; State v. Simms, 68 Mo. 305; State v. Lett, 85 Mo. 52. (3) Having taken the position that it had no witnesses except the absent ones who could testify to the facts set forth in the affidavit, defendant will not be allowed to afterward take the contrary position that it had four such witnesses. Bigelow on Estop. [5 Ed.] 673, 717; Brown v. Bowen, 90 Mo. 184; McClanahan v. West, 100 Mo. 309; Tower v. Moore, 52 Mo. 118; Smiley v. Cockrell, 92 Mo. loc. cit. 112; Bensieck v. Cook, 110 Mo. 173.


Robinson, J.

This is an action to recover damages for personal injuries sustained by plaintiff on account of the alleged negligence of the servants and employees of the defendant company in managing and operating one of its trains of cars. The suit was brought in the circuit court of the city of St. Louis, and the cause was removed by change of venue to the St. Charles county circuit court. The answer, after admitting that defendant was a corporation operating a cable street railway along Franklin avenue in the city of St. Louis, is a general denial coupled with a plea of contributory negligence. The issue was joined by reply. The case was tried before a jury who rendered a verdict in favor of defendant.

Plaintiff in due time filed his motion to set aside the verdict and for a new trial, assigning the following grounds therefor:

"Because the court erred in ruling that the affidavit for a continuance presented by the defendant was sufficient, and erred in overruling plaintiff's objections thereto and in compelling plaintiff to elect as to whether or not he would proceed to trial thereon.

"Because the affidavit for a continuance filed by the defendant herein was false, as a matter of fact, and was shown so to be by the testimony on behalf of the defendant on the trial of the cause.

"Because the filing by the defendant of the affidavit for a continuance was a mere trick, device, and fraud on the part of the defendant for the purpose of compelling a continuance of the cause, or else that plaintiff would admit that the persons named in said affidavit would testify as to the facts therein stated.

"Because the plaintiff consented that the statement of Lerous and Robinson, as set forth in said affidavit, might be read to the jury in lieu of their testimony on the faith of the statement, in said affidavit contained, that the defendant knew of no other person by whom he could prove said facts, and said statement in said affidavit was untrue, and thereby plaintiff was entrapped into said admission and was deceived and wronged by said untrue statement in said affidavit.

"Because the verdict of the jury was procured by the use by the defendant of the said untrue and false affidavit for a continuance.

"Because the plaintiff was surprised by the defendant introducing witnesses to testify to the same facts, as set forth in the affidavit for a continuance, as the testimony of said Lerous and Robinson.

"Because the defendant practiced a fraud on the plaintiff by means of and use of a false affidavit for a continuance.

"Because the verdict in this case was procured by the fraud of the defendant by means and use of the said false affidavit for a continuance.

"Because the court erred in refusing to sustain plaintiff's motion to strike out certain portions of the testimony of the witnesses for the defendant on the trial.

"Because the court refused to admit competent and legal evidence offered by the plaintiff.

"Because the court admitted illegal and incompetent evidence offered by the defendant.

"Because the court gave to the jury illegal and improper instructions asked by the defendant.

"Because the verdict of the jury was against the evidence and against the weight of the evidence.

"Because the verdict of the jury was procured through fraud and deception practiced by the defendant on the trial of the case.

"Because the verdict of the jury should have been in favor of the plaintiff, and against the defendant."

The motion for new trial was sustained, and the verdict was set aside. The ground upon which the trial court sustained the motion, as shown by the record, was "that defendant's affidavit for a continuance, filed on the day of the trial of this case, was not supported by the facts as appeared by the evidence adduced at said trial." Whereupon defendant appealed to this court, complaining of the action of the trial court in setting aside the verdict and granting a new trial.

The petition charges: "That on the 21st day of September, 1893, plaintiff was on the corner of 21st street and Franklin avenue, in said city, at a place where it was usual and customary for defendant's trains to stop to take on and discharge passengers; that desiring to take passage on one of defendant's trains passing westwardly along said Franklin avenue, he stood in proper position, and as one of said trains approached from the east plaintiff in due time signaled to the motorman in charge of said train to stop the same in order that plaintiff might take passage thereon; that said motorman saw plaintiff and received said signal and immediately began to stop said train, and when said train had been brought almost to a stop and was running very slowly, plaintiff took hold of one of the upright roof supports of the grip car of the said train, and proceeded to get upon said car, and while plaintiff still had hold of the same as aforesaid, the said gripman without any warning or notice to plaintiff, negligently and carelessly, and with a violent jerk and jar, suddenly started said train forward and suddenly increased the speed thereof, and because of said jerk and jar and sudden starting aforesaid, plaintiff was without warning violently jerked and thrown to the ground, and his left leg fell under said car, and the wheels thereof passed over the same, whereby plaintiff's lower left leg and foot were badly crushed, mangled, and broken."

When the case was called for trial, defendant presented his application for a continuance, on the ground of the absence of two witnesses, Alexander Lerous and Philip Robinson. The affidavit for continuance,...

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