Thurman v. Wells

• Decision Date: 08 May 1923
• Docket Number: No. 18064.,18064.
• Citation: 251 S.W. 75
• Parties: THURMAN v. WELLS.
• Court: Missouri Court of Appeals

251 S.W. 75

THURMAN v. WELLS.

No. 18064.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by Jewell B. Thurman against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and from an order granting the defendant new trial, plaintiff appeals. Reversed and remanded, with directions.

W. H. Douglass and Wilfley, Williams, McIntyre, Hensley & Nelson, all of St. Louis, for appellant.

Charles W. Bates, T. E. Erancis, and, J. P. Evans, all of St. Louis, for respondent.

NIPPER, C.

Plaintiff brought suit against the defendant for personal injuries alleged to have been sustained by him as the result of being thrown from one of defendant's street cars. In view of the questions presented here on this appeal, it is not necessary to set out the evidence in detail or refer particularly to the pleadings. Among the injuries alleged to have been sustained by Plaintiff was one that, as a result of his fall when he was thrown from defendant's street car due to defendant's negligence, he developed a hernia which necessitated an operation. Plaintiff recovered judgment, and defendant, in due time, and during the same term of court at which judgment was rendered, filed his motion for a new trial. This motion was not acted upon during the term at which it was filed, but was continued to a subsequent term. At the subsequent term to which the motion was continued, and prior to the time said motion was acted upon, several affidavits were filed by defendant, which said affidavits would tend to show that plaintiff suffered the hernia in question prior to the time he received his alleged injuries by being thrown from defendant's street car. There is nothing to indicate in any way that due diligence had been used by defendant in procuring this evidence prior to the trial. Several counter affidavits were filed by the plaintiff tending to dispute and deny the facts as stated in defendant's affidavits. There was no reference made in defendant's motion for new trial to any newly discovered evidence, nor to the failure to procure the evidence contained in the affidavits. The court sustained defendant's motion for new trial, and plaintiff has appealed from the order granting same, which order is as follows:

"The court having heard and duly considered the defendant's motion for new trial, heretofore in due time filed and submitted herein, and defendant also having heretofore filed on the 16th day of February certain affidavits relating to newly discovered evidence, and plaintiff having also filed certain affidavits relating to the same matter, but said motion for new trial not containing the ground or matter referred to in said affidavits filed by the parties hereto, and the court having considered said motion for newtrial on the grounds therein contained and also the additional ground set out in said affidavits, and being satisfied that the court cannot grant a new trial on account of any error assigned in said motion for new trial of defendant, but being of the opinion that the matter referred to in said affidavits should be submitted to the jury, it is therefore ordered by the court that the verdict and judgment rendered in favor of the plaintiff on the 26th day of January, 1922, for the sum of $5,000 and interest be, and the same is hereby, set aside and vacated for the reason that the affidavits filed by defendant on the 16th day of February, 1922, and subsequent to the filing of the motion for new trial and not mentioned therein, contained evidence not in possession of the defendant at the trial of the case, which the court is of the opinion the defendant should be allowed an opportunity of presenting to the jury."

Plaintiff, who is appellant here, urges as a ground for reversal of this order and judgment that the trial court had no authority to set aside the verdict and judgment and grant a new trial at a subsequent term of court to that at which said verdict and judgment were rendered, on the ground of newly discovered evidence, when no such ground is mentioned in the motion for a new trial.

In our opinion plaintiff's point is well taken. As stated in Gray v. Missouri Lumber & Mining Co. (Mo. Sup.) 177 S. W. 595, where an almost identical situation was discussed by the Supreme Court, the affidavits filed in support of ...