Title Guaranty & Surety Co. v. Drennon

• Decision Date: 13 June 1914
• Docket Number: No. 10950.,10950.
• Citation: 167 S.W. 1181,181 Mo. App. 198
• Parties: TITLE GUARANTY & SURETY CO. v. DRENNON et al.
• Court: Missouri Court of Appeals

167 S.W. 1181

181 Mo. A. 198

TITLE GUARANTY & SURETY CO. v. DRENNON et al.

No. 10950.

Kansas City Court of Appeals. Missouri.

June 13, 1914.

1. APPEAL AND ERROR (§ 979) — REVIEW — GRANTING NEW TRIAL—DISCRETION.

Action of the trial court, in the exercise of its discretion, in setting aside a judgment as against the weight of evidence, and granting a new trial, will not be reviewed, except on a showing that no verdict for the party to whom new trial is granted would be allowed to stand.

2. APPEAL AND ERROR (§ 706)—RECORD—REVIEW —ABSTRACT.

That the appellate court may pass on the granting of a new trial on the ground that the judgment was against the weight of evidence, the abstract should contain the entire evidence as it was given; appellant's conclusion as to what it is not being enough.

3. PRINCIPAL AND AGENT (§ 175) — VIOLATION OF INSTRUCTIONS—RATIFICATION.

While as between principal and agent more is required than between the principal and third persons dealing with the agent to show ratification, an agent violating his instructions is not liable, if the principal, with knowledge of the facts, ratifies, expressly or impliedly, his acts.

4. NEW TRIAL (§ 79)—WEIGHT OF EVIDENCE —TRIAL BY COURT.

Though trial is by the court without a jury, it may grant a new trial, on the ground that its judgment was against the weight of the evidence.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by the Title Guaranty & Surety Company against William E. Drennon and others. Defendants were granted a new trial, and plaintiff appeals. Affirmed.

Frank M. Lowe, of Kansas City, for appellant. Boyle & Howell, of Kansas City, for respondents.

TRIMBLE, J.

In this case plaintiff, a surety company, sued its agents for damages alleged to have been caused by the latter exceeding their authority in signing a judicial bond. The company obtained judgment. Thereupon defendants filed a motion for new trial, which the court sustained, "for the reason that the finding and judgment was against the evidence and against the weight of the evidence." Plaintiff appealed.

The judgment of the trial court in granting a new trial must be affirmed. Where the trial court exercises its discretionary power of setting aside a judgment on the ground that it is against the weight of the evidence, its action in so doing will not be reviewed, except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. Casey v. St. Louis Transit Co., 186 Mo. 229, loc. cit. 232, 85 S. W. 357; Fitzjohn v. St. Louis Transit Co., 183 Mo. 74, loc. cit. 78, 81 S. W. 907.

Plaintiff claims that is precisely the situation here; that the evidence clearly shows that defendants are liable. Plaintiff's case does not rest entirely upon defendants' admissions, however. It rests to some extent upon plaintiff's testimony. To entitle plaintiff to a judgment, this must be believed by the trier of the fact. But the trier of the fact has said the finding is against the weight of the evidence. If plaintiff had been granted a new trial, and defendants were claiming that no verdict for plaintiff could ever be allowed to stand, this court might very well pay heed to the claim, if, after admitting everything plaintiff claimed, no case appeared. In ...