Van Loon v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 30 March 1917
• Docket Number: No. 18135.,18135.
• Citation: Van Loon v. St. Joseph Ry., Light, Heat & Power Co., 195 S.W. 737, 271 Mo. 209 (Mo. 1917)
• Court: Missouri Supreme Court
• Parties: VAN LOON v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

195 S.W. 737

271 Mo. 209

VAN LOON v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

No. 18135.

Supreme Court of Missouri, Division No. 1.

March 30, 1917.

Rehearing Denied June 1, 1917.

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Action by Freda Van Loon against the St Joseph Railway, Light, Heat & Power Company. An order granting defendant a new trial after a verdict for plaintiff was affirmed by the Kansas City Court of Appeals (174 Mo. App. 372, 160 S. W. 63), and case certified to the Supreme Court. Reversed and remanded, with directions to enter judgment on the verdict.

Brewster, Farrell & Mayer and R. E. Culver, all of St. Joseph, for appellant. Robert A. Brown, of St. Joseph, for respondent.

GRAVES, J.

This case has been duly certified to this court by the Kansas City Court of Appeals. The majority opinion (174 Mo. App. 372, 160 S. W. 63) sustained the action of the trial court. The dissenting judge takes a contrary view. The question involved is single and pointedly made. Plaintiff had a verdict below, and this verdict was set aside by the trial judge. The opinion of the Court of Appeals thus states the necessary facts (clearly, but somewhat strongly stated) for a determination of the question involved:

"Appellant sued for damages alleged to have been caused by a fall received while attempting to alight from defendant's street car. The charge is that the fall was brought about by the careless jerking or sudden starting of the car while appellant was in the act of stepping off. The answer was a general denial and a plea that her injury, if any, resulted from her own negligence in stepping from the car before it came to a stop."

At the September term, 1908, the case was tried before Judge Ramey and a jury, and a verdict was returned against respondent for $5,700. This verdict was set aside by the trial court "for the reasons that the verdict is against the weight of the evidence, and for misconduct of the jury in arriving at said verdict." Thereafter the case was twice tried, once at the May term, 1909, and again at the January term, 1910, each time resulting in a hung jury. At the May term, 1911, the case was tried for the fourth time, and a verdict was returned for appellant in the sum of $4,000.

A motion for new trial was in due time filed, the grounds of which, among others, were that the verdict was against the weight of the evidence; that it was so grossly against the overwhelming weight of the evidence as to shock the conscience and indicate that the jury was influenced by passion and prejudice and did not consider the evidence in the case or the instructions of the court; that the verdict was out of all proportion to the injuries proved and was so excessive as to shock the conscience and indicate that the jury disregarded both the evidence and instructions and returned a verdict based on passion and prejudice rather than on the law and the evidence; that improper and unlawful methods were employed to induce members of the jury to find a verdict for the plaintiff; that one J. Elliston made certain efforts to see and influence the jury in favor of plaintiff during the trial; that he had a list of the jurors and was endeavoring to reach them and improperly influence them in plaintiff's favor, but that he failed to reach the juror he was attempting to reach when discovered; that, during the trial of the case, a certain man named in said motion, and who was friendly to and apparently deeply interested in plaintiff's side of the case, was frequently in the courtroom observing the conduct and progress of the trial, consulting with persons interested in plaintiff's case, and frequently talked with one of the jurymen, and that said actions and conversations so aroused the suspicions of defendant's officers that one of them went to the man and told him his actions had been observed and commented upon, and that they were not consistent with disinterested motives, and requested him to let the jury alone and not attempt to interfere further in the case, but that said person did not comply with the request, but continued to visit saloons and theaters with said juror at night during the trial and before the rendition of the verdict; and that such facts were reported to the trial judge during the trial.

Various affidavits were filed in support of and also in opposition to the motion for new trial. Two of respondent's affidavits, stating that neither respondent nor its attorneys learned of the attempt of said Elliston to reach or influence the jury until after the verdict was returned, were not filed within the time allowed by the court for filing affidavits. And objection is made by appellant to said two affidavits for that reason. These two were filed before the motion was passed on, and by permission of the court. It being within the discretion of the court whether he should allow them to be filed and considered, and he having done so, his action in that regard cannot be reviewed by us. After having said motion for new trial under advisement for some time, the trial judge sustained the same, and had his reasons therefor entered of record as follows:

"All the points presented by the defendant in this motion for a new trial are overruled, except that the court says as follows: `That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors; that he did not reach the juror that he attempted to influence, but that he had with him a card to which he referred, upon which he apparently had the names of several persons, presumably jurors; that he was making an effort to influence this juror on behalf of the plaintiff, and the circumstances are so suspicious with reference to this party, Mr. Elliston, that in view of the fact that this verdict is against the weight of the evidence and in view of these suspicious circumstances with reference to the jury, the court sets this verdict aside. The juror attempted to be influenced was Juror Kendall, who did not sign the verdict.' From the order granting defendant a new trial, plaintiff appealed."

Under the law the case as it comes from the circuit court is here for disposition de novo, whether the dissenting judge in pointing out that the majority opinion conflicts with other appellate rulings is right or wrong. The law leaves the case here for determination, just as if it had been regularly appealed to this court in the first instance. However, in this case the whole fight here, as well as in the Court of Appeals, seems to be centered around the one question, as to whether or not the trial court had the right to set aside this second verdict for plaintiff under the facts before it, for the reason assigned by such court.

I. A determination of the question involved here calls for an interpretation of the reason assigned by the trial court for its action in setting aside the verdict of the jury. A verdict had once been set aside in this case on the ground that such verdict was against the weight of the evidence, and under our statute (section 2023, R. S. 1909) a second verdict could not be set aside upon that ground. The learned writer of the majority opinion in the Court of Appeals recognizes this fact in the opinion, but places his opinion upon the ground that the reason assigned by the trial court is not to the effect that he set aside the verdict on the ground that it was against the weight of the evidence. For this reason we say the reason given by the trial court must be interpreted from the language used. To have the language before us we requote it, thus:

"All the points presented by the defendant in this motion for a new trial are overruled, except that the court says as follows: `That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors; that he did not reach the juror that he attempted to influence, but that he had with him a card to which he referred, upon which he apparently had the names of several persons, presumably jurors; that he was making an effort to influence this juror on behalf of the plaintiff, and the circumstances are so suspicious with reference to this party, Mr. Elliston, that in view of the fact that this verdict is against the weight of the evidence, and in view of these suspicious circumstances with reference to the jury, the court sets this verdict aside. The juror attempted to be influenced was Juror Kendall, who did not sign the verdict.'"

We do not agree with our learned Brothers, when they hold that this language does not mean that the trial judge set aside this verdict because it was against the weight of the evidence. Let us take the language of the circuit judge. He says:

"That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf...