Waers v. Weisberg

• Decision Date: 29 April 1912
• Citation: 146 S.W. 818
• Parties: WAERS et al. v. WEISBERG.
• Court: Missouri Court of Appeals

146 S.W. 818

WAERS et al. v. WEISBERG.

Kansas City Court of Appeals. Missouri.

April 29, 1912.

Rehearing Denied May 13, 1912.

1. APPEAL AND ERROR (§ 856) — REVIEW — ORDER GRANTING NEW TRIAL.

Though the grounds specified in the order granting a new trial may not justify the order, the appellate court will affirm it, if other grounds appearing in the record do justify it.

2. APPEAL AND ERROR (§ 856)—BURDEN OF PROOF.

If the grounds specified in the order granting a new trial do not justify the order, the burden is on respondent on appeal to show other grounds in the record which do justify it, in order to sustain it.

3. APPEAL AND ERROR (§ 979)—DISCRETION OF TRIAL COURT.

Under the Code, the granting of a new trial on the ground that the verdict was against the weight of the evidence is peculiarly within the trial court's discretion; and its action is not reviewable, in the absence of abuse thereof, as the appellate court will not weigh the evidence.

4. APPEAL AND ERROR (§ 854)—REASONS FOR DECISION.

Grounds assigned for granting a new trial, that the verdict was against the weight of the evidence, and that the court erred in not directing a verdict for defendant, are conflicting, so that the ground that the verdict is against the evidence must be disregarded on appeal, leaving as the only ground on which the new trial can be considered as having been granted that there was no evidence whatever to sustain a verdict for plaintiff.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by W. E. Waers and another, partners as Waers & Moffett, against I. Weisberg, doing business as Weisberg & Co. From an order setting aside a verdict for plaintiffs and granting a new trial, plaintiffs appeal. Reversed and remanded, with directions to set aside order granting new trial and enter judgment on verdict.

Jerry M. Jeffries and E. O. Doyle, both of Moberly, for appellants. M. J. Lilly and Willard P. Cave, both of Moberly, for respondent.

JOHNSON, J.

Action to recover damages for breach of a contract of sale of personal property. The first trial resulted in a verdict for plaintiffs, which the court set aside on defendant's motion for a new trial on the ground of errors in the instructions to the jury. Plaintiffs appealed, and we affirmed the judgment granting a new trial. 152 Mo. App. 276, 133 S. W. 617.

A second trial ended in a verdict for plaintiffs, and again the court granted a new trial. In substance, the reasons stated in the order are, first, that the verdict is against the weight of the evidence; and, second, that the court erred in not peremptorily directing the jury to return a verdict for defendant. Plaintiffs appealed, and contend that the two reasons assigned for the order are so inconsistent they cannot stand together; and that we must regard the order granting the new trial as containing but the single ground that the verdict is unsupported by any evidence, and entirely ignore the other ground.

The rule is well settled that, though the grounds specified in the order of the trial court sustaining the motion for a new trial may not justify the order, still, if other grounds appearing in the record and presented by the respondent do justify the order, the appellate court will sustain the action of the trial court in granting the new trial. "But in such case the burden is on the respondent to discover and point out to the appellate court such other error." Crawford v. Stockyards Co., 215 Mo., loc. cit. 402, 114 S. W. 1059; Miller v. Madison Car Co., 130 Mo. 517, 31 S. W. 574. In the present case, respondent has not pointed out any other error than those assigned in the order; and, consequently, our inquiry is confined to the question of whether or not the new trial properly could be allowed on the grounds specified.

Should we find that one of the proper grounds specified in the order is that the verdict is against the weight of the evidence, we would not hesitate in affirming the judgment. Under our Code, the granting of a new trial on this ground is a matter peculiarly within the province of the trial court; "and in a case fairly falling within that province the discretion of the trial court would not be reviewed. That is to say, we will not weigh the evidence pro and con...