Wilson v. Scott

Ellisoh, J. — This cause is based on a petition for personal injuries received by plaintiff while in the employ of defendants in operating a derrick used at the time of the injury in raising large stones. There was a trial resulting in a verdict for defendants, which verdict was afterwards, on the plaintiff ’s motion, set aside, a new trial granted and the cause continued. No exception was taken by defendants. The case afterwards appeared on the docket for the first day of the term, and, being called for trial, the defendants failed to appear either in person or by attorney. A jury was impaneled, and a hearing of evidence for plaintiff as to his damages. The result was a verdict in his favor for $1,250. Defendants filed a motion for new trial, setting up, among other reasons, that defendants’ attorney was unavoidably absent, and that he relied upon an alleged custom of the circuit courts of Southwest Missouri of not trying cases on the first day of the term, notwithstanding cases were set for such day. As the testimony taken on the motion did not show that this was the invariable custom, we need not say whether the excuse wóuld have been good if it had been. The other reason alleged, viz., that defendants’ attorney could not be present amounts to nothing. The reason was supported by the statement that he was engaged in other important matters of business. The motion for new trial set up as additional reason for setting aside the verdict, that the court admitted improper evidence for the plaintiff and gave improper instruction at his instance. But as defendants were served with process, had appeared in court and answered to the actions, and were, without legal reason, absent from the trial, we are of the opinion that, since there is evidence upon which to base the verdict, the proceeding at the trial should be judged as332 though they were present offering no objection and taking no exception to the action of the court. "We, therefore, refuse ‘to notice the objections to testimony, or to the instructions given. A motion was made before the first trial to strike out the plaintiff’s amended petition. This motion was not incorporated in the bill of exceptions, and, not being a part of the record proper, we need not notice this point; Hubbard v. Quisenberry, 32 Mo. App. 459. Besides defendants waived any objection in this respect by answering the amended petition. Scovill v. Glasner, 79 Mo. 449. The petition stated a good cause of action, and defendants’ motion in arrest was properly overruled. We see no sufficient ground for disturbing the judgment, and order its affirmance. All concur.