Baughman v. National, Waterworks Co.

Smith, P. J. Plaintiff sued defendant and stated her complaints in a petition containing four counts. The result of the trial of the issues was the following verdict: “We, the jury, find for the defendant on the first count in the sum of $125,- without interest; and we find for the plaintiff on the second count in the sum of $300, and on the third count the sum of $150, and [580] on the fourth count the sum of $500, and an additional amount of $250, and that the defendant pay all costs.”' Afterwards, within four days, the defendant filed a motion for new trial on the second, third and fourth counts. Plaintiff did not file a motion for new trial' as-to the first count. After-wards, and during the term, the motion for new trial as made by defendant -was sustained and the court at the same time (of its own motion) set aside the verdict as to the first count over-defendant’s. objection, the defendant offering to enter a remittitur for the $125, allowed it by the jury. The defendant appealed from this order setting aside the verdict as to the first count. It is conceded that the jury were not authorized by the issues made by the pleadings to award damages to the defendant on the first count of the plaintiff’s petition and in that regard the verdict was manifestly erroneous. The trial court of its own motion under its. common law power was authorized at any time during the term to set aside the verdict for that or any other-good reason. But when this ground of objection was suggested by the court to it the defendant offered to remit the damages awarded to it by the jury and thus to obviate the objection of the court, but notwithstanding the defendant’s offer the court set aside the verdict. After the offer of the defendant to remit, the verdict for it was no longer subject to the objection which the court had suggested. It was then no more than simply a verdict for defendant on the first count of the petition. It negatived the facts alleged in that count. In revising the discretion of a trial court in ordering a new trial we are authorized first, to examine the ground set forth in the order of the court if it be for a ground or grounds other than those specified in the motion of the party assailing the verdict, and if the order can not be upheld on that ground or grounds then we are authorized to [581] go further and examine the grounds of the motion, and if we find nothing there to justify the order we may go still further and examine the record proper and if nothing there appears to warrant the order we must reverse it. Lovell v. Davis, 52 Mo. App. 342. In this case, as has been stated, the plaintiff filed no motion to set aside the verdict so we have not the objections of such motion to examine. And since the objection of the court recited in the order was met by the offer to remit, it only remains for us to look int-o the other parts of the record proper for a ground to uphold the order, but it is needless to say that nothing of the kind is there perceived or even suggested by the plaintiff. But the plaintiff contends that even if the action of the court was erroneous it was not prejudicial to the defendant. In Bindbeutal v. Railroad, 43 Mo. App. 463, it was ruled by us that when error is shown in the record the law supplies and attaches the consequence of prejudice and the judgment will be necessarily reversed, unless the party claiming the benefit of the judgment shows from the record that which clearly rebuts the presumption of prejudice; and that the statute does not encroach upon this presumption, but rather supplements the rule with a practical definition, that the error must materially affect the merits. In this case the defendant had the verdict of the jury in its favor on the constitutive facts alleged in the first count of the plaintiff’s petition and it can not be .said that the error of the court in ordering this set aside was not prejudicial to the defendant. The action of the court was not only error, but it was such prejudicial error as calls for interference by us therewith. Accordingly the order of the court setting aside the verdict will be reversed and cause remanded with directions to that court to permit the defendant to enter [582] the remittitur of the amount found by the jury in its favor and then to enter judgment on the verdict for defendant on .the first count of the petition. All concur.