Connally v. Pehle

REYBURN, J. (after stating the facts as above). —1. After some wavering in the decisions thereon, the rule is now well settled, that where a motion for a new trial is sustained upon a ground specified, the burden devolves on respondent in the appellate court to show [418] that the motion was properly sustained upon any ground other than that designated in the order of the trial court awarding the new trial. In the language of a prior decision adopted in Emmons v. Quade, 75 S. W. l. c. 104; “If the trial court assumes to set aside a verdict for any reason not contained in the motion, it is still its duty to specify that reason upon the record; but whatever the grounds for its order, it was clearly the intention of the statute to give the right of appeal from its decision thereon, and if, in the opinion of the appellate court, its reasons are insufficient, the verdict must stand and the cost of another trial avoided, in the absence of affirmative showing by the party in whose favor the new trial was granted that it was properly set aside.on other grounds,” and it follows that an order for a new trial based on one ground of the motion therefor, presumes the overruling of the other grounds. Hughes v. Ittner, 133 Mo. 679; Thiele v. Railway, 140 Mo. 319; Bradley v. Reppell, 133 Mo. 545. The burden being imposed on respondent to show some other ground enumerated in his motion for a new trial upon which the circuit court should have awarded him a new trial, in absence of such showing we are confined to consideration of the action of the lower court based solely on the cause mentioned in its order setting aside the verdict. 2. Section 800, R. S. 1899, sets forth the statutory causes for which a verdict may be set aside and new trial granted, reciting among others where there has been a mistake or surprise of a party, his agent or attorney. This statute was the subject of interpretation in Fretwell v. Laffoon, 77 Mo. 26, being then section 370, R. S. 1879, but which has remained on the statute book, undisturbed without amendment to this time, and appellant and respondent have united in appealing to above case. The facts therein are stated at length, and present questions of marked [419] similarity and almost identical with those involved in this record. As the true definition of the term “surprise, ’ ’ the eminent judge, expressing the opinion of the court, adopts the dictum of Justice Story: “By this term is intended not merely inevitable casualty, or the act of Providence, or what is termed vis major, or irresistible force; but such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party.” The language of that case, while characteristically forcible and vigorous, is as applicable to the facts presented by the case under consideration. “And in regard to mistake of a party as the ground for a new trial, it- seems from the authorities, as well as from sound reason, that while negligence can not be claimed as surprise, neither can, incredible forgetfulness, unpardonable heedlessness, or egregious blunder be classed as mistake, honest mistake which properly invokes judicial interposition.” Bearing in mind that the case had been originally heard before the magistrate in whose court it had been brought, and that the trial in the circuit court was the second trial of the cause, and occurring long after the first hearing, the setting aside of the verdict- of the jury upon the ground assigned was improper and should not be upheld. Yielding full deserved credit to the affidavits, at best the defendant was convicted of carelessness and laches in not recalling the facts set forth in the affidavits in the lengthy interval elapsing between the two trials and taking advantage of them at the trial in the circuit court: any circumstances tending to evince surprise, stripped and analyzed, exhibit a state of facts establishing negligence, forgetfulness or carelessness to an extreme degree on part of defendant; all the proof referred to in the affidavits was within defendant’s reach and could have been produced by the exercise of any diligence no facts tending to show which are sub [420] mitted; and a new trial should never be awarded if the surprise was owing to the least want of diligence. Tittman v. Thornton, 107 Mo. 500; 3 Graham & Waterman, New Trials, 398. The surprise charged occurred during the progress of the trial, and no application was addressed to the court for a reasonable delay to enable defendant to produce additional evidence, if desired, and after verdict of the jury such appeal is made too late. In my opinion the new trial was erroneously granted, the order awarding it should be set aside and the cause remanded with directions to enter judgment for plaintiff on the verdict. As the majority of the court, however, are of the opinion that in passing upon a motion for a new trial, the trial judge being in much better position to determine than an appellate court, much must be conceded to the discretion of the trial court in its ruling in regard to the matter, and unless it clearly appears that such discretion was unwisely exercised, which is not apparent in this case, the appellate court should not interfere, the judgment is according affirmed. Bland, P. J., and Goode, J., concur. PER CURIAM. — The majority of the court desire to add to what is said in the minority opinion, that in their judgment, the newly discovered evidence almost demonstrates that the respondent has paid the account he is sued on. The account is not a large one and in his memory the payment of it became confused with another payment he had made to Frentrop, Shelton’s clerk or manager. When he heard Frentrop testify concerning the two payments and that the account in suit had been paid to Shelton personally in his lifetime, the respondent was at first surprised, but gradually the ■facts came to him; especially when it was found the draft on the bank verified Frentrop’s statement. It is said the respondent was remiss in not recalling the truth sooner; but a man can not always control the operation [421] of his memory. Persons often receive an inkling about some forgotten matter that at first seems strange to them, but sets to work a train of associations which ultimately bring into, recollection all the details. So it was with Pehle. "We think he was not negligent; at least does not so certainly appear to have been that we ought to disturb the order for a new trial, which manifestly makes for justice.