Terpenning v. Nicholls

REYNOLDS, P. J. (after stating tbe facts). — ■ It is tbe settled law of our State, as announced by the Supreme Court in many decisions, that “a motion for a new trial is to a great degree addressed to tbe judicial discretion of tbe trial judge, and an appellate court is reluctant to interfere with tbe exercise of that discretion.” Onr Supreme-Court has said in several cases that this is particularly so when tbe case turns on tbe weight of evidence. [Stetzler v. Met. Street Ry. Co., 210 Mo. 704, l. c. 711; Warner v. St. L. & M. R. Ry. Co., 178 Mo. 125, l. c. 129.] In this latter case, it is said that “in cases of this character this court has always refused to interfere with tbe discretion of tbe trial court in granting one new trial to a [510] party litigant, unless tbe case was sucb that under no circumstances whatever could a verdict in favor of the plaintiff be allowed to stand,” citing Hoepper v. Southern Hotel Co., 142 Mo. 378, l. c. 387; Haven v. Railroad, 155 Mo. 216, l. c. 229, and cases there cited. See also Millar v. Madison Car Company, 130 Mo. 517, l. c. 529, and cases there cited. An action of the character of the one before the court is so peculiarly an action for determination by a jury, resting as it almost invariably does, on circumstances by which it is claimed fraud and deceit have been proven, more than on direct evidence, that a trial court will always feel very great reluctance in depriving itself of the benefit of the view of the jury on the facts in evidence. We have read all of the testimony in the case, as presented to us in the abstract, carefully compiled by the learned counsel for the appellants, and are forced to the conclusion that the testimony is of such a character that the plaintiff was entitled to take the opinion of the jury on the effect of the testimony submitted. As the action of the trial judge in granting a new trial will have to be affirmed and that trial had, we think it would be unfair and prejudicial to both parties for us to undertake to set out the rulings of the court on the admission or exclusion of particular testimony, or to call attention to the parts of the evidence that we think entitled the plaintiff to an answer thereon by the jury. There is substantial evidence in the case, in our opinion, to warrant the court in submitting the question of fraud and deceit alleged to have been practiced on the plaintiff at the inception of the transaction. There is evidence in the case as to the time of the discovery of the alleged deceit and false statement charged, which, if true, removes the bar of the statute. The time of discovery is a fact, on which there is evidence — on which the plaintiff was entitled to take the opinion of the jury. This, as well as the [511] question of deceit, are material points in the case which the learned trial judge undoubtedly had in mind when he awarded a neAv trial. Looking at the evidence and, to repeat, considering the issues raised by the pleadings, plaintiff was entitled to have it passed upon by the jury, under proper instructions from the court. The judgment of the circuit court in setting aside the nonsuit and in sustaining the motion for a new trial is affirmed, and the case is remanded with directions to that court to proceed with the cause in due course of law. All concur.