117 Mo. App. 298 | Mo. Ct. App. | 1906
The plaintiff Morris brought this suit as the husband of Sarah H. Morris to recover damages sustained by him on account of injury to his said wife, the result of a fall into an unguarded excavation in a public street of the city. The wife had previously recovered judgment for her injury against these defendants in the circuit court of Jackson county, which had been paid. The plaintiff pleaded said judgment as res adjudicate in respect to the injury to his wife, the negligence of defendants, and the absence of contributory negligence on her part. The trial was conducted upon the theory that the judgment in the said suit of the wife established the defendant’s liability, according to the holding in Brown v. Railway, 96 Mo. App. 164. And “every question of fact that could arise in the present case was determined in that except as to the kind and quantum of damages to which the plaintiff was entitled.”
Defendants contend that, in addition to the injuries alleged in the suit of the wife were included in the petition herein injuries to her side and back. That could make no difference as to defendants’ liability, and plaintiff was required to prove the allegation and the matter was contested by evidence introduced upon the part of defendants. Its only effect was upon the question of damages.
The verdict and judgment were for the defendants. Plaintiff filed a motion for new trial, which was sustained on the ground that, “under the evidence and law, as declared by the court, the plaintiff was entitled to a verdict for some amount,” being a ground assigned for a new- trial. Instruction numbered 1, given for plaintiff, tells the jury that the judgment of the former suit of the wife establishes the negligence of defendants and the absence of contributory negligence on her part in relation to the injuries she received; and that if the jury find that piaintiff is, and was, at the time of said injury, the husband of said Sarah H. Morris, and that
There was substantial evidence that the plaintiff had been deprived by reason of his wife’s injuries so received, of her services at his home, and that he had incurred expense for medical aid in caring for her. In fact, the preponderance of the evidence, at least, was in •his favor on that issue. The defendants’ grievance is that the plaintiff was irrevocably bound by the verdict of the jury as they were the sole judges of the credibility and weight of the testimony, citing Lovell v. Davis, 52 Mo. App. 342, where it is held, “it was not error to tell the jury they were not bound to believe the declarations of witnesses, because such declarations were uncontradicted : they might believe or disbelieve them as it might appear from all the facts to be true or untrue.” In Seehorn v. Bank, 148 Mo. 256, it is held that, “Where allegations in the petition are denied by the answer, and evidence is introduced by the plaintiff to sustain the issue upon his part, the defendant is entitled to have a jury, or the court sitting as a jury, to pass upon the issues, although defendant offers no evidence at all.” The rule thus announced is not without exceptions. In May v. Crawford, 150 Mo. 504, it is held that the court, may on the uncontradicted evidence direct a verdict on the issue. The decisions of this State are not uniform on the question, but the case last cited and later decisions by this court appear to be founded on sound basis of reason. But whether or not a party litigant has the right to the verdict of the jury in any given case, whether or not there was any conflict in the case, the trial judge has a supervisory power over such verdicts and he may, in the exercise of a sound discretion, affirm or set them aside in the interest of justice.
And while the appellate courts will not set aside a verdict, even where it is against the great preponderance
In this case, the great preponderance of the evidence was with the plaintiff. In fact, he was, as a matter of law, entitled to an instruction directing a verdict in his favor for some amount. The court was right in setting aside the verdict, and its action is affirmed.