Opinion
April 23, 1936.
1. NEW TRIALS: Amendments. Where judgment was for defendant and the court granted a new trial on plaintiff's motion, the plaintiff on appeal from the order granting a new trial cannot complain that it was surprised by an amendment to defendant's answer and unable to meet a new defense where the record shows that plaintiff did not complain at the time on the ground that the real defense was not disclosed by the evidence, and did not ask that the submission be set aside and for time to meet the new defense.
2. NEW TRIALS: Perjury. Under Section 1002, Revised Statutes 1929, the trial court may grant a new trial if satisfied that perjury or mistake has been committed by a witness, and the court may discover perjury either from what occurred at the trial or from newly discovered evidence brought to its atention in the motion for a new trial.
Where it does not appear in the record on appeal how the trial court concluded that a witness committed perjury but it may be inferred that such conclusion was based on affidavits accompanying plaintiff's motion for a new trial, it is sufficient to support the court's conclusion.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. McElhinney, Judge.
AFFIRMED.
Nagel, Kirby, Orrick Shepley, Ethan A.H. Shepley and Dwight D. Ingamells for appellant.
(1) The plaintiff should not have been granted a new trial on the ground of surprise, as the plaintiff did not act immediately to claim surprise, move for a continuance, or ask for more time to meet the alleged concealed defense at the time this defense first became apparent to plaintiff, but took its chance on a favorable verdict. Bragg v. Moberly, 17 Mo. App. 227; Thiele v. Railroad Co., 140 Mo. 338; Miller v. Rankin, 155 Mo. App. 394; State v. Hensen, 290 Mo. 247; State v. Whitsett, 232 Mo. 526; State v. Wilson, 223 Mo. 187; Formento v. Hines, 225 S.W. 105. (2) The court should not have granted plaintiff a new trial on the ground that plaintiff was surprised by the amendment of the answer of defendant R.F. Bixby, because plaintiff did not object or save an exception to such amendment or move the court to continue the cause on the ground that the plaintiff was surprised by the amendment, but proceeded to trial without making its surprise known to the court. James v. Mut. Reserve Fund Life Ins. Co., 148 Mo. 18; Page v. Payne, 293 Mo. 619; Christensen v. Prewett, 11 S.W.2d 1112; Sang v. St. Louis, 262 Mo. 467. (3) The court should not have arbitrarily and without foundation granted the plaintiff a new trial on the ground that the testimony of the witness Ebeling was false, as the plaintiff failed to use due diligence to produce at the trial the evidence which the plaintiff claims would impeach the credit and character of the witness Ebeling and the truth of his testimony. State v. Whitsett, 232 Mo. 525; Byrd v. Vandenburgh, 168 Mo. App. 120; Shotwell v. McElhinney, 101 Mo. 683; Stamping Works v. Wicks, 144 Mo. App. 260; Liester v. Wells, 300 Mo. 275; Folding Bed Co. v. Kansas City, 148 Mo. 484; Devoy v. St. Louis Transit Co., 192 Mo. 217; Markley v. Kansas City, 221 Mo. App. 845.
Jones, Hocker, Gladney Jones and Frank Y. Gladney for respondent.
(1) There is a difference between (a) granting a new trial and (b) refusing one. Trial courts are encouraged to sustain such motion when convinced that there has been a miscarriage of justice. And this court will not reverse the order of the trial court unless that court has acted capriciously or arbitrarily. Helm v. Bassett (1845), 9 Mo. 54; Schmidt v. Railroad Co., 149 Mo. 282; Kuenzel v. Stevens, 155 Mo. 285; McCarty v. St. Louis Transfer Co., 192 Mo. 401; Benjamin v. Railroad Co., 245 Mo. 619; Lorenzen v. Railroad Co., 249 Mo. 187; Longdon v. Kelly, 51 Mo. App. 576. (2) The circuit court properly sustained the motion because of error in permitting the appellant Bixby to amend his answer, so as to substantially change the defense. R.S. 1929, sec. 819; Harrison's Admr. v. Hastings, 28 Mo. 346; Clark v. St. Louis Transfer Co., 127 Mo. 269; Carter v. Dilley, 167 Mo. 572; State ex rel. v. Reynolds, 277 Mo. 21. (3) The trial court had authority to grant a new trial because of error in amending the answer, whether excepted to or not. Beer v. Martel, 332 Mo. 61; Schuette v. Transit Co., 108 Mo. App. 25; Richter v. Railroad Co., 145 Mo. App. 16; Owens v. Ry. Co., 201 S.W. 550; Bradley v. Becker, 296 Mo. 560; Noren v. Am. School, 223 Mo. App. 284; Henry v. Mo. Ins. Co., 68 S.W.2d 856; McCombs v. Bowen, 73 S.W.2d 301; Boyd v. Pennewell, 78 S.W.2d 458. (4) The circuit court acted under the imperative duty of the statute in granting a new trial on the ground that the witness Ebeling had committed perjury. R.S. 1929, sec. 1002; Dean v. Railroad Co., 229 Mo. 452; Rickroad v. Martin, 43 Mo. App. 597; Ridge v. Johnson, 129 Mo. App. 541; Scott v. Ry. Co., 168 Mo. App. 527; Asadorian v. Sayman, 286 Mo. 507; Neal v. Rys. Co., 229 S.W. 218; Gavin v. Forrest, 72 S.W.2d 177.
Action on a promissory note and interest thereon. Plaintiff dismissed as to defendant J.C. Smith. A trial to a jury resulted in a verdict in favor of plaintiff for $25,429.34 as to the corporate defendant Bixby Smith, Inc., and against plaintiff as to defendant, R.F. Bixby. Plaintiff's motion for new trial as to defendant R.F. Bixby was sustained and he appealed from the order granting plaintiff a new trial.
Defendants, J.C. Smith and R.F. Bixby, were stockholders in the corporate defendant, Bixby Smith, Inc., and endorsed the note sued on by writing their names on the back thereof. No answer was filed for any defendant except R.F. Bixby, and he, in his answer, admitted endorsing the note.
Hereinafter, when we use the term defendant alone, we have reference to defendant, R.F. Bixby. Defendant's evidence tended to show that he endorsed the note several months after its execution by the corporate defendant and after its delivery to plaintiff, while plaintiff's evidence tended to show that defendant endorsed the note at the time of its execution by the corporate defendant and before delivery to plaintiff. The cause was submitted by each party, that is, by plaintiff and R.F. Bixby, under their respective theories.
Plaintiff alleged that defendant endorsed the note "before delivery" and in his original answer defendant admitted that he endorsed the note "as stated therein," that is, before delivery. At the trial defendant amended his answer by striking out the words "as stated therein," which left only an admission of having endorsed the note. Defendant's separate answer, after the amendment, was an admission that he endorsed the note, a general denial of other allegations and "that said note was endorsed by said defendant wholly without consideration, and the same is not, and never was, binding upon said defendant, in the hands of plaintiff." It will be observed that defendant did not specifically plead the defense submitted to the jury. Plaintiff brings up the original answer of defendant in an additional abstract, wherein it appears that the amendment to the answer was made over the objection and exception of plaintiff. Defendant challenges the correctness of the additional abstract as to plaintiff's objection and exception to the amendment. In this situation, we called for the bill of exceptions which was sent, and it fails to show anything about the amendment, except in the motion for a new trial, all of which appears in the abstract.
The trial court granted a new trial on the second, third and tenth grounds set up in the motion. These, in effect, are: (2) that the verdict was the direct result of surprising plaintiff and depriving it of any opportunity to meet the concealed defense; (3) that the court erred in permitting the amendment to the separate answer of defendant; and (10) that one of defendant's witnesses committed perjury.
Plaintiff contends that by the amendment of his answer defendant was enabled to get to the jury a defense of which plaintiff had no knowledge or intimation until disclosed by the evidence of defendant and his witness, but, as shown, plaintiff made no objection to the amendment at the time, and did not complain at the time on the ground of surprise or otherwise when the real defense was disclosed by the evidence, and did not ask that the submission be set aside and for time to meet the defense disclosed, hence, plaintiff is in no position to complain about the amendment or that it was taken by surprise. [Christensen v. Prewett (Mo. App.), 11 S.W.2d 1112, and cases there cited.]
Should the trial court's action granting the new trial on the ground that defendant's witness committed perjury be sustained? Section 1002, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1002, p. 1264), provides, among other things, that a new trial shall be granted if "the court is satisfied that perjury or mistake has been committed by a witness," and the court may "discover perjury either from what occurred at the trial or from newly discovered evidence brought to its attention in the motion" for a new trial. [Neal v. Kansas City Rys. Co. (Mo.), 229 S.W. 215.] It is the duty of a trial court to grant a new trial when satisfied that perjury or mistake has been committed by a witness, and that such resulted in an improper verdict. [Scott v. St. Joseph Ry., Light, Heat Power Co., 168 Mo. App. 527, 153 S.W. 1058.]
It does not appear just how the trial court arrived at the conclusion that defendant's witness committed perjury, but the inference is that such conclusion was based on the affidavits and exhibits accompanying plaintiff's motion for a new trial. We do not deem it necessary to go into these. It is sufficient, we think, to say that the affidavits and exhibits support the court's conclusion, so far as concerns the granting of a new trial.
The order granting a new trial to plaintiff should be affirmed and it is so ordered. Ferguson and Hyde, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.