Pemberton v. Buescher and Peek

165 S.W.2d 707, 237 Mo. App. 251, 1942 Mo. App. LEXIS 116

• Court: Missouri Court of Appeals
• Decided: November 2, 1942
• Status: Published

Opinions

BLAND, J.

This is an action for damages- for personal injuries growing out of a collision between two automobiles on a public highway in Macon county. There was a verdict and judgment in favor of plaintiff in the sum of $1500. The court sustained defendants’ motions for a new trial, and plaintiff has appealed.

There were seven separate grounds of error assigned in the motions for a new trial. However, the court failed to give any reason for sustaining the motions and plaintiff, thereafter, called the court’s attention to its failure in this respect by filing a motion requesting the court to specify the particular grounds for sustaining the motions. This motion the court overruled.

It was the duty of the court to state the ground or grounds upon which it sustained the motions for a new trial (Section 1169, R. S. Mo. 1939; Stoner v. Royar, 200 Mo. 444), and, in view of its failure to do so, the burden is upon defendants to show prejudicial error, which would warrant a reversal on appeal if judgment had been entered on the verdict. [Dove et al. v. Atchison, T. & S. F. Ry. Co., 163 S. W. (2d) 548.]

Defendants have failed to sustain this burden. In fact, they have filed no brief in this court.

The judgment is reversed and the cause remanded with directions to the trial eourt to reinstate the verdict and to enter judgment, as of the date of the verdict, in favor of the plaintiff thereon.

Cave, J., concurs; Shain, P. J., dissents in a separate opinion.