Concurring Opinion
SEILER, Judge.I concur in the result reached in the opinion written by Judge Donnelly, but would rest the decision on a somewhat different basis. I do not believe that we review a libel case where a new trial has been granted on the ground the verdict is against the weight of the evidence any differently than we do any other damage suit, nor do I believe our review turns on the fact the trial court cannot direct a verdict for a plaintiff in a libel suit. It seems to me that the language in the Castorina opinion (in Castorina the plaintiff had been granted a new trial), relied upon by plaintiff and set out in Judge Donnelly’s opinion, must be taken as referring to what the appellate court does when considering the situation where plaintiff has been granted a new trial on the weight of the evidence, which is not this case. The Castorina language relied upon by plaintiff does not apply where defendant gets the new trial on the weight of the evidence (and I do not think this is limited to libel cases). This is the flaw in plaintiff’s argument that since there was no substantial evidence to have .supported a verdict for defendants, the trial court erred in granting defendants a new trial on the ground the verdict was against the weight of the evidence.
When a defendant is granted a new trial on such ground in a case where plaintiff’s claim is denied by the answer and there is oral evidence on the part of plaintiff on which the jury must pass as to credibility and where the plaintiff must face the risk of non-persuasion of the jury (as here where plaintiff put on six members of the city council, the mayor, the city clerk, four witnesses as to good reputation, the deposition of the lawyer advising plaintiff at the time, and plaintiff himself and wife), the test quoted from Castorina does not fit, because a verdict for a defendant can stand even without any substantial evidence in favor of the defendant, Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; Holtzman v. Holtzman (Mo.App.) 278 S.W.2d 1; Rodgers v. Seidlitz Paint and Varnish Co. (Mo.Sup.) 404 S.W.2d 191; Fitch v. Star-Times Pub. Co. (Mo.Sup.) 263 S.W.2d 32.
We have no way of knowing why the trial court concluded the verdict for plaintiff was against the weight of the evidence. It may have been for some matter known to the court in witnessing and presiding over the trial and which does not and cannot appear in the record. His action in awarding defendants one new trial on the ground stated does not have to be supported by substantial evidence in the record on which the jury could have returned a verdict for the defendants. In effect, under the Missouri practice, when it comes to granting a new trial for the defendant on such ground, the trial court is not limited to a situation where, upon looking back, it can be said there was substantial evidence in the record to have supported a verdict for defendant originally, any more than a jury, under Cluck v. Abe, supra, is limited to returning a verdict for the defendant only where there is substantial evidence in favor of the defendant.