
    MITCHELL v. KANSAS CITY PUBLIC SERVICE CO. (DeWITT, Third Party Defendant).
    No. 1807.
    District Court, W. D. Missouri, W. D.
    Jan. 4, 1945.
    Fred Bellemere and Roy W. Rucker, both of Kansas City, Mo., for plaintiff.
    Charles L. Carr, Hale Houts, A. C. Trippe, and Hogsett, Trippe, Depping & Houts, all of Kansas City, Mo., for defendant.
    Fred Bellemere and Roy W. Rucker, both of Kansas City, Mo., for third party defendant.
   REEVES, District Judge.

It is unnecessary to discuss the motion for judgment in favor of the third party plaintiff against the third party defendant. Counsel have advised that an adjustment has been made between these litigants. However, an inspection of the pleadings reveals that the plaintiff made no claim against third party defendant, nor did third party plaintiff make such claim. It was suggested by the third party plaintiff that the third party defendant might be liable to the plaintiff. Since the verdict of the jury was for the defendant, under the pleadings the third party plaintiff would have no claim against the third party defendant.

The third party defendant asks for nothing, and it would follow that the third party complaint should be dismissed. It will be so ordered.

In his motion for a new trial plaintiff asserts three grounds, namely, that the verdict of the jury was against the evidence and the weight of the evidence; that the verdict of the jury was contrary to physical facts; and, finally, that the court committed error in charging the jury that the plaintiff would not be entitled to recover if the testimony in its judgment was evenly balanced on the issue of liability.

The verdict of the jury was not against the weight of the evidence, nor did it violate known physical facts. The charge of the court was a proper one under the authorities. It would follow that the motion for a new trial should be overruled. It will be so ordered.  