Benson v. Qualls , 1975 Mo. App. LEXIS 1780 ( 1975 )

CLEMENS, Presiding Judge.

Plaintiff sued the two defendant police officers for damages allegedly arising from using unreasonable force when they arrested him.

The jury returned a verdict for defendants. The trial court initially entered judgment for defendants, but pursuant to plaintiff’s after-trial motion, set aside the judgment and granted plaintiff a new trial. This, on several grounds, including “because the verdict is against the weight of the evidence.” Defendants appeal.

In their brief defendants do not challenge and on oral argument here conceded the submissibility of plaintiff’s case. The trial court therefore had the discretionary power, without appellate interference, to grant one new trial on the ground the verdict was against the weight of the evidence. Rule 78.02; Clark v. Ford, 498 S.W.2d 803[1] (Mo.1973); Dorrell v. Moore, 504 S.W.2d 174[3] (Mo.App.1973).

Defendants raise multiple points in their brief attacking the trial court’s findings of defects in defendant’s verdict-directing instruction. Since a retrial may produce different evidence and require a different defense instruction we will not enter this maze to render an advisory opinion.

We affirm the trial court’s order granting plaintiff a new trial.

KELLY, Jr. and RENDLEN, JJ., concur.