*1 Dеpartment April 6, 1950.] [Nos. 31210. Two. Coppo al., v. A. R. Van Respondents, J. et Shields
Wieringen, Appellant. Myers al., v. A. R. Van Respondents, et Wieringen, Bill
Appellant.1 Puis, for appellant. W. E. Du Durham, for
Durham, & respondents. Guimont the trial is whether J. The questionpresented Hill, in two new trials discretion abused its collision, from an automobile damages resulting actions consoli for trial and. are actions were consolidated on this appeal. dated his wife were 1, 1948, Coppo Shields J. May
On and his Myers Bill automobile and front of their seat light, for a red stopped in the back seat. While wife were 1Reported in 217 P. Coppo by car was hit from behind a car driven Wieringen.
Martin Van Coppo Myers brought Mr. and Mrs. and Mr. and Mrs. against Wieringen damages. actions Van The found *2 plaintiffs plaintiffs, for deeming cases; the both but the damages inadequate, awarded to be moved for new granted, trials. These motions the trial court in each case “оn the that substantial has not been done inadequate.” and that the verdict is provides constitution, Our state I, 21, Art. that “The right by jury of trial shall remain inviolate,” and it is but litigants natural that and their counsel who have secured a jury satisfactory verdict of the is to them should aggrieved consider themselves at the action of the trial judge deprives victory by them of the fruits of their compelling them to take espe- the chances of another trial, cially given no assigned when reason is or when the reason precludes any beyond is one that review a determination jury that there conflicting is a case for the and that there is controlling evidence on a issue. In Jensen v. Shaw Show Case Pac. this said, con- cerning §I,Art. 21: provision pregnant meaning. “This is with The courts right upon province no jury upon
have
to trench
of the
questions
only
of fact. It where there is no evidence,
either direct or circumstantial, which warrants the verdict
jury,
may
proper
of the
that the courts
interfere. In
cases,
jury
province
an
court;
arm of the
its
is to find the
province
facts,
of the court is to declare the law.”
application
pro-
However, in the
of this constitutional
only appellate
right
upon
vision,
courts have no
to “trench
province
jury upon questions
Litigants
of the
of fact.”
attorneys
provision
preg-
and their
find that the
loses its
nancy, meaning,
both,
its
when it comes in conflict with
right
the inherent
of a trial
to
a new trial either
assigning any
only
without
therefor,
reason
with
a state-
ment of the conclusion that “substantial
has not been
necessarily
done” or some reason which we have found
leads
insufficiency
i.e.,
to that
conclusion:
evidence to sus-
contrary
verdict, the
tain the
verdict is
to-the
damages
inadеquate.
evidence, or the
excessive or
are.
following
Another
statement,
familiar
from Dorian v.
Boone,
is found to have no *3 injuries province peculiarly cease “a matter within the to bе judge grants jury to a trial a determine” when new suggested preceding in under the circumstances paragraph. they presenting cases,
The instant do a situation which, record, there is no more than a difference of jury judge proper the trial and the as to the between present appropriate made, to be an occasion for a awards holdings, and, if of our to make clear what the law is review subheadings may why possible, it is it is. The use of what help process of clarification. Granting and
Distinction Between Orders Orders Denying Jury New Cases Trials point by way background, out, first dis- We would grants a where a trial court and tinction between situation jury motion for trial in a case. one where it denies a judgment denied, a trial is a is entered and the When new appeal judgment, from there be numerous raising assignments questions This of error of fact and law. judgmеnts, verdicts, on occasion reverse set aside court does judges back for new trials after trial and send cases
123 grant usually, them; refused to however, because of er- admitting refusing roneous instructions, error to admit questions or other evidence, errors of law. When fact are inquiry concerned such situation, of this court is upon jury, by focused the verdict of the reinforced the trial judge’s (or, approval recognition approval, if not his why aside), there is no reason the verdict should be set question jury before us is: Should the verdict of the set aside? granted, appeal
When a new trial has is from the inquiry order trial, and the of this court is upon jury focused, not upon the verdict of the but the act purely of the trial presented, court. When factual issues are question by considered this court has ceased to be whether the verdict should be set aside, and has become whether there has been an abuse of discretion the trial court. And when we have found that there was a case for jury and evidence on which the could have reached (which a verdict different from the one rendered is another way saying conflicting that there was evidence controlling issue), consistently we have held that it is im possible say judge that the trial abused his discretion in Rotting Cleman, trial. Wash. Shingle 907; Pac. Welever v. Advance 34 Fidelity Deposit 863; Pac. Sturtevant Co. & Co., Henry 52, 158 Pac. L. R. C, 630; A. 1917 Larsen, Wn. 690, 143 cutting any This, of course, constitutes an curtain, iron off adequate any review whether or not there was reason for to set aside the verdict of the *4 justification dropping a new trial. The for the iron curtain will be discussed under the next subhead.
New Trials Granted Justice Because “Substantial
Has Not Been Done” assigned by judge One of the in in- reasons the the granting justice stant casеs for trials is that “substantial new has not been done.” The enumerate the statutes which granted (Rem. may on which Rev. new trials
124
(Sup.), §
cases;
in
399,
Stat.
Stat., 2181,
civil
Rem. Rev.
cases)
criminal
in
make no mention of such
for
always upheld
trial;
have
new
but we
the
of the trial
judge to
a new trial when he is
convinced
sub
justice
theory
done,
has not
the
stantial
been
on
that it is an
Sylvester
power.
of
exercise
the trial court’s inherent
v.
Lappenbusch,
175;
Olson,
285, 115
v.
Pac.
Brammer
(2d)
(2d)
947;
P.
Bond
625,
Ovens,
176Wash.
20 Wn.
(2d)
514;
Laos,
147P.
Potts
Wn.
P.
holding.
many
the
to cite but a few of
cases so
Actually,
judge says
course,
a trial
of
when
“sub-
stating
done,”
he is
a conclusion
stantial
has
reason
of
for
there must be a
or reasons. One
our
which
phase
attempting
clarify
of the law
in
this
difficulties
consistently
conclu-
have
referred to this
has been that we
granting
separate
trials,
and
as a
distinct reason
sion
classify
neglectеd
the
the
and have
indicate
bases
any
of an
The reason we have
review
conclusion.
barred
except
conclusion,
new trial
based on this
order
conflicting
being
evidence
a case for the
and
to there
as
expressed by
controlling
supreme
issue,
on a
City Lancaster,
the case of McLimans
of Wisconsin
of
297,
“The before whom cause was tried heard the bearing testimony, appearance and of the was much observed testifying, of and and their manner witnesses credibility weight qualified pass upon and of better many testimony be. There are than this court can their lights trifling appearances comparatively shadows, incidents, and preserved record, which are not judge as well the mind well in of affected forming opinions evidence, the char- of very right credibility witnesses, acter ig- cannot be These cоnsiderations the case. and nored determining a reason- exercised whether or refus- discretion or abused his able discretion ours.) (Italics ing a motion for a trial.” Mortg. quoted v. Robertson Wait This statement 926, and Hinz v. Crown Willamette 282, 79 Pac. 37 Wash. Paper Co., 315, 27
125 subject, this forceful on this We find another statement Dewey supreme Iowa the case v. one court of Chicago Co., 31 & Northwestern R. Iowa 373:
“A mention of these considerations which rule (in appellate part) founded, for the is sufficient to courts is ought any applica- rule not show that the not and does ought prius tion to to the courts. Those courts nisi whatever grant power independently trials, to new exercise their ap- and, from the rule controls entire freedom which with they grant pellate ought tribunals, to trials whenever judgment superior comprehensive teaches their and more jury fails sub- them stantial the verdict of to administer that ap- justice parties it to the in the case. Whenever respond pears any failed to have, cause, that the from truly controversy, they have failed real to the merits of the duty, ought aside and a to do to set their and the verdict be granted.” new trial quoted Northern R. in Clark v.
This statement Great 537, 79 Pac. 1108. rationale of recent discussion of the The most extensive holding that we order cases will not review an “ground” justice has not new trial on the that substantial (except to extent heretofore indi been done the limited among, supra. cated) appears Ovens, also, See, Bond v. (2d) Nagle Powell, cases, 105 the more recent 5 Wn. (2d) Department Industries, 22 Yocum v. Labor & 1; P. (2d) (2d) Baird, 25 Wn. 306; 154 P. Wn. Starr P. (2d) supra. 655; Laos, Potts v. Department very recently, Labor & We have Cabe (in 695, Industries, 35 Wn. concurred) again upheld, writer of this proposition authority suрport, cited abundant judges power trials have the on inherent not been done. has again Quoting supra, Ovens, Bond v. made it clear that only review is: reason limited “ appear ‘There that do the record matters which, at all, another, matters for one reason or could not ” appear.’ be made to why, cases, In such it is ours not to reason ours but affirm.
Although apparent judge’s it would seem to be that a trial might conclusion that substantial not been has done entirely be based on the record, matters within hence *6 subject recognize to review, we must that the “sub- words justice has not been have stantial done” become a sort shibboleth to which we have the attached further connota- justice “supe- tion that failed manifest has to the reasons comprehensive judgment” judge rior and more of the trial they intangible part but so that could be not made a the subject are not record hence to review. by
New Trials Granted General Order granted further, We hold that when a trial has by general ground order, i.e., new trial has stated no or grounds appellate ordinarily therefor, the must as- grantéd was, or sume that the order at least have been, power in the exercise of the court’s inherent “to justice newa trial on the that substantial had not supra; Ovens, done.” Bond Schwarz, been Stuckrath v. (2d) just And, seen, Wn. 115P. we have assumption the that carries with it further that substantial justice done has not been because of conditions and circum- part be stances that cannot made a the hence record and subject review. The are result is that when a new granted any is without statement of the or granted it therefor, reason when that or justice done, has not substantial been inquiry “. . . our the limited to determination of question the whether evidence sufficient in the to take say jury, and, unless we can such case that case only jury was, law, as a matter of verdict rendered, must could be order new trial that Henry Larsen, 690, 143 affirmed.” 19Wn. cited. 841, and cases there Prior to the Granted, Amendment, Trials Because
New (or Excessive) Damages Inadequate Awarded Were appellants present The to take the cases out of seek category have on cases in which trials by done, not been has that the basis only the trial pointing failure of that out that inadequacy of the have had in mind was court could the rec- entitled to examine verdicts, this court is and that not the verdicts therefrom whether ord and determine inadequate. are in fact supported
While there is evidence would con- siderably larger say verdicts, we would not hesitate well within the еvidence when it concluded reasonably adequately that the amounts awarded would compensate damages appellants sustained; for the certainly inadequate most the awards were not so as to passion prejudice. indicate will, therefore, We turn to a holdings consideration of our with reference to the inadequacy of new trials because of the jury. awarded damages appearing given
Excessive to have been under *7 passion prejudice the influence of always or been a ground territory for a new trial in Washing- and state of legislature ton. Our setting first territorial enacted a law might granted, forth six on which new trials be being damages, appearing fifth “Excessive to have given passion prejudice.” under the influence of or Laws of regulate practice proceedings 1854, “An Act in chapter actions,” § civil XX, Trial,” “Of New 216. No chаnge wording in was made until 1909.
Inadequate damages only specified not were not as a ground for a trial in but, 1869, act in when the 185£ legislature passed regulate prac- a new enactment “To proceedings chapter tice and actions,” civil XXI, “New provided § Trial,” 279, thereof that: granted “A new trial shall on account of the small- damages injury person ness reputation, an action for an to the or any
nor in other action where shall equal pecuniary injury the actual sustained.” territory
That continued to be the law and state Washington just until 1909,when the section of the statute
128 quoted repealed and the fifth for a new trial was amended to read: inadequate damages appearing “Excessive or to have given passion prejudice.”
been Laws of under the influence of or chapter § 1909, 34, 1; § Stat., [P.P.C. Rem. Rev. 399 §78-3]. change affecting
Therе was no further this wording reason for a new trial until 1933, when the changed to:
“Damages inadequate unmistakably so excessive or passion indicate that the verdict must have been the result of. prejudice.” chapter 1933, 1; Laws of 138, Rem. Rev. (Sup.), § Stat. 399. present Because of the nature of the cases, we will cite only dealing damages; inadequate cases with but the same reasoning applicable rules and are to cases which new granted by judges trials have been because excessive damages. amendment,
Between 1909 and the 1933 new trials were damages. inadequate ten times because of See Heney, Aboltin v. 65, 245; 62 Wash. 113 Pac. Bernard v. Jorgenson Yakima, 472, North 141 1034; 80 Wash. Pac. Crane, 642, 796; 92 Wash. 159 Pac. Nelson v. Coast Pacific Co., 43, 594; Cas. 96 Wash. 164 Pac. Danielson v. Carstens Packing Co., 516, 617; 115 Wash. 197 Pac. Adams v. Ander Co., 356, & Middleton 124 214 835, son Lbr. Wash. Pac. 993; 678, Riser, 270, Wash. Pac. Shead 136 Wash. Daigle 562; Rudebeck, 827; Pac. 282 Pac. Hunting 709; Brandt, McGinnis v. 291 Pac. ton v. Clallam Grain 175Wash. 27 P. only
The instance in which the action of the trial court *8 that the these cases was not affirmed was where we held plaintiffs not made a case for the and that the had Adams v. Anderson & action should have been dismissed. supra. Co., Middleton Lbr. just
An the that, examination of ten cases cited discloses damages that the instances we indicated were while some inadequate grossly inadequate or were so as to indicate passion prejudice, or existence we affirmed an order granting spe- a new trial when the trial had said cifically damages inadequate that the were not so far toas passion prejudice. theory indicate This was done duty it that was the of the trial to that substantial see justice Daigle supra; Rudebeck, also, was done. see, Huntington supra. v. Clallam Grain And we find reason- ing through practically indicating all if thаt, of these cases inadequate, were awarded substantial done; not been if that, had had done, there could be no review of the order except trial to extent heretofore indicated. limited Daigle supra, Thus, in Rudebeck, we said: frequently where the “We held that evidence is con- flicting, entirely it is within the the trial court discretion of grant deny upon to sufficiency the the of the in- justify of the evidence to or that the verdict against evidence, verdict is we have setting upheld likewise trial courts in aside verdicts new trials where the amount awarded [Citing inadequate. cases.] of the trial court duty “It is the of the that substantial trial court see justice is if of dam- done, and he that the amount believes ages inadequate, prevailing party it as awarded to the duty much his it be trial as would excessive.” defendant, motion if were the amount In some all of but not the cases which new trials were granted damages, inadequate because of the reason .which by appellate limits an court, i.e., review that the trial judge may be motivated matters and incidents which part sug- specifically record, cannot be made a gested. quote Packing Co., from We Danielson v. Carstens supra. appellant “If assume, we were to does, that the court the motion new trial because it considered the inadequate, still, would not say interfere we cannot from the because record it vested in it.
abused discretion “Many during things occur case *9 perfectly court, hut which are not to the trial are and cannot manifest ours.) (Italics he made a matter record.” of supra: And from Shead v. Riser, grants reason trial for the “Where the trial court damages inadequate, inter- not that the fere, are this court will an that there was can from the record unlеss we see during things may Many the trial abuse of occur discretion. court, perfectly hut to the trial a a case which are of which are not and cannot he made manifest matter record.” of (Italics ours.) Although imagine it is difficult in which cases everything adequacy pertaining inadequacy to the or damages apparently record, inbe would we decided all damages category that, the cases in this on the if the basis inadequate excessive, or had not were substantial that, done, if done, and had not been not be reason of matters which could it have been part no record, re- made a of hence there could (practically speaking) of the order new view trial. prior question that,
There no can be but to the 1933 that, amendment, it was well established where a new trial ground had been were exces- conflicting inаdequate sive and there evidence on the damages, not interfere issue we would with order for new trial if there was a case which the could have reached a verdict evidence on damages from the different as to the amount of one rendered. Granted, Amendment, In- Prior to the 1933 New Trials sufficiency the Evidence to Verdict Sustain Against Weight Was Evidence Because Verdict construing and de- the 1933amendment
Because the cases changes usually termining in both the refer to the its effect trial, direct should fifth the seventh begin a con- before we to the seventh our attention Stat., 399,, of Rem. Rev. the 1933amendment sideration ground for a new trial. to the fifth reference with changed by The for a seventh 1933amendment from:
“Insufficiency justify or the evidence against decision, law,” or that it is to:
“That there is no evidence from or reasonable inference justify the is that decision, evidence to the or the or it contrary to law.” apparent phrases, “Insufficiency It is the that of the evi- justify against dence to the verdict” “The and verdict is the inevitably thinking evidence,” lead in our to justice the conclusion that substantial has not been done. Sylvester v. Olson, 285, 63 Wash. 115Pac. 175. This is illus- quotations might multiplied many trated three which times over: [trial courts] “These courts should take due cafe not to legitimate province jury,
invade the giving of if, the but after testimony light full to consideration the in the verdict, the trial is still satisfied that the verdict is against weight of evidence, the the that and substantial parties, duty not been has done the between it is his to set the verdict aside.” Clark v. Co., Great Northern R. 37 537, 540, Pac. Wash. 79 1108. power by jury
“The to a in a new trial a cause tried ground insufficiency power of of the evidence is a solely given that in the trial It in in- rests cоurt. it given justice; prevent perpetuation terests of judgments it is into to jur- exaggerated and verdicts that unfounded unaccountably ies are Inde- sometimes wont to return.” pendent Brewing Pac. 787. McCrimmon, 611, 148 610, Co. 85 Wash. [reflecting credibility plaintiff] statements, “Such on deliberately incorporated opinion unmistakably in a written respond that did demonstrate not believe the testimony, testimony being ent’s was no verdict can not be other than disbelieved, and there support evidence
substantial verdict and the unjust, hence and parties.” done has between Scribner Refining 44, 48, 13 v. National holdings We will not here discuss detail the with ref- prior erence to the seventh for new trial to the 1933 analysis holdings amendment, because there is an of those Brant, 191P. it is State Wn. unnecessary repeat substance, it In stated here. there except prior that, amendment, rule was that granting а for an abuse of discretion an order new trial appeal on would not be on where the disturbed that the verdict which the new trial had been against contrary weight of the to the evidence justify the evidence, insufficient to the evidence was verdict; that, where there was case controlling is evidence was substantial conflict on granting new sue, there could be no abuse of discretion grounds. upon any case, see For extreme of those an 397, 169 Horrocks, Funk Pac. 805. Construing 1933 Amendment
Cases now to the 1933 We come a consideration amendment changes Stat., Rev. involved Rem. wording trial, of the fifth and seventh 131). (pages 128, heretofore set out *11 The case to construe the amendment was Brammer first Lappenbusch, P. 30 947. The trial expressed in the view that the 1933 amend- court that case impregnable. ment rendered a This court held that preclude did a trial court from the 1933 amendment not jus- if it that a new trial was satisfied tice not been had done: apparent, think, the trial court of the
“It that jury impreg- verdict of the the statute made the that part any against of the of discretion on nable exercise though setting aside, the verdict even reference to court with substantial.justice not that had satisfied the court were wholly view, that the court denied that, done, because the court was that trial. We believe the motion (Italics ours.) in its conclusion.” error opinion we said: And later principle upon proceeded “All our decisions discretion, of its sound court, in exercise that, if the trial been done has not that substantial is satisfied duty aside.” given the verdict set it is its case, its We remanded the case to therefore court with in- structions to the trial to exercise his discretion in the denying mаtter of a motion for a new trial. foregoing quotations The are the basis of the decision following case, but the court also made the statement, quoted frequently which has been and has been made the subsequent basis several decisions: attempt power “The statute does not to limit the inherent language, of the court. permissive, form The of its noted, it will be says not restrictive. It that, for causes, certain may grant say the court not do so for a new trial. It does not that it shall any other In cause. so far as the amended portion any concerned, statute is it neither conferred power upon already inherently the court which it did not possess, attempt nor did it to restrict the court in the exer- power. legislature cise of its inherent Had never enacted subdivisions and 7 of 399 amended, the court would power grant nevertheless havе had inhérent a new trial upon grounds. either of those argued legislature “It well be that the not, could even attempt if it to, should power control or limit the inherent respect. respectable authority this There is argument for such and contention, but we are not called question is, to decide that here. It at least, the rule in judicially pronounced, state, this that the enumeration of power for new trial does restrict the inherent any of the court to a new trial for other sufficient expressed.” cause, unless restriction is following subsequent The Lap- are cases to Brammer v. penbusch, supra, in which the effect of the 1933 amendment has been considered: Mfg.
In Hatcher v. Globe Union Co., 32, the trial opinion, court, in a memorandum ex- pressed view were excessive but that *12 it “unmistakably” was unable to find that the verdict indi- passion prejudice. catеd that it was result of For that reason, the court trial overruled the motion for new trial. This court said: conception “The trial court’s chapter of the effect of 138, (Rem. p. Sup., seq.), 1933,
Laws of 481 1934 399 et on its power grant to a new trial was erroneous. Brammer v. 134 (2d)
Lappenbusch, P. The 625, 176 Wash. 30 cause is trial to remanded, with directions to the reconsider light in for of that decision.” the motion held, there in line with our decision Brammer We supra, Lappenbusch, if he entitled, that the trial was damages that felt were so excessive that done, to for a new trial not been motion had though not be unmistak- even it could that verdict said prejudice. ably passion it was the result indicated that pre- 387, 992, Ebert, P. Robinson Wash. exactly case, and as the Hatcher the same situation sented similarly disposed of. was Riegel, an order
In Davis specify which did not on a new trial granted. the 1933 amend- it had This court said that away not take ment of a new trial did the seventh with exercise its discretion from the trial court the to the court be- reference to the when justice had not been done. lieved that substantial presented Mau, 258, 57 P. Silow v. a verdict of two hundred a situation which dollars injuries personal in a suit for rendered amounting A new thousand dollars were claimed. eleven granted trial was
“ on exclusive reason ‘. . . the sole and in the sum of rendered that the verdict $200 ” plaintiffs inadequate.’ favor of This court said: thoroughly was, course,
“The trial court familiar with clearly expressed respondents its case, inadequacy new trial because of were entitled special damage amount awarded. Seven items al- were leged, aggregating At some least evidence was intro- $303. support Had the trial of these items. court deniеd duced respondents’ argument trial, it for a would seem that little motion proposition ap- made that on could be peal, order, an but the court court should reverse such this stating expressly motion, appellants inadequate. were liable The found that *13 respondents, damages in but awarded an amount much than claimed. smaller appealed
“It cannot held that the order from should be expressly appeared reversed because it does not state that it passion that the verdict was rendered under the influence of prejudice. It the must be held that trial court considered governing the law gether the matter of trials, to- opinions construing the same, with of this court the having most long the cases hereinabove cited been determined entry appealed the the before order from.” “The cited,” cases herеinabove referred to near the end quotation, of the Brammer, Hatcher, included the Robinson supra. quoted cases, Also, Davis we the case Silow portion Sewall, that in Swanson v. 183 Wash. (2d) quoted Daigle 462, 939, 48 P. in turn from which Rudebeck, 536, 540, 282 Pac. a statement quoted page opinion, have heretofore on 129of this i.e.: duty
“It is the of the trial court to see that substantial done, is and if he that the amount believes of dam- ages prevailing party inadequate, to the it is as awarded duty grant much his a new trial as it would be the the if defendant, motion of the amount were excessive.” Corbaley County, In v. Pierce P. 993, a new trial was that “against It contended of the evidence.” was amendment, there could that, in accordance with the 1933 “ ‘that on that unless it could be said be no new trial inference from the evi- no evidence or reasonable there is ” justify verdict,’ and this сourt said: dence to in- not restrict the held that this section does “We power a new trial when herent of the court justice has not been done. court is satisfied that substantial [Citing cases.]” Nagle 215, 105 Powell, 5 Wn.
In plaintiffs brought amount of in a verdict for the recovery to trial court reduced the amount of $2,250. The plaintiffs. the consent $935, with The defendants having appealed, plaintiffs asked for restoration of contending
judgment original amount, that there was showing by passion that the verdict was induced no .or prejudice. We said: court, discretion, “If the exercise of its sound done in a satisfied has not been given Of duty aside. case, it is its and its to set the verdict power divested Rem. Rev. court has *14 Lappenbusch, (Sup.), § 176Wash. 399-1. Brammer v. Stat. Mfg. (2d) 35 P. Hatcher Union 625, 947; 30 P. v. Globe County, (2d) King 32; Bennett v. 188Wash. 411, may, (2d) exer- So, in the too, the court 196, 61 P. King Bennett v. discretion, as held in cise County, its we sound
supra, respond- on consent of reduce verdict granting trial. motion for new ents in lieu of granting a in lieu of new “The reduction of verdict respondents consented—reflects conviction trial—to which justice demanded such trial court that substantial of the action.” (2d) (2d) 498, 643, 140 P. Moore, 18 Wn. In Kimball granted specifically “in- on the trial was a new justify sufficiency verdict, and be- of the evidence quoted against law.” This the verdict is cause granting ground trial, a as stated both new seventh then said: amendment, and after the before in that “However, the modification of the statute since previously repeatedly respect, affirmed settled the trial court does not the issue before that, where rule legal question, purely arises from a contro- but a involve verted granting trial is question of a new so fact, the that its largely ruling manifest the trial court with a matter of discretion appеal except not be disturbed thereon will such discretion.” abuse of occasions, there can on several indicated heretofore As a case for the there is where of discretion no abuse Henry Larsen, in conflicting Or, held as evidence. say (2d) (2d) can such 841, unless we 690, 143 P. 19 Wn. law, was, a matter of as of the a case that the verdict only rendered, the order that could be trial must be affirmed. (2d) (2d) 514,followed 354, 147 P. 20 Wn. Ovens, Bond v. Lappenbusch, 947, 30 P. Brammer v. holding § Stat., 399, amended, that Rem. Rev. was historically power intended to restrict the inherent judge grant trial a trial when convinced that sub- new stantial It held that, had not been done. also absence of a stated reason in order trial, ordinarily granted it will be assumed to have been power. exercise of that inherent only given
The indication that we have ever that we any significance attach to the 1933 аmendment in the state- ment of either the fifth or the seventh for a new any way circumscribing as in of a trial Departmental new trial inwas State Brent, 28 Wn. where had been that the verdict “ ” ‘contrary disposing to the was law and evidence.’ After contrary contention the verdict law, to the we turned our attention ato consideration of whether it against the evidence. Attention was called to the fact prior that, to the 1933amendment of Rem. Stat., 399, Rev. *15 long held in a line statutory it was of decisions that the “Insufficiency language, justify of the evidence to the ver- gave very dict,” the trial court broad discretion in the granting trials; matter of and we said: go give of these decisions appear- “Some so far as to long-established ance of conflict is the sole and jury with the rule that the credibility exclusive evidence.” We then called attention to the 1933 аnd, amendment discussing distinguishing any without of the cases in which the effect of the 1933 amendment had been dis- cussed, concluded we that we could review the evidence any and determine whether there was evidence or reason- justify finding able inference to verdict; and, that there the trial court had was, held that abused we its discretion a new trial. The was overruled sitting (State (2d) Brent, En Banc 30 286, Wn. 191 ground (2d) 682), solely on the but that neither Rem. any § Stat., 399, nor the 1933 amendment Rev. thereof had proceeding application, the Brent case was a criminal since applicable statute. Stat., 2181, and Rem. Rev. again supra, Subsequent discussed Brent, State v. to § 399, Stat., to Rem. Rev. the effect of the 1933 amendment (2d) (2d) again 505, 889, 200P. Laos, Potts v. 31 Wn. providing pointed amendment, out that that a new the 1933 granted there be “That is no jus- evidence or inference from the evidence to reasonable tify .,” the verdict does not restrict the inherent . . power of the trial court to a new trial when that court is satisfied that has not been done. involving cases the 1933 amendment Other since trials on the fifth or of new seventh the statu tory grounds they are not here referred to because do not purport construe the amendment under to consideration. (It appropriate might, complete listing however, be our granted new trials have of the cases which because damages. inadequate prior To the ten cases to the amend pages ment, cited 128 and hereof, on should be added subsequent more, four amendment: Thornton v. (2d) Eneroth, 951; 30 P. Swanson v. Sewall, (2d) 462, P. 939; 183Wash. Silow v. Mau, 186Wash. Petey 1059; Larson, 57 P. Wn. 183 P. except affirmed, 1020. All were as to two defendants supra, in Thornton Eneroth, and it was that, held as to question them, there was no for the and the case should dismissed.) only The conclusion that can be drawn from all of the subsequent the 1933 cases amendment is that the amend- ment has made no difference as to the extent or character the review we will make when the trial court has that the verdict is inadequate, excessive or that there is not sufficient evidence *16 justify against verdict, the or that the verdict is the weight of the evidence. In one of the last cases decided adoption Huntington before the of the 1933 amendment, v. (2d) 310, Clallam Grain 175Wash. 27 P. 583, we said: ' conflicting, “Where the evidence is wholly . . . it is grant within the discretion of the trial deny court to or to upon ground a motion for new trial the that the evidence justify verdict, the or the is is insufficient to that verdict weight against evidence, the or that the amount the of inadequate; . . or and the awarded is . either excessive ruling questions dis- of the trial court on such wül not be turbed, discrеtion”; abuse the absence of manifest of Dyal Fire of that the In recent cases is still rule. the Adjustment (2d) 321, Co. 161 P. Bureau, Wn. Allen, McClintock v. 30 Wn. 191 P. practically made identical statements: repeatedly jury, held, “We tried cases before conflicting, wholly that, where the evidence is it is within grant deny the discretion of the trial court to or to a motion upon for new trial the that the insuffi- evidence is against justify verdict, cient to the or the verdict is the weight is, of the evidence, the or that amount awarded court, of the trial either excessive inade- ruling quate, ques- and that the court on such disturbed, tions will not be the absence of manifest abuse Adjustment supra. Dyal Bureau, v. Fire of discretion.” Co. conflicting, wholly it is ... “Where the evidence is grant deny a the trial court to or to the discretion of within for trial made evidence motion justify verdict, or that insufficient to against evidencе, the amount or that ruling inadequate; and the excessive is either awarded questions disturbed, in will not be on such discretion.” McClintock manifest abuse of the absence of supra. Allen, previously made, that in these the statement reiterate We manifest or other- discretion, can no abuse cases there any evidence on if case wise, there from a verdict different could have reached the one rendered. Rule the Present
Rationale ignoring the underlying apparent reason that the It is Stat., 399, is Rem. Rev. amendment to of the 1933 terms supra, legis- Lappenbusch, in Brammer that, as said inherent interfere with not intend to lature did jus- trial where substantial the trial court done. tice has not been *17 analytically, .casually,
No one can read our cases or even being judge without that, convinced a trial when has granted a new trial and has stated the to be the insufficienсy of the evidence to sustain verdict or inadequacy or verdict, of the or has stated no excessiveness grounds, judge we have read into the order trial granted conclusion that the new trial was because substan- justice following excerpt tial had not been done. The from Nagle supra, typical: Powell,
“The reduction of the verdict in lieu of trial . . . reflects conviction trial court that sub- justice stantial demanded such action.” (if may be assumed we eliminate
It those cases which granted law) any are trials because of errors of new grants judge doing trial, a trial a time the order so part justice reflects a conviction on his that substantial pointed such As demands action. heretofore out, that is actually an ultimate conclusion for which there must be may lights reason. The reason be outside the record—“the very atmosphеre trial, and shadows” of the of the court- things judge room, those which are manifest to the trial but captured cannot be for the which record— and in that event agree questions that our review should be limited to the is a of whether there case for the and whether the ver- only possible dict is one as a matter of law. apparent,
It however, that where the reason for the judge’s trial conclusion that has not been insufficiency done is the of the evidence to sustain the ver- inadequate damages, dict, or excessive or the basis for the judge’s may entirely trial action within, record, in such cases the reason for the limitation on the setting review of his action in aside a. ceases present to exist. In such may situations—and the cases among well be subject them—the record should be to re- view to any determine whether there is basis fоr the granting of a new trial. recognize However, we do not such a Instead, distinction. we hold that, when trial granted (a) has been because substantial has not against the (b) was the verdict done, because been to sustain insufficient or the evidence the evidence inadequate (c) were verdict, because (d) by general fact that order, the excessive, or trial connotes for new the motion has by circum- to do influenced so he existing could at stances and conditions part record. not be made a
Disposition Instant Cases the of deciding record, we these cases If we were granting cases trials; but our the orders new reverse would (the judge having that sub require trial said assume us to damages that the done and had not been stantial require inadequate—and either would be sufficient were by judge assumption) con trial influenced that thе the during existing occurring the and circumstances ditions part and, the hav record; could not be made of trial which assumption having ing and found that there was made that different to dam and that verdicts- as the case for a perforce possible evidence, we must under ages were by of discretion no manifest abuse say there that granting trials are his orders new and trial affirmed.
Addendum writing opin purpose of this have had a We (else present disposition beyond cases of ion per by disposed a short curiam matter have been would opinion), have, indicate that we and that tois (to processes this the writer of herein described contribution), placed opinion in a ourselves has made his position decisions, affirm must, in line with our where we granting such orders state: orders new trials when (A) done; has not been That (B) not sufficient to sustain the evidence is That the against of the evi- verdict, that the verdict dence; inadequate
(C) are awarded either That the or excessive:
(D) No or reason therefor: except evidence where there is no case for the or no support other than the one rendered. nothing If is a about situation, desirable need be done futility appeal it bar should take notice of the cases; situation, such if it is not a desirable we should remedy. concerned about Inasmuch as of our revisions practice and the it consideration, rules rules of are under hoped by this to focus the attention of the bench upon problem presented. bar no There is desire judge to interfere with the inherent of a trial subject only possible, trial, to the limited review now where the reasons for trial cannot be part made a hand, record. On the other there should way securing be some a review of such an order when judge’s actually upon the trial action is based the record. Any adopted, require rule effective, to be would that the state his reason or reasons for and, upon also,,whether the order is based the record facts circumstances outside the record which *19 part could not be made a thereof. concur; and Hamley, JJ.,
Robinson, Mallery, (dissenting)—I agree Simpson, C. J. cannot with the con- by majority. clusion reached IV, 4, our state Art. constitution confers this appellate jurisdiction. court We should surrender our perform duty nor refuse to our in cases such as the We should, one before us. in all cases in which the grants trial, review the case and ascertain By opin- whether trial court abused its discretion. ion that, we have declared in the instances mentioned in (A), (B), (C) (D) parties “addendum,” against whom the order is made do not have recourse to this court. as
Hereafter, in cases such we have before us and those attorneys represent “addendum,” mentioned who position appellants are in the individuals who these must say is clients, to their “In so far as the order in this case supreme concerned, orders of there no court—the the Medes Persians.” court are the laws of May rehearing 12, 1950. Petition denied. April 7, Department One. 1950.] 31203.
[No. Respondent, Maralynn A. C. Ward, Ward, James
Appellant.1 Wright, appellant. Wright for' & respondent. Ralph Horr, A. The parties to this action were J.
Schwellenbach, They 19, were both nine Seattle, October married high age, years school, Garfield had attended teen marriage. together year gone before the He for over had children, Susan, Karren and white. Two colored; she is *20 years respec five-and-one-half age six-and-one-half marriage. tively, born, of this Both children the issue were are colored.
1Reported in 216 P.