Godfrey v. Godfrey

127 Wis. 47 | Wis. | 1906

Dissenting Opinion

MaRshaul, J.

(dissenting). I dissent from tbe reversal of the order because costs were not imposed on respondent. Our practice as to this subject has drifted far away from that which prevailed when the Code was adopted, and which was intended to be firmly intrenched therein. The trend of evolution has been in the direction of increasing the burdens to be borne by sufferers from unjust verdicts. It has progressed so far, it seems, in that direction as to seriously interfere with the proper administration of justice. The additional step in that regard, taken in this case, moves me to write this history of the matter showing the necessity which exists, in my judgment, for a return to the anchorage of the written law. Our present practice is inconsistent with the Code, inconsistent with that here subsequent to the Code till within recent years, contrary to that in many, and I think most, jurisdictions having a similar Code, and has no logical foundation to support it.

The tendency should be to soften the arbitrary rule that none but a dishonest verdict, which is wrong as contrary to the evidence, can be set aside and a new trial granted, except upon terms, rather than to harden it. It were better, in my judgment, to do away with it altogether. No reason has been assigned here during the history of the court and. none, we venture to say, can be found elsewhere for making the victim of an unjust verdict, — in that it is so clearly contrary to the great weight of the evidence and the law as given by the court as to indicate mistake, bias, or something worse, — pay his adversary for the privilege of another opportunity to submit his grievance to the judgment of a jury. The administration of impartial justice is the great primary principle upon which our judicial system should be grounded. That is what courts exist fox*. They should not tolerate pi’actice rules inconsistent with the purposes of their existence, — rules which rightly or wrongly suggest a purpose to deter persons whose rights have been violated from invoking tbe -law of tbe land for relief. Tbe attitude of courts should be one of invitation to those who have wrongs to be redressed to pass their portals, rather than that of a despot grudgingly dispensing favors for a consideration paid to the alleged wrongdoer. Such is the spirit of the Code. Such is the trend of modem thought. This arbitrary exaction from a blameless party for the benefit of his adversary has an appearance of discouraging litigation by making it burdensome regardless of the merits of the case. Trae, there is no such conscious purpose here, but anything like the appearance of such a purpose, all will agree, should be avoided.

The power of courts to relieve from unjust verdicts is inherent in their jurisdiction, though it is often regulated by statute, as it was designed to be here. That power was recognized at a very early date as essential to guard against possible mistakes, ignorance or bias of jurors, or errors of the court. There are instances on record of its exercise as early as the reign of Edward III. 3 Bl. Oomm. 388. It became later a ■matter of English statutory law. Blackstone thus wrote of it ■in his day: “Granting a new trial” cures all “inconveniences, .and at the same time preserves entire and renders perfect that most excellent method of decision which is the glory of the English law.” 3 Bl. Comm. 391. When that 'was written the arbitrary rule under discussion had not taken shape. Courts were not supposed to be powerless to unconditionally set aside a clearly unjust verdict, in that it was against the great weight of the evidence or the law as given by the court, though not dishonest, except upon condition of the sufferer being mulcted in costs for the benefit of his adversary. They exercised the broadest discretion in cases of strong probability that the decision of the jury was not in accord with the justice of the case.

If we find ourselves today with a rule of judicial making, contrary to the spirit of the Code and wrong in principle, in that it tends to defeat the real purpose of the judicial system, it is a practice regulation which may readily be changed by the same means it has grown to its present state. Why should the courts stand guard at their portals, preventing faultless sufferers from unjust verdicts, that stop short of dishonesty, from having the opportunity, at least, for redress till they have paid their adversary a consideration ? Let us examine the history of the matter in search of an answer.

Prior to the Code in New York its courts commonly held to a very rigorous rule on the subject under discussion. There was supposed to be an inflexible one requiring the imposition of costs on the moving party as the terms of setting aside a verdict as contrary to the evidence. It was applied in cases of what was denominated here in the beginning, perverse verdicts. In view of that, doubtless, the Code makers as part of what was designed to be a new and complete system of procedure, including the regulation of costs, provided as follows:

“The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes 'to set aside a verdict and grant a new trial . . . for insufficient evidence.” Sec. 264, Ann. Code N. Y. 1871.

Note the absence of any express regulation of costs. That was left entirely under control of the trial judge as a part of his discretionary authority, thus enabling him to consider the facts of each case and impose costs or not according to the justice of the matter. The arbitrary rule thus intended to be efficiently abrogated, still persisted for the same reason that many purposes of the Code makers failed partly or wholly. The bench and bar, to a considerable extent, did not receive the new system kindly. So a body of judicial law was soon created treating it as a mere supplement to, or statutory recognition in part of, the old system. In harmony with that the old rule was treated as not having lost any of its vitality. It was applied regardless of whether the verdict was perverse in the sense of being characterized by mere bias or mistake. It was administered so as to warrant tbe belief that nothing short of substantially a dishonest verdict was deemed sufficient to warrant a new trial without terms. Richards v. Sandford, 2 E. D. Smith, 349, and Collins v. Albany & S. R. Co. 12 Barb. 492, are good illustrations. An examination thereof will disclose that the verdicts were perverse, as we shall hereafter define perversity. They are referred fir as perverse, and yet costs were imposed on the moving party. Instances are found indicating that in those days judges sometimes reluctantly applied the rule as it was then understood, but felt bound to do so, not recognizing that the Code pointed a way out of the difficulty.

In Harris v. Panama, R. Co. 5 Bosw. 312, there was no question but what there was some evidence, in mere words, supporting the verdict. The jury probably decided honestly, yet the evidence preponderated so strongly a contrary way as to clearly indicate that their judgment was turned aside (perverted as we shall later show) in some way from the truth of the matter. The’ case was quite as strong as some found in our books where it was held that the verdict was perverse. A new trial was granted at the costs of the moving party. WoodRUKR, J., said:

“I have never fully appreciated the justice of a rule which requires the party, in whose favor a new trial is ordered,'to pay the costs if the error be deemed the error of the jury; but I suppose it to be too well settled to be at present disregarded.”

As we shall see later, the New York doctrine in time took deep root here, though at a late day.

At the outset in this jurisdiction costs were imposed on the moving party on relieving him from a verdict which was contrary to the evidence, or the law as given by the court, or both, wholly as a matter of judicial discretion. The discretion went to the subject of terms as well as the granting of the new trial. No arbitrary requirement as to costs was recognized. Territory v. Doty, 1 Pin. 396 (decided 1844), and Baxter v. Payne, 1 Pin. 501, sufficiently evidence that. Some of the most distinguished counsel of the day participated in the first case cited. On one side it was claimed that, where the moving party who was without fault was entitled to a new trial, he was so entitled unconditionally whether the infirmity in the verdict was insufficiency of evidence or disregard of the law of the case. On the other the most that was claimed was, as indicated in the language of counsel, embodied, in effect, in the report of the case, thus:

“The practice in this country has been to impose terms as a condition of granting a new trial. The matter is entirely in the discretion of the court and cannot be error.”

The court said:

“Generally a court in the exercise of its discretion, in disposing of motions for new trials, can make such order or grant the motion on such terms as may be just. But, when a verdict is set aside on the ground that it is against law and evidence, it should be done without terms. It is the duty of the jury to take the law from the court. It is the province of the jury to decide the facts, and of the court to decide the law. And if the jury should disregard the charge of the court upon the law of the case, it is the duty of the court to set aside the verdict unconditionally."

We venture to say that such was supposed to be the law here from the beginning in 1842 to the adoption of the Code in 1856.

The Code makers in creating a new and complete judicial system for this state covering every subject, including that of the imposition of costs upon parties, adopted verbatim the language of the New York Code. Sec. 174, ch. 120, Laws of 1856. It is now found with one significant change in sec. 2878, Stats. 1898. As changed it reads thus:

“The judge before whom the issue is tried may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial ; . . because the verdict is contrary to law or contrary to evidence.’’

Tbe change, as will be seen, consists in adding “contrary to law.” That is significant in that it is not in tbe New York Code, but accords with tbe practice bere before and after our Code. Tbe revisers explained their work thus: “Amended to express more exactly tbe practice adopted under tbe section as it bas been.”

Tbe practice, as indicated, was wrought into tbe Code and was not thereafter called to tbe attention of tbe court till 1870, wben it was treated in Emmons v. Sheldon, 26 Wis. 648. It is quite remarkable that neither court nor counsel referred to tbe early decisions bere. Counsel for appellant recognized that tbe Code was intended to supersede tbe practice prior thereto, as appears from tbe printed brief. Tbe court did not mention tbe statute but we assume must have bad it in mind and probably our early decisions also, since it, in effect, rejected tbe doctrine of tbe early New York decisions to which we have referred. The facts were tbe same, in effect, as in Richards v. Sandford, 2 E. D. Smith, 349, which was called to tbe attention of the court, yet tbe order granting tbe new trial unconditionally was sustained, tbe court saying:

“Tbe general rule doubtless is, to require the party obtaining tbe order to pay costs. It seems to us that this rule is not inflexible, to be adhered to in every possible case. But when, as in this case, tbe damages found by tbe jury are so small as to force upon the mind tbe conviction that by some means tbe jury acted under tbe influence of a perverted judgment, the court might properly relieve tbe party from tbe payment of costs upon granting bis motion for a new trial. Such an exercise of judicial discretion would seem to be eminently wise in a case of a ‘perverse verdict.’ ”

It is evident tbe court used tbe terms “perverse” and “perversity” in their ordinary sense: as indicating, something quite short of even constructive dishonesty. If tbe court did not have in mind tbe previous decisions bere, it doubtless did the existing practice and used tbe words “pervei*se” and “perversity” to distinguish between bias or mistake and an impartial intelligent application of tbe judgment of tbe jury to tbe evidence. In tbat sense, tbe case is in harmony witb tbe early decisions. It should be particularly noted tbat tbe order granted was treated as in tbe field of discretion and yet tbe imposition of terms upon tbe moving party was treated as also witbin tbat field.

Tbe matter was next referred to in Carroll v. More, 30 Wis. 574. Tbe ease is not of importance because tbe new trial was granted upon tbe ground of newly-discovered evidence.

Next comes Pound v. Roan, 45 Wis. 129. There discretionary authority to grant a new trial in a jury case without terms upon tbe ground tbat tbe verdict was against tbe evidence, was distinctly confined to perverse verdicts. Tbe word “perverse” was evidently used in the same sense as in Emmons v. Sheldon, supra. Tbat case was followed by Smith v. Lander, 48 Wis. 587, 4 N. W. 767; Jones v. C. & N. W. R. Co. 49 Wis. 352, 5 N. W. 854; McLimans v. Lancaster, 57 Wis. 297, 15 N. W. 194; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760. There is only this to be noted about those cases. In Jones v. C. & N. W. R. Co. tbe new trial was granted because tbe jury decided wrongly as to tbe weight of tbe evidence. No terms were imposed. Tbe court distinguished between granting a new trial and failing to impose terms, bold-ing tbat tbe former was discretionary but tbe latter not. In tbat we see tbe second distinct advance from tbe early rule. In McLimans v. Lancaster tbe order did not specify tbe ground. Tbat was conceded to be insufficiency of evidence. No costs were imposed. Tbe order was affirmed. In Evision v. Gramer tbe record did not disclose tbe reason for the new trial. It was allowed at tbe costs of tbe moving party. Tbe court said tbe granting of tbe order in tbat way was witbin tbe discretion of tbe trial judge, suggesting tbat tbe imposition of costs as well as granting tbe new trial were discretionary, — thus apparently taking a retrograde step.

Tbe next reference to tbe matter is one of considerable significance. It is Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363. The vei-dict was contrary to the decided weight of the evidence. It was characterized by bias or mistake, though not dishonesty. The court held that it was within the discretion of the court to grant a new trial unconditionally, citing the early cases where the word “perverse” was not used and the later cases where it was used, and remarking that they were in harmony. The irresistible inference from that is that Justice Tatloe, who wrote the opinion, recognized the force of the Code provision and regarded the word “perverse” as referring only to bias or mistake. He said: “When the verdict is clearly against the evidence, such new trial may be granted without terms.” He was speaking of the facts before him, not of a case where there is such a want of evidence that a verdict ought to be directed.

The subject was next referred to in Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722. There the trial court did not impose costs but stated that the verdict was wholly unsupported by the evidence. The court said that was equivalent to deciding the verdict was perverse, the term “perverse” being used as descriptive of a species of dishonesty; something-much worse than mere bias or mistake. The case at the close of the evidence was a proper one for the direction of a verdict contrary to that found by the jury. Here we find a significant departure from the practice that had existed for nearly fifty years.

The court next dealt with the matter in Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778. No grounds were stated in the order. There was then engrafted onto the rule the idea that no ground for the order appearing therein or in the record, the presumption exists that it was granted because the verdict was against the weight of the evidence, rendering the imposition of costs on the moving party an arbitrary requirement. It was further held that a perverse verdict or one “entirely unsupported by the evidence” are exceptions to the rule requiring tbe party moving for a new trial to compensate bis adversary for tbe latter’s costs of tbe previous trial as terms •of'a rebearing. Here we bave a distinct recognition tbat a perverse verdict is not necessarily contrary to all tbe 'evidence. It may be tainted by prejudice or mistake only.

Next came Garny v. Katz, 86 Wis. 321, 56 N. W. 912. No reason for granting tbe new trial was stated in tbe order •and no terms were imposed. In addition to supporting tbe rule as to tbe presumption being against tbe .order, tbe granting of tbe new trial and tbe omission of terms were again treated as distinct matters, tbe former being a discretionary matter and tbe latter governed by an arbitrary rule.

Next we bave Wilson v. Eau, Claire, 89 Wis. 47, 61 N. W. 290. Tbe order specified tbat tbe verdict was not supported 'by tbe evidence. Tbe court beld tbat was equivalent to saying it was against tbe weight of tbe evidence, and bence tbe order was erroneous because costs were not imposed on the moving party.

That was followed by Becker v. Holm, 100 Wis. 281, 75 N. W. 999, wherein tbe further element was added to the ■rule, that in case an order fails to show tbe grounds thereof tbe record may be examined for the presence or absence of evidence indicating whether the verdict is perverse. Further,— in tbe light of tbe way tbe term “perverse” seemed to bave been regarded since BcJmeicTchart v. Biuewe, tbe court sometimes saying, in effect, tbat it is a verdict wholly unsupported 'by tbe evidence, and sometimes tbat it is something different, though one so unsupported is equivalent to a perverse verdict, — it was said tbat tbe term meant a verdict tainted with something in tbe nature of dishonesty. It would seem •that a verdict without any reasonable basis whatever to support it must partake of dishonesty, at least to tbe extent of reckless disregard of evidence. I think, now tbat so far as tbe expression used in tbat case might be regarded as stating •a limitation of tbe meaning of “perverse” it is too strong. It went too far, as some previous expressions suggesting it did-. •What constitutes perversity, as generally understood in the law and as doubtless understood in the beginning of our judicial history and down at least to the Sehweickhart Case, we will endeavor to show hereafter.

The next in order is Mills v. Conley, 110 Wis. 525, 86 N. W. 203. It is in harmony with the last case cited, in that entire absence of evidence to support the verdict was taken as the test of whether it was perverse. That was followed by Giese v. Milwaukee E. R. & L. Co. 116 Wis. 66, 92 N. W. 356; Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664; R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528. In the Ciese Case this term was used: “If the new trial be granted because the verdict be perverse or entirely unsupported by the evidence, or because of errors of the court, costs should not be imposed.” In the Bank Case the idea in Schraer v. Stefan, as to the presumption in case of an order stating no grounds and imposing no terms being against if, was changed so as to support it.

The next occasion for treating the matter was in Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054. It was held that in case of setting aside- a verdict in the field of discretion terms should be imposed. That added a new element. It had not theretofore been said that the court was powerless in all such: cases to deal with the question of costs favorable to the moving party. It is rather confirmatory of the idea that a perverse verdict must be regarded as substantially dishonest. The idea expressed in Giese v. M. E. R. & L. Co., sup’a, as to the presumption being in favor of the order, nothing appearing to the contrary, was restated. It should be further noted that it is said some reasonable terms should be imposed as a condition of the new trial, suggesting that the terms need not necessarily be the costs of the previous trial. That is in harmony with the Code, and contrary to the rule in previous cases. The Wolfgram Case made a further change in the esr isting rule, in that the idea in Wilson v. Eau Claire, 89 Wis. 47, 61 N. W. 290, that the expression “unsupported by the-evidence” is synonymous with “against the weight of the evidence,” was superseded by the idea that, aided by the presumption, it is synonymous with wholly unsupported by the-evidence or perverse.

The language in the opinion before us indicates that the court has returned to the doctrine of Schraer v. Stefan, supra, and gone one step further than any previous decision. The verdict was set aside as “against the law, contrary to -the instructions of the court, and unsupported by the evidence.” It might have all those infirmities and not be perverse. It could' not be perverse without having one of them. In the absence of anything efficiently changing the matter the presumption is in favor of perversity. Nothing in that regard appears in' the opinion. It was competent to examine the record for evidence of some sort in favor of the verdict which could be-pointed to as rebutting the presumption. The opinion is silent on that subject. It says there was strong support in the-evidence of respondent’s contention, but fails to state there was contrary evidence. An examination of the record suggests that the trial court may well have been in some doubt as-to whether there was any such evidence. So no- reason is given why the presumption in favor of the order should not prevail. Further, the element as to the verdict being contrary to the instructions of the court is not alluded to in the opinion. A jury may act perversely respecting the judge’s instructions as well as in regard to the evidence. The presumption in favor of the order reaches that field. The charge not-being in the record there is no way of rebutting such presumption.

The idea that a verdict contrary to the judge’s charge is-not to be regarded as perverse adds a new burden to a faultless litigant suffering from an unjust verdict, as regards obtaining a rehearing. It is directly contrary to the early de■cisions and not supported by any subsequent one, as far as I can find. It will be kept in mind, at this point, that in Territory v. Doty, 1 Pin. 396, which has been often affirmed, as we have shown, it was said that in case of a verdict contrary to the judge’s charge, it should be vacated unconditionally. For aught that appears here, the court may in terms or effect have instructed the jury to find for the defendant. The evidence is such that we are constrained to say the trial court may have taken that view of it. '

I should say in fairness to my brethren, they believed there was an erasure in the order and some evidence in favor of the plaintiff, in the record, which was sufficient to rebut the presumption in favor of respondent. The word “perverse,” at the outset, appeared in the draft of the order preceding the specification of the grounds we have indicated. It was stricken out before signing. That was thought to indicate unwillingness of the circuit judge to say the jury acted perversely. To my mind, the omitted word was regarded as adding nothing to the language used. I fail to find substantial evidence in the record warranting us in saying the trial court was clearly wrong if it held there was no basis therein for a verdict in ■plaintiff’s favor.

Doubtless much of the confusion on the subject under discussion may be well attributed to insufficient attention to the meaning of the word “perverse.” Perversity does not necessarily signify dishonesty, nor anything of that nature. It suggests a state of being moved consciously or unconsciously, most generally the former, to look at things from a wrong ■standpoint. Dishonesty signifies an intentional violation of the truth. Substantial dishonesty means a reckless or entirely inexcusable disregard of the truth! If a jury, disregarding the judge’s charge, either from good motives or bad ones, or through prejudice or other cause, renders a verdict one way when the evidence clearly preponderates the other, -they act perversely. It would be exceedingly unjust, however, to stamp all such conduct as characterized by dishonesty in any sense. A verdict which is the result of anything ulterior to a reasonably fair application of the judgment of the' jury to the evidence and the law as given by the court, is perverse. Where a verdict is contrary to all the evidence it does not fall within the ordinary idea of perversity, as regards when a verdict should be set aside and a new trial granted,, because in such cases there really is no jury question. Perversity as to a verdict, correctly speaking, relates to some ulterior influence upon a question in deciding a case involving a jury question and in relation thereto.

One of the latest text-book authorities puts the matter under discussion thus:. “Where the verdict is perverse, that is, so clearly against the weight of evidence or contrary to the evidence as to create a presumption of mistake or improper motives of the jury, a new trial should be granted without imposing costs.” 14 Ency. PI. & Pr. 944, 945. Webster defines perverse as “turned the wrong way, not right; distorted from the right,” and the like. The Century Dictionary gives this definition: “Turned away or deviating from what is-, right, proper, correct, etc.: ‘The only righteous in a world perverse.’ ” Of course, the distinguished poet did not intend in that line to suggest the idea of a dishonest world. Rapalje gives this as the correct meaning of a perverse verdict: “A verdict whereby the jury refuse to follow the directions of the-judge on a point of law.” Bouvier defines a perverse verdict thus: “A verdict rendered by a jury which choose not to-take the law from the judge, but will act on their own erroneous view of the law. In such cases, however honest the intentions of the jury may be, their verdict is perverse.” Both of these definitions obviously carry the idea of inexcusable failure to view the evidence in the light of the law as given by the court.

In Saunders v. Davies, 14 Eng. L. & Eq. 532, various expressions were given on this subject. Pollock, C. B., de•fined a perverse verdict in tbe language we have quoted from Bouvier. Marti», B., said: “I never could understand why parties are to pay costs where juries give verdicts contrary to evidence.” Pollock, O. B., said further: “It is time that parties who are in no default whatever, and not responsible .for mistakes committed in the administration of justice, should not be compelled to pay costs when they come' to the court for redress.” Thus it will be seen the English court regarded a verdict tainted with mistake or bias as perverse and subject to be set aside and a new trial granted without terms.

To recapitulate: At the outset in 1844 (Territory v. Doty, 1 Pin. 396) a verdict was deemed perverse if characterized by disregard of the court’s instructions, or by bias, or anything whereby there was not some degree of fair application of the judgment of the jury to the case. It was not deemed to be necessarily contrary to all the evidence, nor tainted with anything in the nature of dishonesty. The manner of relieving from it where there was no such taint, and no disregard of the court’s instructions, was not regarded as necessarily outside of the field of the discretion as to terms.

The situation stated was wrought into the Code in 1856.

Such situation was recognized without question till 1870, .and was then re-intrenched in our judicial system. Emmons v. Sheldon, 26 Wis. 648.

In 1878 a dishonest verdict, — one consciously against the preponderance of the evidence, — as well as one tainted with prejudice, passion, or mistake, was treated as perverse (Pound v. Roan, 45 Wis. 129), the court however approving previous decisions.

In 1886 (Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363) a verdict so clearly against the weight of the evidence as to satisfactorily show bias or mistake; in other words, perversity untainted with dishonesty, was treated as within the field of judicial discretion, both as to a new trial and the terms thereof.

In 1889 (Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722) a verdict so contrary to tbe clear right of tbe matter as to suggest something worse than mere perversity, though spoken of as perverse and subject to vacation unconditionally on motion of the losing party, was classed with a disregard of the judge’s charge.

In 1891 (Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778) a’ mere perverse verdict, theretofore treated as redressible ■within the field of discretion, and a verdict entirely unsupported by the evidence (substantially dishonest) .were put in the same class, the difference being overlooked, giving rise to file absolute right to a new trial in one case, and the discretionary control over the matter in the other. The presumption was said to be, nothing appearing to the contrary, against the existence of elements justifying omission to impose terms upon the moving party.

In 1894 (Wilson v. Eau Claire, 89 Wis. 47, 61 N. W. 290) the idea is found that “imsupported by the evidence” is equivalent to merely “against the weight of the evidence” and inconsistent with perversity.

In 1898 (Becker v. Holm, 100 Wis. 281, 75 N. W. 999) perversity was treated as necessarily involving some element akin, at least, to dishonesty, — a verdict tainted with passion, prejudice, or mistake being confused with one so clearly against all evidence as to suggest wilful disregard of the right of the matter.

In 1903 (Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664) the presumption theretofore said tó be against the order, no grounds thereof appearing therein or terms imposed, was changed to favor i,t on the subject of the existence of elements permitting the vacation of the verdict without imposing terms on the moving party.

In 1904 (Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054) the idea was made prominent that when a new trial is ■granted within the field of discretion the moving party must hear the burden of his adversary’s expenses of the former trial, and tbe previous rule as to “unsupported by tbe evidence” being synonymous with “against tbe weight of tbe evidence” was changed to make it synonymous with “wholly unsupported by tbe evidence.”

Tbe last expressions of tbe court regarding presumptions being in favor of tbe order, where terms of tbe relief- are not imposed on tbe moving party and tbe stated grounds for such order are want of support in tbe evidence and disregard of tbe court’s instructions, and tbe absolute right of tbe matter in tbe latter circumstances, were overlooked so far as tbe opinion discloses.

What has been said as to general principles involved could be supported by many citations from elsewhere. To illustrate :

“Tbe setting aside of judgments and granting new trials being within the discretionary power of the court, it follows that tbe court may attach such terms and conditions to tbe order, whether denying or granting a new trial,, as be deems reasonable and just.” 1 Abbott, Practice and Forms (Mich.) § 833.

“Tbe terms upon which a court will grant a, new trial are peculiarly a matter within its discretion. This must necessarily be so; for so many reasons relating to tbe conduct, management, and peculiar circumstances of tbe trial, may exist, that it would be impossible to prescribe any general rules on tbe subject.” Rice v. Gashirie, 13 Cal. 53.

That tbe authors of the Code intended to establish a rule by written law along the lines suggested in- tbe illustrations, seems plain from tbe wording of tbe statute and tbe state of tbe law at tbe time of its preparation. It is in harmony with reason and common sense. When tbe conscience of tbe court is so moved in favor of a faultless victim of an unjust verdict, — a verdict rendered under such conditions as to indicate plainly that it is tainted by bias, or mistake, or something worse, — as to decide that tbe sufferer shall have another chance to submit bis case to tbe judgment of tbe jury, be should no longer be regarded as a mere suppliant for judicial favor, but be should be competent to demand a re-submission of his case as a matter of right, not merely permitted to obtain that redress by paying his adversary for the privilege. That was the rule before the Code. The Code was not intended to change it, but rather to efficiently guard it.

There is no efficient obstacle in the way of departing from an established rule of practice. Where it has developed through a somewhat shifty. course away from the safe anchorage of the Code and produces unnecessary and unreasonable hardship to litigants and difficulty for trial judges, an orderly and speedy return might well be attempted. In the situation in hand we might tie back to Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363, regarding all decisions up to that time as in harmony therewith, as said therein, retaining the side rules developed from time to time, which are favorable to a liberal and efficient administration. By so doing we would have about this situation:

1. The trial judge may, in his discretion, entertain a motion upon his minutes to set aside a verdict and grant a new trial for insufficiency of evidence or disregard of the court’s instructions.

2. Such discretion includes the subject of imposing upon the moving party his adversary’s costs of the former trial, or not doing so, according as justice seems to demand.

3. In case of the verdict being contrary to the weight of the evidence, a proper exercise of discretion will impose on the moving parly his adversary’s costs of the former trial.

4. In case of the verdict being merely perverse, in that the jury, though acting honestly, through passion, prejudice or mistake did not fairly apply their judgment to the evidence, whether to impose any burden upon the moving party as a condition of granting him relief is to be determined by the trial judge according to the justice of each particular case.

5. In case of the verdict being grossly perverse, in that it is wholly unsupported by the evidence or contrary to the court’s instructions, in other words, tainted with something akin to dishonesty, judicial discretion cannot act rightly on the subject of terms other than to vacate the verdict and grant a new trial unconditionally.

6. In case of an order setting a verdict aside and granting a new trial, but not specifying any grounds though imposing upon the moving party his adversary’s costs of the former trial as a condition of the relief, the presumption is that the verdict was grossly, not merely, perverse.

1. In case of such an order not specifying any ground therefor nor imposing any terms on the moving party, the presumption is that the verdict was perverse..

8. Where the ground stated in the order therefor is that the verdict is unsupported by the evidence, the presumption is that it was wholly so unsupported, or that the state of the evidence and the circumstances were such as to show reasonably that the verdict was influenced efficiently by passion, prejudice, or mistake.

9. All reasonable presumptions are to be taken in support ■of the order, but any such presumption is susceptible of being rebutted by anything appearing in the record reasonably deemed to be sufficient therefor.

Applying those principles- to the case in hand, without going further than they are in harmony with our recent decisions, the conclusion reached in this case seems to me to be wrong. In any event, the unrebutted grounds stated in the order, that the jury disregarded the court’s instructions, stamps the verdict as grossly perverse, entitling the moving party to the unconditional order he obtained.

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Lead Opinion

Kekwikt, J.

1. Tbe evidence, but not the charge, is preserved in a bill of exceptions. It is claimed on the part of the plaintiff that the court abused its discretion in setting aside the verdict and granting a new trial, and.that the evidence fully supports the verdict. There is evidence strongly tending to show that the note was without consideration and never delivered. It is apparent from, the order made by the judge below in granting the new trial that he was of the opinion that the verdict was contrary to the evidence. Under such circumstances the lower court had the right in its discretion to grant a new trial, and we cannot see that such discretion was abused. Such action will not be disturbed unless it clearly appears that there was an abuse of discretion. Eggen v. Fox, 124 Wis. 534, 102 N. W. 1054; R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528.

2. Error is assigned because of failure to order costs paid as condition of new trial. It.is claimed by counsel for respondent that matter of costs on motion for new trial is within the discretion of the trial court. The trial court has some discretion in the matter, but where a new trial is ordered on the ground that the verdict is contrary to the evidence this court has held that a new trial should be granted only on terms. Becker v. Holm, 100 Wis. 281, 75 N. W. 999; Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054; R. Connor Co. v. Goodwillie, supra. On the record before us we hold that the new trial was granted because the verdict was contrary to the evidence, and therefore reasonable terms should have been imposed as a condition thereof. Becker v. Holm, supra; Wolfgram v. Schoepke, supra. There is nothing in the record indicating that the court regarded the verdict perverse.

By the Gourt. — The order is reversed, and the cause remanded with instructions to the court'below to embody in the order granting new trial the payment of reasonable terms by defendant as a condition.