Grow v. Wolcott
194 A.2d 403
Vt.
1963
Check Treatment

*1 490 occupied as tenant at the time of

plaintiff the loss. The written con- given by. sent the owner in reality amounts to a new agree- unsealed ment to allow occupancy of after the premises, term sealed out, terms, new, lease ran to continue on certain some and some from the adopted sealed lease. lease had original no extension provisions or renewal new rental took effect when agreement the plaintiff continued in after the occupancy of the term expiration sealed lease. v. Vt. Briggs See Cen. R.R. 31 Vt. 213. From that point only forward the lease involved was the writ- ten unsealed instrument signed by owner in connection his assignment. consent to the The fire occurred after the new arrange- ment had taken effect. Under the terms of the insurance policy, so long as there awas valid rental agreement within the provisions of policy, defendant was bound honor it. concedes,

As the defendant the unsealed agreement provides for an extension a further lessee, ten at the years option rather than a renewal. Brownell v. Burlington Savings Fed. & Assn., Loan 6 A.L.R.2d 444. With term additional entirely hands the plaintiff, had term, an insurable full interest twenty-year and a right to be indemnified therefor according to the undertaking of the de Estate, fendant. See In re Reynold’s Atl. Judgment affirmed.

Julian F. Grow et al v. Theron Wolcott

[194 A.2d 403] Term, March Hulburd, J., Holden, Shangraw, Barney Smith, Present: C. JJ.

Opinion Filed October *2 Lynch plaintiffs. & for the Underwood

Conley Foote the defendant. .& Barney, motion to set J. trial plaintiffs’ court granted trial. new in the defendant and ordered favor of here for At the the court certified that defendant request order, a final trial is not review. Since order for a new was review this Court. necessary obtain procedure a verdict insupportable Aside from the to set aside obligation circumstances right, a matter of a trial court has the when a matter of a verdict order a new trial as justify, to set aside nature, of its this is a to be used right sparingly discretion. Because But, when asked to exercise its dis extraordinary circumstances. so, court is do cretion in an the trial bound to appropriate situation, whether, favorably matter it to rule on the so determines doing, situation, or not. where a has called requested party action the court for a for the court discretionary ruling, improper question to refuse to utilize its to decide the as matter of dis *3 to rule a cretion. to be bound as matter of law will not Purporting satisfy the claim on the court’s discretion. Paul moving party’s v. Drown, A.L.R. 189 Atl.

We of a speak right, discretionary. it as because is Discretion choice; the involves to either act or not act. If the right circumstances make or not no acting, acting, room obligatory, and the result is described as being required “as matter of law.” a whereas, The decision of the court in such a case is on duty; founded matter, in a it is founded on the discretionary privilege right court to choose between and affirming denying, and not acting acting, to its according judgment. of

This discussion matters perhaps is in quite self-evident another, tended to underscore and perhaps equally con plain, logical is, of to make a That sequence right discretionary decision. that court, a appellate ruling made as a matter reviewing properly discretion, must affirm the of decision of the trial if the action took was one of the discretionary courses to it. To open otherwise would be to say deny discretion to the trial court.

In this case the trial court was moved to act plaintiffs that the verdict who asked be set aside and a new trial granted. Their a matter law and as a as matter relief both sought motion trial with- for a new their request trial court granted discretion. accept to appear The plaintiffs ruling. for the out the basis out for granting was basis that there the defendant claim of argument their law, state that they because matter of motion as a aspect. to is confined ruling support in the of evidence consequence presence inevitable is an the defendant. supporting claim and the plaintiffs’ controverting case evidentiary support without being a as A motion to set of con- fails in the presence ruling as requires in favor finding jury support sufficient evidence flicting 160, 165, A.2d 180. Cushman, party. Skoll prevailing it to be made assuming in this case therefore approach We a matter of discretion. trial new grant places a verdict and A motion to set aside been having The action the trial court. heavy responsibility may a jury in order that assembled and the participants instituted issues, hesitant understandably a court would be factual resolve the again. order it all done over the whole at naught proceeding set Indeed, they having difficulty agreeing, a jury it is often said to a second proceed have in there is no assurance that mind that should have the matter a manner jury, presented with a second ing, to a court to resolve. This same consideration about any applies easier discretion, a matter of the verdict of a after a full to set based, trial. The to set aside a verdict on the right ultimately, that an' would result from that ver injustice permitting proposition Russell v. Pilger, dict to stand. A.2d 403.

The circumstance that the trial court’s view of the facts inclined come to a conclusion that of the contrary have it to might the verdict. Verdicts are not give does not it the disturb *4 to be for it is the lightly disregarded, proper province 282, fact. Dashnow v. Vt. Myers, settle questions A.2d 859. of the motion to set aside discretionary grounds case,

the verdict the evidence in it is the of the depend upon trial court to consider that evidence in the most favorable to the light viewed, if the the evidence is so of the trial judgment verdict. When it that the clearly court tells verdict is because the wrong unjust have the reasonable and substantial disregarded it, against through passion, prejudice found or some misconstruction matter, requires that the court’s discretion be judgment supra, exercised to set aside that verdict. Russell v. Pilger, 113 Vt. 37 A.2d 403. On are appeal, rulings tested different standards. Russell Pilger, See at supra, pages 551-3. When this Court called review the trial court’s of a motion to set disposition trial, verdict and a new grant we are bound to accord to the all ruling presumptive like possible support, very that the trial court give should to the verdict jury. Towle v. St. Albans Publish Co., 134, 142, ing Vt. 165 A.2d 363. The burden of showing that the court below has gone astray attacking party ruling.

Even though is evidence the case preponderating favor of the verdict which was set the reviewing court cannot disturb the unless a to the one opposite set aside would have no reasonable evidentiary basis. Belock v. State Mutual Fire Co., 435, 443, Insurance 106 Vt. words, 175 Atl. 19. In other if the state of the evidence is such that the trial had no act as discretion, a matter of then this Court reviews the action as one under Then, taken as a matter of law. if the action cannot stand law, it must be reversed here. This is what is meant when it is said that this Court has dis- cretion reviewing discretionary of the lower rulings court. See Towle v. Albans Publishing St. 363; O’Brien v. Dewey, 120 143 A.2d 130. We

are bound to pass on these rulings a matter of without the of choice based on a privilege weighing evidence which is the discretionary right of the trial court. We can intervene when only bounds of right are overreached and abused. This occurs when the lower court purports rule as a matter of discretion in an area where the so, situation did not leave free to do or else when the lower court was to act demonstrably inspired by improper motives or untenable reasons. O’Brien v. Dewey, 143 A.2d

49S difference, from the there is a noted that be must also It to set court, refusing a ruling between reviewing view of the point the verdict and a to set aside motion one granting a aside whether to determine of this Court a new It is trial. grant most light in the the evidence court has viewed the lower not aside assures A to set a verdict the verdict. refusal favorable to has been the verdict But where has been so evaluated. the evidence evidence that the demonstration there is no such automatic set most favorable to verdict. aspect been in the has viewed between There difference significant is also a is burden obliged satisfy proof a verdict in favor of one who (usually defendant). and one who is not (usually plaintiff), defendant, a a to reinforce favor of tends requirement if the not his case. he recovers does make out properly plaintiff since defendant, to set aside a verdict in favor of A trial presuming eviden plaintiff’s be sure it consideration to the gives adequate must Therefore, even the ultimate responsibility. though tiary one, satisfied as there is threshold test which must be least, law. At the when a verdict in favor of a defendant aside, there not the burden of is set must be evidence having proof sufficient to if in the satisfy proof, light the case burden viewed this, be no most favorable to Without would plaintiff. Belock v. State Mutual evidentiary required by reasonable basis Co., Fire Insurance 175 Atl. 19. This test supra, as a matter of as in the case of a defendant’s motion applies Press, Rice’s Admr. directed verdict. See A.2d 397.

It inis the context of all the action of the trial in rejecting the verdict be must reviewed for reasonableness. This Court can interfere with a discretionary ruling, made in good faith and based on the if weight only the result reached clearly Belock unreasonable. v. State Mutual Fire Insurance 175 Atl. 19. this case are parties disputing about the reconstruction of a cellar wall which failed as originally built. The who plaintiffs, house, defendant, own the presently and the the contractor built who house, and sold the came to an agreement whereby the defendant plain- failed and the wall, It again he did. rebuild the which the wall. contractor, rebuilt successfully who another tiffs hired damages represent associated losses of this Operation cost *6 as to what The evidence of the defendant. to recover plaintiffs sought claimed defendant The disputed. to do was the had agreed defendant him by given directions in the accordance that he made repairs the not direct did they claimed that the The plaintiffs. plaintiffs he promised and that wall, the the rebuilt manner which defendant testimony The satisfactory manner. in a reconstruct it to tend- in the case was evidence and there sharply, conflicted principals de- the dispute Resolution of claims of each side. ing support the witnesses. credit accorded on the testimonial pended a guarded exercise of may support a situation Such of the case circumstances if the peculiar of the trial on part the jury, negate in the fact-finding province to intervene impelí it that showing trial. There has been a new their verdict and award improper for or inappropriate or exercised this discretion was abused 283, 155 A.2d 859. 121 Vt. Myers, supra, reasons. Dashnow v. of the trial uphold ruling circumstances we are bound to such Atwood, 434, 435, Atl. 591. Temple v. court. for actions of review that the rules of recognize We it since party, burden on heavy appealing the trial court a place misapplied that his to demonstrate responsibility Dashnow Myers, rule a matter if discretion. v. its as right abused unanimously 155 A.2d This Court feels 859. whom such is set party against that when a have the indicate, request, is entitled to court below ruling runs disclose, by as a matter of discretion and ruling whether or not was for that the jury the basis its ultimate conclusion findings, specific erroneous result. There is an on the unjust obligation reached an action is not an invasion of merely trial court to demonstrate his jurisdictions have such a rule. jury’s Other province. Israeloff R.I., Taxicab Company, v. Whitehall a ameliorate the harsh results of possible having made as matter law reach us in the actually presumptive guise law Haven discretionary ruling, existing requires. v. Ward Estate, 114 A.2d 413.

The order new trial is and the cause is remanded. affirmed Holden, result. concurs J.

Hulburd, J., say “We dissenting. majority C. of law without rulings are bound to on these pass of the evidence which is the on a weighing of choice based privilege made— trial court” —when this statement is to a concrete application, it means. Reduced we have to consider what evidence, no matter slight, may substantial how any it comes this: court in its discretion as a sufficient basis for regarded be the trial evidence no matter how against setting opposing I al comfortably myself cannot commit such a strong. position numerous decision tending (See, we have to this effect. though however, v. Mutual Ins. 109 Atl. Spaulding 94 Vt. 42, Life 22.) Inc.,

In Lind Industries 278 F.2d the matter Schenley came under aside verdicts examination and was fully dis- and dissenting opinions. cussed majority majority say *7 a verdict is set aside solely where the that it is ground against evidence, weight the of the “it then becomes the of the appellate scrutiny tribunal exercise a closer of and degree than supervision” it would where a verdict is set aside because of other specific perni- cious elements which intruded into may have the trial. Perhaps this is of that the equivalent saying the court appellate has limited dis- cretion review trial court’s discretion. This the of majority this Court deny. event,

In any we are all that the agreed court appellate inter- may where the trial has vene abused its discretion. some Certainly sort of review must be had to determine in a given case whether this Moreover, I extent, is so. think we can generalize as was done Industries, Inc., supra, in Lind v. and Schenley say that whenever the of the before the court is subject litigation easily and simple compre- so by any intelligent layman, hended that the main function is jury’s witnesses, the veracity to determine it is not for the trial court to override the determination and substitute its jury’s judgment by setting that of the aside the verdict as the jury being against weight evidence, the and if the trial court does so it abuses its dis- legal of fairly each side of an issue is evi- supported by cretion. the Where dence, case, in this the trial court not to ought usurp as was true the no doubt trier of the facts. We have as the function

prime trial court’s action should be resolved as to the uncertainty that any the record favor, court should read and that the reviewing its trial court the evidence hearing has advantage which light mind, is advan- that this must be borne in however, first hand. It is shared well. tage by which Where, case, working against in this the burden of proof action, to its trial court as to constitute a further hurdle action so it that much more difficult to sustain the trial court’s action. it makes I am to do so in this unable case.

Shangraw, J., I am in an join unable to affirmance. dissenting. detail, forth evidence in setting further is apparent Without the record that the evidence is at and if from least equiponderant, in the scales defendant’s favor. anything tip passing upon made the trial court in aside the verdict discretionary ruling by trial, ordering majority new opinion appears express view, right or cannot its in this case. wrong, question propriety — —we It is view that the evidence does my justify not a conclusion. An based untarnished sufficient should not be under the of a destroyed guise discretionary ruling.

Many have been made courts to attempts by define dis- judicial cretion with no result. As stated in the harmonizing case Hubbard Hubbard, 77 Vt. 73 at pages 77 58 Atl. 107 Am. St. 969, “All 67 L.R.A. Rep. agree discretion judicial never intended the whim or caprice nor magistrate, a course of action inconsistent with itself in judicial dealing with cases essentially “, alike.” . he is altogether . not a law unto . himself, . .” “All may thus be judicial considered as exercisable within only sense, the bounds reason and in the justice broader and to be abused overpasses when it these plainly bounds.” *8 the By setting aside verdict in this case the trial court was called proceed cautious upon deliberation. In the exercise of this the lines are guide cogently expressed in the case of Dash 273, 121 Myers, now v. Vt. at 283, 282 859, and 155 pages in language. the following this,

“In the judgment jury expressed in the verdict is, instances, and should be in most final. Where there is a conflict

499 to disturb empowered in the trial court is not differs with that the conclusion result of the because jury merely Yet, in those occasional have reached. might which the judge influence of astray, has gone by it is clear jury cases where taken an obviously or has jury because passion prejudice, it is the of duty of merits of the controversy, mistaken view the verdict,” motion, court, reject the upon proper 383; Johnson, 162 Atl. v. Rule Smith citing v. Martin, 111, 122, 106 Atl. 666. case, confirms the views Myers supra, expressed Dashnow v.

The 113 wherein at Pilger, in the case of Russell v. Vt. 37 A.2d following 551 statement: appears 550 and pages fact; is the to settle province jury questions “It that different fairly when the evidence is such minds would to different conclusions thereon trial court has come reasonably its view of findings jury, although to disturb the way.” the facts have inclined to find other might of a of a motion to set disposition discretionary ground the evidence in case it is the aside a verdict depends consider the evidence in the view most the trial court to favorable to 551; Russell v. Pilger, page the verdict. Woodhouse v. Wood house, 758. Atl.

It be the rule that an court will prevailing appellate appears one greater in cases as the under consideration with interfere reluc- has overruled a motion for a than when a trial court new trial. tance one more of caution to an admonitory This rule to be appears appellate enlargement rather the trial power than court. Strode Strode, Ky. S.W. A.L.R. 313. v.

The evidence clear-cut presented question. plaintiffs their case proving preponderance had the burden of the evi- could and did come to the conclusion dence. The plain- being tiffs had failed so the respect. defendants were Skomorock, R.I., 470; King entitled to the verdict. v. 190 A.2d R.I., Taxicab Company, 190 A.2d Whitehall Israeloff it is After consideration of the evidence that the my judgment wrong trial court was the verdict because clearly disturbing was such that reasonable men could come to different con- evidence *9 disclose, nor has the trial court thereon. The record fails elusions reasonable No basis out, in the verdict. any impropriety pointed motion. action in granting of the trial court’s appears support Kunkel, 145; 17 Kan. see Kansas Pac. R. Co. v. subject On this Strode, Am New Trial supra; §§131-134; Strode v. C.J.S. Jur. 219-222. (b) pages §70 here concerned a claimed abuse discretion. are

We the motion to set aside trial court had discretion large acting upon discretion, one. legal arbitrary however it was a and not an are the bounds of invaded then arises the legal of such action. It is legal propriety justice my question view that the trial court exceeded its control over the judicial and abused its discretion in the verdict. verdict I reverse and remand for order on appropriate judgment favor defendant. Malloy Corp.

Bernice O. et al v. Lane Construction

[194 A.2d 398] Term, May Hulburd, J., Holden, Shangraw, Barney Smith, C. JJ. Present:

Opinion Filed October