92 P.2d 766 | Mont. | 1939
The sole question presented on this appeal may be stated as follows: Where the jury returns a verdict for plaintiff for one dollar in a case where the evidence as to liability is in sharp conflict, but the evidence as to damages in a substantial amount is clear and undisputed, should plaintiff be granted a new trial on the sole ground that if plaintiff is entitled to any damages she is entitled to more than one dollar? That question has never been decided by this court. It has, however, been the subject of numerous decisions in other states. These authorities hold that such a verdict is in effect a verdict for the defendant, and that a new trial should not be granted. After rigorous and exhaustive search we have not been able to find a single analogous case where this point was raised which failed to hold that the verdict was in effect a verdict for defendant, and that a new trial should not be granted. The case most closely analogous to this case is Rubinson v. Des Moines City Ry. Co.,
Whatever the rule may be in other jurisdictions, from the beginning to the latest declaration we have found on the matter, this court has been committed to the rule that: "The rule is established in this jurisdiction that the power to grant or deny a motion for a new trial is within the sound legal discretion of the trial court (Brunnebend v. Tibbles,
In the case of Odell v. Holloway,
The supreme court of California has repeatedly held that it would affirm an order of the trial court granting a new trial without regard to reasons that may have been assigned therefor, where the action of the lower court was well taken. (Thompson
v. Felton,
The answer was a general denial and an affirmative plea of contributory negligence on the part of plaintiff. The reply denied the affirmative allegations of the answer. The evidence was undisputed that as a result of the injuries sustained by plaintiff she was obligated to pay $48 for hospital services and X-rays and a doctor bill for $175. There was sharp conflict in the evidence on the issue of defendant's negligence and plaintiff's contributory negligence. The jury returned the following verdict: "We, the jury in the above entitled action find our verdict for the plaintiff and assess plaintiff's damages in the sum of $1.00 One Dollar — 00/100." Judgment was entered accordingly.
Plaintiff on May 28, 1938, and within the time allowed by law therefor, moved for a new trial upon the following grounds:
"1. Irregularity in the proceedings of the jury;
"2. Insufficiency of the evidence to justify the verdict;
"3. That the verdict is against law;
"4. Error in law, occurring at the trial, and accepted to by the plaintiff." *602
The motion was argued and submitted to the court on June 7. On June 22 the motion was granted in general terms. Thereafter, and on June 24, there was filed the following order:
"Plaintiff, Jessie Hicks, having heretofore filed her motion for new trial herein and said motion having come on duly to be heard on the 7th day of June, 1938, and the same having been argued by counsel for the respective parties on said date and by the Court taken under advisement, and the Court having duly considered the same and being fully advised in the premises.
"It is ordered that the said motion be, and the same is hereby granted upon the sole ground that if the plaintiff was entitled to recover any damages in this case such damages under the evidence would be an amount in excess of One Dollar ($1.00).
"This order is signed nunc pro tunc as of June 22, 1938."
Defendant has appealed from both orders granting a new trial.[1] Plaintiff made a cross-assignment of error, questioning the validity of the nunc pro tunc order filed on June 24. Her contention on this point is that since the 15-day period within which a motion for new trial must be decided had elapsed on June 22 (sec. 9400, Rev. Codes), the order filed on June 24th was a nullity. Under the view we take of the case it is unnecessary to discuss that feature of the case.
If the order of June 24 can be resorted to for any purpose, it is simply to show what prompted the trial court to grant the motion for a new trial, and as indicating that other grounds asserted in the motion for a new trial were in effect overruled. (Ebaugh v. Burns,
Assuming, without deciding, that we may resort to the nunc[2] pro tunc order for these purposes, we still believe that the court was warranted in granting a new trial. Defendant takes the position that the verdict, being for nominal damages only, was in effect a verdict for defendant, and since the evidence was such that a verdict for defendant would have been proper, a new trial should not be granted on plaintiff's motion. There are cases supporting this contention. (Rubinson v. Des Moines CityR. Co.,
"The evidence is convincing and clear that a substantial loss amounting to many thousand dollars was sustained by the plaintiff by reason of the fire, and if the plaintiff was entitled to recover at all it was entitled to recover substantial damages, and not nominal damages.
"The defendant contends that the verdict for $1, should be treated as a finding for the defendant on the question of liability, and that such finding is supported by the evidence, as there was no sufficient evidence to justify the jury in finding that the fire was caused by the negligence of the defendant, and that the negligence of the plaintiff contributed thereto. While some authority can be found to support this contention, we believe the better rule has been announced in Miller v.Miller,
Continuing, the court said: "In the instant case the verdict of the jury was a finding against the plaintiff [meaning defendant] on the question of liability for the loss sustained by the plaintiff, and there was sufficient evidence to support that finding. The amount of the verdict, however, cannot be justified by the evidence, and the verdict should have been set aside and a new trial granted."
In San Giuliano v. Black White Cab Co., 7 N.J. Misc 448,
In McKibben v. Anthony,
In Gunderson v. Danielson
The reasons given by the supreme court of Iowa in sustaining the trial court's order granting a new trial in a $1 verdict in the case of Herrman v. O'Connor,
Other cases ruling that a new trial is proper when a $1 verdict is awarded and where the plaintiff was entitled to more, if anything, are the following: Riggs v. Smith,
We cannot regard the verdict as one for defendant; to do so is to change the verdict. The jury presumptively were furnished with a form verdict for defendant, but declined to sign it. They signed a verdict for plaintiff. We must accept that as fixing defendant's liability, or else find the jury guilty of misconduct or irregularity. If we find the jury guilty of misconduct or irregularity, then that itself is a ground for a new trial. However we construe the verdict, we cannot say that the trial court erred in granting the motion for new trial. The trial judge treated the verdict as one for plaintiff so far as defendant's liability was concerned, and doubtless felt that he was warranted in so doing.
For an additional reason we must affirm the action of the trial court. The statement in the nunc pro tunc order — if it is proper for us to resort to it at all — does not show definitely the ground upon which the motion for new trial was granted. It had to be granted if at all, upon one or the other of the four grounds specified in the motion set out above. If the motion was granted on the second ground, as it seems to us most likely from the statement in the nunc pro tunc order, then it involved the exercise of discretion on the part of the trial court which we will not overturn in the absence of an abuse thereof. (Bull v. Butte Elec. R. Co.,
The order is affirmed.
MR. CHIEF JUSTICE JOHNSON and MR. JUSTICE ERICKSON concur.
ASSOCIATE JUSTICES MORRIS and STEWART concur in the result. *607