Settee v. Charlotte Electric Railway Co.
86 S.E. 1050
N.C.
1915
Check Treatment
Walxee, J.,

after stating the case: It is not required of us that we should consider the motion for a new trial so far as it was based upon errors in law, for the presiding judge elected to set it aside in the exercise of his discretion, as he clearly had the power and right to do. He was not bound to grant the request of the defendant that he confine his order for the new trial to matters of law, no more than he would be compelled to do so if he had, upon full hearing and investigation, found as a fact that the verdict had actually been procured by fraud or other act of corruption. If he thought that his action in allowing a separation of the jurors was, under the circumstances, calculated to prejudice the plaintiff, he not only had the right, but, in a moral sense at least, it was his duty to set it aside, and it follows that he might so use his discretion as to make it subservient to his moral perceptions or to his idea of what was right and proper under the circumstances. Trials could not be safely conducted upon any other principle.

*367 It bas been said by tbis Court tbat if tbe circumstances are sucb as merely to put suspicion on tbe verdict by showing, not tbat there was, but that there might have been undue influence brought to bear' on tbe jury, because there was opportunity and a chance for it, it is a matter within the discretion of the presiding judge, to set aside the verdict if he thinks it proper to do so. S. v. Tilghman, 33 N. C., 553, 554. It has recently been held by us that when there is merely ground for suspicion, the judge may, in his discretion, set aside the verdict. Lewis v. Fountain, 168 N. C., 279. And it was further said in that case: “Such matters are in the discretion of the trial court, certainly in the absence of a palpable abuse of discretion.”

The discretion of the judge to set aside a verdict is not an arbitrary one to be exercised capriciously or according to his absolute will, but reasonably and with the object solely of presenting what may seem to him an inequitable result. The power is an inherent one, and is regarded as essential to the proper administration of the law. It is not limited to cases where the verdict is found ,to be against the weight of the evidence, but extends to many others. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. Jarrett v. Trunk Co., 142 N. C., 469. We said in that case, at page 470: “One of the most delicate and responsible duties of all those the judge must perform is the use of his discretion in passing upon the rights of litigants, when he has no fixed and certain rule for his guidance, but is left, as Judge Gaston once expressed it, £to his own notions of fitness and expediency’; and while, perhaps, discretion should always be exercised sparingly, and surely not unnecessarily, yet the duty of using it is one the law requires of him, and which he should perform with firmness and without hesitation, in all cases where he deems it necessary to execute justice and maintain the right.” But the precise case is put by Justice Connor in Abernethy v. Yount, 138 N. C., 344: “We do not question his Honor’s power — if in the exercise of his sound discretion there had been on his part, or on the part of any other person connected with the case, any irregularity or inadvertence, or any other like reason, by which the defendant had suffered injustice — to set the verdict aside.”

There was nothing arbitrary here, and not the slightest ground for suspecting even an abuse of discretion. His Honor, inspired, no doubt, by his profound sense of justice, and his earnest desire that each of the parties should have a perfectly fair and equal chance with his adversary before the law, set aside the verdict, as any fair-minded judge would *368 have done if be entertained a doubt as to wbetber tbe trial bad been fair to tbe plaintiff by reason of tbe separation of tbe jurors. It was done for tbeir comfort and convenience, and witb a perfectly correct motive, but, nevertheless, it was for tbe judge afterwards to decide wbetber it was fraught witb any danger to tbe plaintiff’s rights, and bis conclusion, while thus exercising bis discretion, we will not review here. He is better able to decide tbe question than we are, because of bis presence, and participation in tbe trial, where -the situation must have appeared to him far more clearly than we can see it. We do not .now recall a case where tbe exercise of discretion by a judge in such a matter was revised. Tbe action of tbe judge will not do tbe defendant any serious barm. It may lose some time, but nothing more.

This view was well expressed by Justice Bynum in Moore v. Edmiston, 70 N. C., 481. “Our case is favorably distinguishable from tbe cases of S. v. Miller, 18 N. C., 500, and S. v. Tilghman, 33 N. C., 553, in that there new trials were refused, and tbe prisoners were executed, while here a new trial was granted, and tbe only inconvenience seen is tbe trivial one of a short postponement of tbe case. If tbe defendant has merits, be need not fear a second trial; if be has none, tbe new trial is granted in tbe interests of justice.” It is unfortunate, perhaps, that even time should be lost, but trials are constantly exposed to such chances and untoward events, and for that reason, and that justice may not miscarry, this saving power'is lodged witb tbe judge to supervise them, in order to prevent any wrong being done, and bis discretion, therefore, must be ample, if the purpose in confiding it to him is to be fully accomplished.

We see nothing in tbe case to take it out of tbe ordinary rule, that we will not review tbe exercise of tbe judge’s discretion, and certainly not unless there has manifestly been a gross abuse of it, which does not appear by this record.

There was no error in the ruling of the court.

No error.