Section 2-801, Oregon Code 1930, defines a new trial as “a re-examination of an issue of fact in the same court after judgment.” Among the grounds for a new trial is “error in law occurring at the trial, and excepted to by the party making the application” : Oregon Code 1930, § 2-802, subd. 7.
1. In reviewing the action of the trial court in granting a new trial, it must be remembered that “all intendments favor an order made by the judge who presided at the trial, granting a new trial”: Bancroft’s Code Practice and Remedies, § 6177.
With reference to the construction of statutes in application for a new trial, 46 C. J., p. 61, § 6, says:
“It has been held that the statutory provisions relating to new trials are remedial and equitable in nature, and are to be liberally construed. ’ ’
Concerning the same subject, the authors of R. C. L. say:
“An application for a new trial is addressed to the sound, legal discretion of the trial court, and should be granted only when the substantial rights of the accused have bеen so violated as to make it reasonably clear that a fair trial was not had. * * * And in very intricate and doubtful cases, notwithstanding the finding of a jury, the court will, in the exercise of its *521 extraordinary discretion, order a new trial in some cases, for the better attainment of justice.” 20 E. C. L., “New Trial,” § 12, p. 227.
In her motion for a new trial the plaintiff assigned error of the trial court, in part, as follows:
“In instructing the jury that they could not allow-punitive damages in an amount greater than the general damages.
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“In giving each of the following instructions requested by dеfendant:
“II. I instruct you that a private person may arrest another without a warrant, when a felony has been committed and such private person has reasonable сause for believing the person arrested to have committed it.
“III. An act done under lawful authority, and if done in a proper manner, can never subject the party to an action, whatever consequences may follow.
“IV. If you believe from the evidence that the crime of larceny of a purse had been committed in the store оf the defendant Meier & Frank Company on the 31st day of October, 1929, and that the defendants had reasonable cause for believing the plaintiff stole the purse, the defendаnts acted within their rights in arresting the plaintiff, if you believe that the plaintiff was arrested, and plaintiff cannot recover in this action and your verdict must be for the defendants.
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“VII. You arе instructed that to constitute an arrest of a person, there must be some actual restraint or detention of such person, and the mere utterance of words indicative of an arrest is not sufficient And in this case if you believe from the evidence that the plaintiff voluntarily went to the office of the defendant Kiernan and remained there without аny restraint, then there can be no arrest and the plaintiff cannot recover.”
*522 Arrest is defined as “the taking of a person into custody, that he may be held to answer for a crime”: Oregon Code 1930, § 13-2101. Section 13-2102 thereof provides for the arrest of another by a peace officer or a private person. Section 13-2105 prescribes the manner for making the arrest. From this section we read:
“An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.”
Section 13-2106 provides that the defendant “is not to be subjected to any more restraint than is necessary and proper for his arrest and detention.” See
Ashay v. Maloney,
Section 13-2116 provides:
“A private person may arrest another for the causes specified in section 13-2111, in like manner and with like effect as a peace officer without a warrant.”
Thе order granting the motion for a new trial says, among other things:
“The reason for this is that the court erred in giving defendants’ requested instructions No. 2, 3, 4 and 7, and that the jury returned a verdict which, under thе decisions of the Supreme Court, was a verdict for the defendant (107 Or. 673 , 681), from which the court concludes that the giving of the said instructions necessarily infers injury to the rights of the plaintiff.”
*523 2. From 7 Bаncroft’s Code Practice and Remedies, § 6170, we take the following:
“An order granting a new trial is not a final disposition of the case, and for this reason reviewing courts regard suсh orders with favor, referring them to the discretion which is reposed in trial courts. A clearer case, or much stronger showing, is required to authorize reversal of an order granting а new trial than to reverse an order overruling the motion. * * * And, in fact, reversals of orders according new trials are infrequent, although not beyond the authority of the reviewing court in a proper case * * *.
“According to the weight of authority, an order granting a new trial will not be disturbed on appeal if the record discloses any tenable ground in support thereof, although the ground is not recited in the order, and although the order affirmatively recites a different ground. * * * A reversal is not warranted unless there has been a gross or manifest abuse of discretion by the trial court, a. misapulication of law, or a disregard of some legal right of the appellant, or unless the uncontradicted evidence all points to but one rational conclusion of fact, which is the one found, by the verdict of the jury. Where, however, the record discloses no statutory ground or sufficient rеason for a new trial, the order must be reversed. ’ ’
In the case of
Metropolitan Life Ins. Co. v. Plunkett
‘ ‘ The granting of a new trial being so much within the discretion of the trial court, this court will not reverse an order of such court granting a new trial, unless error is clearly established in resnect to some pure, simple, and unmixed question of law. Eldred v. Pittsburg County Ry. Co., 93 Old. 163,220 P. 351 .
“A motion for a new trial is addressed to the sound, legal discretion of the trial court, and, where the trial judge who presided at the trial of the case sustained such motion, every presumption will be indulged that such ruling is correct. K. K. K. Medicine Co. v. Harringtоn, 83 Old. 201,201 P. 496 .”
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For a list of eases sustaining this decision of the Oklahoma court, see the many authorities cited in support of
Eldred v. Pittsburg County Ry. Co.,
93 Old. 163 (
3. It must be borne in mind that the power of the court to grant a new triаl is a common-law right, inherent in all the courts of general common-law jurisdiction. See
De Vall v. De Vall,
In
Veazie v. Columbia & Néhalem River R. R. Co.,
“While the granting or refusing' of a new trial for other reasons than those mentioned in section 3-c, article 7, supra [Or. Const.], is not technically a matter whоlly of discretion, yet it is largely so, and we are not disposed to interfere with the discretion that the court exercised * * * in this case. ’ ’
See
Spokane County v. Pacific Bridge Co.,
In the case of
Obermeier v. Mortgage Company Holland-America,
“From a reading of the entirе record, we are led to believe that the matter of the admission of testimony of Sarah Roe was not the sole reason for allowing a new trial. Under all the facts in the case, we are unable *525 to say that the record of the trial was free from error, or that the trial court erred in granting a new trial. The trial court has inherent power to grant a new trial, and whenever the court timely discovers that error has been committed to the prejudice of a party, it may correct the error by setting aside the judgmеnt and granting a new trial, either upon its own motion or upon motion by a party and upon grounds not specified in the motion: De Vall v. De Vall,60 Or. 493 , 500, 501,118 P. 843 ,120 P. 13 , Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.), 291; Rudolph v. P. R. L. & P. Co.,72 Or. 560 , 569,144 P. 93 ; Smith Typewriter Co. v. McGeorge,72 Or. 523 ,143 P. 905 ; Frederick & Nelson v. Bard,74 Or. 457 , 461,145 P. 669 ; Archambeau v. Edmunson,87 Or. 476 , 487,171 P. 186 . It is not necessary for the court to specify in the order granting a new trial the grounds or reasons for the same. Catheart v. Marshfield,89 Or. 401 , 405,174 P. 138 .”
See, also,
Timmins v. Hale,
That the instruction that the jury could not allow punitive damages in an amount greater than the amount of general damages constitutes error there is no doubt. See
Gill v. Selling,
There is no merit in the contention of dеfendants that the order continuing the hearing on motion for a new trial from one term of court to the next regular term was error. See
Rosumny v. Marks,
*526 Following a consideration of the fаcts in this canse and the law applicable thereto, we conclude that the able, experienced, and conscientious judge who heard the testimony and observed the witnesses while testifying conceived that he had committed a substantial error in the trial of the cause that justified him in granting the plaintiff’s motion for a new trial. •
The judgment appealed from will be affirmed.