Alberts v. Rasher, Kingman, Herrin

• Decision Date: 04 January 1924
• Docket Number: 18172.
• Citation: Alberts v. Rasher, Kingman, Herrin, 128 Wash. 32, 221 P. 975 (Wash. 1924)
• Court: Washington Supreme Court
• Parties: ALBERTS v. RASHER, KINGMAN, HERRIN.

221 P. 975

128 Wash. 32

ALBERTS v. RASHER, KINGMAN, HERRIN.

No. 18172.

Supreme Court of Washington

January 4, 1924

Department 2.

Appeal from Superior Court, Spokane County; Blake, Judge.

Action by William Alberts against Rasher, Kingman, Herrin, a corporation. Verdict for plaintiff, and, from an order granting a new trial, the plaintiff appeals. Affirmed.

Appeal and error k1015(2)--Granting new trial not disturbed, where evidence conflicting.

Where there was a positive conflict in the evidence at the trial the action of the court in granting a new trial on the ground of the insufficiency of the evidence to justify the verdict will not be disturbed.

Neil C Bardsley, of Spokane, for appellant.

MITCHELL J.

The appellant sued the respondent to recover the amount alleged to be due for goods sold and delivered. The answer of the respondent was a general denial.

The jury returned a verdict for the appellant. The respondent moved for a new trial setting up various statutory grounds therefor, among others that the evidence was insufficient to justify the verdict. The motion was granted generally; the court assigning no reason therfor. From the order granting the new trial, this appeal has been taken.

The record presented to us shows that there was a positive conflict in the evidence at the trial. The decision on the appeal must be against the appellant, according to the often repeated rule in this state. In the case of Faben v Muir, 59 Wash. 250, 109 P. 798, we said:

'In the early case of Rotting v. Cleman, 12 Wash. 615, 41 P. 907, this court announced the rule that it would not disturb the order of a trial court granting a new trial on the ground that the evidence was insufficient to justify the verdict, where there was a substantial conflict in the evidence, and Mr. Hayne was quoted as saying that this rule had been announced more frequently than any other rule of practice. The rule has been adhered to by us ever since, and is now the established rule of practice governing appeals in such cases. Hughes v Dexter Horton & Co., 26 Wash. 110, 66 P. 109; Welever v. Advance Shingle Co., 34 Wash. 331, 75 P. 863; Latimer v. Black, 24 Wash. 231, 64 P. 176; Gregg v. Northern P. R. Co., 49 Wash. 183, 94 P. 911; Angus v. Wamba, 50 Wash. 353, 97 P. 246.'

Recent cases to the same effect are Austrem v. American Sav. B & T. Co., 122 Wash. 399, 210 P. 781; Sutherland v. N. P. Ry. Co. (Wash.) 214 P. 823...