Bernier v. Anderson

• Decision Date: 11 December 1902
• Citation: 70 P. 1027,8 Idaho 675
• Parties: BERNIER v. ANDERSON
• Court: Idaho Supreme Court

70 P. 1027

8 Idaho 675

BERNIER v. ANDERSON

Supreme Court of Idaho

December 11, 1902

NEW TRIAL-GROUNDS OF.-In granting a new trial, the grounds on which it is granted ought to be stated. However, if it is not stated, the court will examine the record to ascertain whether it contains sufficient error to warrant the granting of a new trial, and if it does, the order will be sustained.

JURY TRIAL-ESTOPPEL.-When a party goes to trial before a jury without objection, he is estopped from predicating error on the fact that the action is a suit in equity and not triable by a jury.

IMPEACHMENT OF VERDICT-AFFIDAVIT OF JURORS.-The affidavit of a juror may be received to sustain the verdict, but not to impeach it except where the verdict was the result of a determination by chance.

MISCONDUCT OF JURY-INTOXICATING LIQUORS.-Error may be predicated on the fact that intoxicating liquors were furnished the jury during the trial, or during their deliberations on the verdict, as it is error for the court to permit the jurors to have such liquors, with or without the consent of respective counsel, except upon the prescription of a practicing physician. State v. Reed, 3 Idaho 754, 35 P. 706 cited and distinguished.

INSUFFICIENCY OF EVIDENCE-SPECIFICATION OF PARTICULARS.-A specification of the particulars wherein the evidence is insufficient to justify the verdict is sufficient, under the provisions of section 4441 of the Revised Statutes, if it designates some particuar material fact in issue and avers that such fact is not justified by, or not sustained by, or contrary to, the evidence.

CONFLICT OF EVIDENCE-NEW TRIAL.-The rule that where there is a substantial conflict in the evidence the judgment will not be reversed, has no application to a trial court when exercising its jurisdiction in passing upon a motion for a new trial.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed; costs awarded to respondents.

W. B. Heyburn, John P. Gray and Jones & Morphy, for Appellants.

The record does not show the grounds upon which a new trial was granted. The granting of a new trial is largely a matter of discretion with the judge of the trial court, but as this court has held, this does not give to the trial court the power to grant a new trial, except upon one of the grounds provided by statute. In this case whether the new trial was granted on the ground that the evidence was not sufficient to support the verdict, or upon some other ground, we are not advised. No reason for setting aside the former verdict and for granting a new trial is set forth in the record. This court has heretofore held that where the record does not show the grounds upon which a new trial was granted, and no error warranting a new trial is apparent upon the record, the order granting a new trial will be reversed. (Lowe v. Long, 5 Idaho 122, 47 P. 93; Sweetser v. Mellick, 5 Idaho 783, 51 P. 985.) Section 4441 of the Revised Statutes of Idaho paragraph 3, provides: "When the notice designates as the ground of the motion errors in law occurring at the trial and excepted to by the moving party, or deemed excepted to, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made the statement shall be disregarded on the hearing of the motion." Defendants, following the very language of this section in their statement on motion for new trial, set forth fifty-seven errors of law upon which they rely to secure a new trial. Defendants rely upon the particular errors set forth, and this court will decide these matters only. All exceptions taken by defendants below are deemed waived if not specified or pointed out in their statement on motion for new trial. (People v. Page, 1 Idaho 102; Purdy v. Steele, 1 Idaho 216; Bohnert v. Bohnert, 95 Cal. 444, 30 P. 590; Fiebaugh v. Masterson, 1 Idaho 135.) Section 4441 of the Revised Statutes of Idaho must be strictly complied with as to the specifications of error, else the statement will be disregarded. (Partridge v. San Francisco, 27 Cal. 415; Hidden v. Jordan, 28 Cal. 302; Fleming v. Alleck, 67 Cal. 226, 7 P. 659.) Where the errors of law upon which a motion for a new trial was made are not specified in the statement, it will be presumed that they were disregarded by the court on the hearing of the motion. (Pico v. Cohn, 67 Cal. 258, 7 P. 680.) The attorneys for both parties agreed that the jury be permitted to use liquor in moderation, and the court ordered that under the directions of the officers such privileges be granted. There is no probability that the privilege was ever abused. (State v. Reed, 3 Idaho 754, 35 P. 706.) The jurors cannot be heard to impeach their own verdict by affidavits that they or any of their number violated their oaths or disregarded the mandates of the court as to their conduct while considering the case. No affidavit of the jurors alleging misconduct of the jury can be legally considered. (People v. Baker, 1 Cal. 405; Amsby v. Dickhouse, 4 Cal. 103; Casto v. Gill, 5 Cal. 41; People v. Wyman, 15 Cal. 70; Turner v. Tuolumne etc. Co., 25 Cal. 400; Polhemus v. Heiman, 50 Cal. 438.) The affidavit of a juror may be used to sustain a verdict against an attack, but it cannot be used to impeach it, except within the limitations of the statute. (Wilson v. Berryman, 5 Cal. 45, 63 Am. Dec. 78; People v. Hunt, 59 Cal. 432.) That the granting of a new trial is not merely a matter of discretion, within the broad rule claimed by respondents, is determined by the constitution of Idaho as well as by the statute law of this state. Section 9 of article 5 of the constitution of Idaho provides that the supreme court shall have jurisdiction to review upon appeal any decision of the district court, or the judges thereof. No discrimination is made as between the questions that may be reviewed on appeal; no special dignity is given to any class of appealable orders or judgments over another; no different rule of determination is stated. The spirit of the constitution admits that the supreme court shall be as ready and apt to correct an error in one class or character of judgment as they are in another. If this is entirely a matter of discretion with the court below as to whether or not a new trial will be granted, and the verdict of a jury set aside, when the procuring of that verdict is the result of a long and expensive trial that may perhaps have exhausted the ability of the litigant to the extent that he would never be able again, either because of the departure of the witnesses or destruction of the means of evidence, or other circumstances readily imagined, to present his case the second time, he would thus be made the victim of the capricious order of the court, setting aside the verdict of the jury thus obtained at such labor and expense, which would result in depriving him of his right. If this is a matter resting alone in the discretion or caprice of the judge who tries the case, as to whether the solemn determination of a jury, the verdict and judgment shall be set aside merely because the thirteenth juror did not agree with the legally constituted panel, why should the statute have provided in express terms that we had the right to review in the supreme court the action of the court in granting the new trial? If no specifications as required by the statute are made, the statement shall be disregarded. The statement must contain so much of the evidence or reference thereto as may be necessary to supply the particular points thus specified and no more. The provisions in relation to the insufficiency of the evidence are as formal as those in relation to errors of law, and the requirement will be strictly enforced. (Doherty v. Enterprise Min. Co., 50 Cal. 187; Rider v. Edgar, 54 Cal. 130; Preston v. Hearst, 54 Cal. 596; Lewis v. Kelton, 58 Cal. 303; Hayne on New Trial and Appeal, sec. 150.) It is necessary to point out the specifications of "facts" as distinguished from conclusions of law on the one hand, and mere evidence on the other. General expressions of disapproval of the verdict are not such specifications as the statute requires. (Hayne on New Trial and Appeal, sec. 150; Treat v. Forsythe, 40 Cal. 488.) Nor must the specifications be directed at mere conclusions of law. If they run merely to legal propositions they must be disregarded. (Moyse v. Griffith, 35 Cal. 557, 558.)

W. W. Woods, Albert Allen, C. W. Beale and A. G. Kerns, for Respondents.

It is the duty of the trial court to grant the new trial whenever he is not satisfied with the verdict if tried by a jury, or with the findings, if tried by the court, and the rule as to conflict of evidence does not apply to the trial court. "The judge should set aside the verdict whenever he is not satisfied with it upon the evidence, and his order in that regard will not be disturbed on appeal if the evidence is substantially conflicting." (Curtiss v Starr, 85 Cal. 376, 24 P. 806; Dickey v. Davis, 39 Cal. 569; Sherman v. Mitchell, 46 Cal. 580.) Where the evidence is conflicting upon the principal questions of fact, and the trial court sets aside the findings and grants a new trial, the appellate court must presume that the court changed its opinion as to the effect of the evidence favorable to the contention of the party against whom the finding had been made, and will not undertake to disturb the decision of the trial court. (Condee v. Gyger, 126 Cal. 546, 59 P. 26; Churchill v. Flournoy, 127 Cal. 355, 59 P. 791-793; Byxbee v. Dewey, 128 Cal. 322, 60 P. 847.) This court had already decided that in cases of appeals from an order granting a new trial the action of the lower court will not be interfered with unless the record shows an abuse of discretion on the part of the lower court. (Jacksha v....