Brammer v. Lappenbusch

• Decision Date: 16 March 1934
• Docket Number: 24882.
• Citation: 30 P.2d 947,176 Wash. 625
• Parties: BRAMMER v. LAPPENBUSCH.
• Court: Washington Supreme Court

30 P.2d 947

176 Wash. 625

BRAMMER v. LAPPENBUSCH.

No. 24882.

Supreme Court of Washington

March 16, 1934

Department 1.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by Curtis Brammer against C. S. Lappenbusch. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Whittemore & Truscott, of Seattle, for appellant.

Vanderveer & Bassett, of Seattle, for respondent.

STEINERT Justice.

This is an action for damages for personal injuries resulting from a collision between an automobile and a pedestrian upon a public highway. Trial by jury resulted in a verdict for the plaintiff. Motions for judgment notwithstanding the verdict and, in the alternative, for new trial having been denied judgment was entered, from which defendant has appealed.

The questions raised by the assignments of error do not call for an extended narration of facts. Respondent's evidence was to the effect that he was walking along the highway, on the proper side, at night, and, as appellant's automobile approached, stepped off onto the adjacent shoulder, that appellant suddenly swerved off the pavement onto the shoulder of the road and collided with him and that, as a result of the collision, a piece of glass from the shattered headlight of appellant's automobile entered respondent's eye, injuring it to such an extent that it had to be enucleated, and that he was otherwise injured about his body, particularly his back.

Appellant's evidence was to the effect that a passing automobile had struck his left front fender a glancing blow causing his car to swerve to the right; that it then proceeded forward under its momentum, but with its right wheels about two feet on the shoulder of the road; that in the emergency he had immediately applied his brakes to avoid a collision with respondent, who, he claimed, was on the pavement at the time that, despite every reasonable effort on his part to avoid the accident, he was unable to do so.

Although respondent's evidence concerning the negligence of appellant was meager and inconsistent in some respects, it was nevertheless sufficient, in our opinion, to take the case to the jury. We are also of the opinion that, under the evidence, as disclosed by the record, the motion for judgment notwithstanding the verdict was properly denied.

The case, however, presents a question of general importance and consequence in that it calls for the construction of a statute which, no doubt, has already, in other cases, engaged the attention of various trial courts and members of the bar in this jurisdiction.

Chapter 138, p. 481, Laws of 1933, relating to new trials in civil actions, amended Rem. Rev. Stat. § 399, in certain respects, and also added a new section. The statute as it now reads, so far as it is material here, is as follows:

'Section 1. * * * The former verdict or other decision may be vacated and a new trial granted, on the motion of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party: * * *

'5. Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice; * * *

'7. That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law; * * *

'Sec. 2. If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial. * * *'

To get the proper approach to a discussion of the problem Before us, it may be well to explain just how the question was raised, and how it was disposed of, by the trial court. Appellant's motion for new trial was based upon most of the statutory grounds, according to the old statute. The fifth ground of the motion was, 'Excessive damages appearing to have been given under the influence of passion and prejudice,' which is virtually the language of subdivision 5 of the old statute prior to its amendment by subdivision 5 of the new statute above quoted.

The sixth ground of the motion was, 'Insufficiency of the evidence to justify the verdict, and that it is against law,' which is virtually the language of subdivision 7 of the old statute prior to its amendment by subdivision 7 of the new statute above quoted.

In denying the motion for new trial, the trial judge said:

'So far as this case is concerned I agree with counsel for the defense that there are many things in connection with it that to one experienced in the trial of cases would cause us to stop, look and listen Before giving too great credit to some of the testimony. The circumstances were very unusual and peculiar as to the relationship of the parties, and the court probably would have considered all these things in the light of experience as counsel does, and perhaps not given to all this testimony the weight the jury gave. But that is the province of the jury and not of the court.

'It is evident to me that the 1933 legislature intended to and certainly did very materially restrict the power of the court to set aside verdicts of jurors when they are once returned. Why they did it, I do not know, but I think their right to do it is unquestioned. The fact that they did lessen the scope of the former statute as to the rights of the trial court indicates their idea to curtail the rights of the court to interfere with the verdict of jurors. As to the good judgment of the policy I am not concerned.

'I appreciate very much the labor that counsel has expended in preparing this matter and the thorough way in which it has been presented, but I cannot get by the fact that the statute evidently intended to do what it seems to me it has done, that is, to make the verdict of the jury absolutely impregnable and prevent the court interfering other than in cases where it is so fiagrant that no reasonable mind could arrive at that conclusion. As I say, the policy of that is to my mind questionable.'

It is apparent, we think, that the trial court was of the opinion that the statute made the verdict of the jury impregnable against any exercise of discretion on the part of the court with reference to setting the verdict aside, even though the court were satisfied that substantial justice had not been done, and that, wholly because of that view, the court denied the motion for new trial. We believe that the court was in error in its conclusion.

The statute does not attempt to limit the inherent power of the court. The form of its language, it will be noted, is permissive, not restrictive. It says that for certain causes the court may grant a new trial. It does not say that it shall not do so for any other cause. In so far as the amended portion of the statute is concerned, it neither conferred any power upon the court which it did not already inherently possess, not did it attempt to restrict the court in the exercise of its inherent power. Had the Legislature never enacted subdivisions 5 and 7 of section 399, as amended, the court would nevertheless have had inherent power to grant a new trial upon either of those grounds.

It may well be argued that the Legislature could not, even if it should attempt to, control or limit the inherent power of the court in this respect. There is respectable authority for such argument and contention, but we are not called upon the decide that question here. It is, at least, the rule in this state, judicially pronounced, that the enumeration of grounds for new trial does not restrict the inherent power of the court to grant a new trial for any other sufficient cause, unless the restriction is expressed. In Sylvester v. Olson, 63 Wash. 285, 115 P. 175, it is said:

'The inherent power of the courts to grant a new trial where it appeared that an injustice had been done is recognized in the first case reported on that subject of the law. Wood v. Gunston, Style, 466 (1655). In Bright v. Eynon, 1 Burr. 390, 395, Lord Mansfield said:

"The rule laid down by Lord Parker, in the case of Reg. v. Helston, H. 12 Ann. B. R. (Lucas' Rep. 202), seems to be the best general rule that can be laid down upon this subject, viz., 'doing justice to the party,' or, in other words, 'attaining the justice of the case.' The reasons for granting a new trial must be collected from the whole evidence, and from the nature of the case considered under all its circumstances.'

'The enumeration of grounds for a new trial 'does not restrict the inherent power of the courts to relieve a party where an injustice has been done, or to grant new trials for any other sufficient cause not enumerated unless the restriction is expressed. The statutory grounds are generally so broad as to exclude all the errors, accidents, and exigencies which might work injustice at the trial.' 14 Ency. Pl. & Pr. 718.'

All of our decisions have proceeded upon the principle that, if the trial court, in the exercise of its sound discretion, is satisfied that substantial justice has not been done in a given case, it is its right and its duty to set the verdict aside.

In Clark v. Great Northern R. Co., 37 Wash. 537, 79 P 1108, 1109, 2 Ann. Cas. 760, we said: 'Our statute provides that a new trial may be granted, among other grounds, for insufficiency of the evidence to justify the verdict; and this power must be exercised by the trial courts, if at all. These courts should take due care not to invade the legitimate province of the jury; but if, after giving full consideration to the testimony in the light of the verdict, the trial judge is still satisfied that the verdict is against the weight of...