Brunnabend v. Tibbles

• Decision Date: 15 May 1926
• Docket Number: 5866.
• Citation: 246 P. 536,76 Mont. 288
• Parties: BRUNNABEND v. TIBBLES.
• Court: Montana Supreme Court

246 P. 536

76 Mont. 288

BRUNNABEND v. TIBBLES.

No. 5866.

Supreme Court of Montana

May 15, 1926

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Action by Charles Brunnabend against William Tibbles. Judgment for plaintiff, and defendant appeals. Affirmed.

Loud & Leavitt, of Miles City, for appellant.

George W. Farr, of Miles City, for respondent.

MATTHEWS J.

This action was brought to recover damages for the destruction of plaintiff's automobile in a collision with defendant's car. The complaint alleged that the plaintiff was driving with due care and caution on his own side of the road in conformity with the rules of the road, and that the collision was directly caused by defendant's negligence in recklessly driving on the wrong side of the road and failing to turn to the right as the two cars approached one another; that the value of plaintiff's car was $600. The answer denied the allegations of the complaint, and affirmatively alleged negligence on the part of the plaintiff, resulting in damage to defendant's car in the sum of $100, which affirmative allegations were denied by reply.

The case was first tried on September 16, 1924, which trial resulted in a verdict in plaintiff's favor in the sum of $100. Plaintiff thereupon filed and served a memorandum of costs, and then, without causing judgment to be entered on the verdict, moved the court to set aside the verdict and grant him a new trial on the ground of the insufficiency of the evidence to justify the verdict, and that the verdict was against law. The motion was granted. On the new trial plaintiff secured a verdict for $380, on which judgment was duly entered, and plaintiff thereupon served and filed his memorandum of costs, and included therein the items of cost incurred on the first trial. Thereafter defendant moved the court to "retax" the costs by striking from the cost bill all items of cost incurred on the first trial. This motion was denied.

The defendant has appealed from the judgment, but has assigned error only on the court's action in denying his motion for the taxation of costs; on the giving of two certain instructions; and the refusal of an offered instruction. The evidence, in so far as its consideration is necessary to a determination of the questions raised, will be set out later.

The first assignment raises several novel questions not heretofore presented to this court.

1. It is first suggested by counsel for defendant that plaintiff's motion for a new trial should not have been made until after the entry of judgment, and that, by moving for a new trial without having judgment entered, he waived his right to costs incurred on the first trial.

"A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees." Section 9395, Rev. Codes 1921. A motion for a new trial is not directed against the judgment, but against the verdict or decision on which a judgment might be based. Section 9397, giving the right to move for a new trial, does not refer to the judgment, but provides merely that "the former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved," etc. At common law no judgment was entered in a cause until after any motion for a new trial was disposed of, and, in most jurisdictions, including those having statutes identical with or similar to our section 9397 above, the motion may be made as well before as after the entry of judgment (29 Cyc. 727; Spanagel v Dellinger, 34 Cal. 476; Outcalt v. Johnston, 9 Colo App. 519, 49 P. 1058; Fisher v. Emerson, 15 Utah, 517, 50 P. 619; Deering v. Johnson, 33 Minn 97, 22 N.W. 174; Tracey v. Altmeyer, 46 N.Y. 598), while in some jurisdictions it has been held that, where judgment has been entered, it is necessary to vacate the judgment before moving for a new trial (Cook v. United States, 1 Greene [Iowa] 56; Merchants' Bank v. Scott, 59 Barb. [N. Y.] 641; Smith v. Thornburgh, 7 Ind. 144). It would seem, therefore, that plaintiff followed an approved course of procedure, which is, at least, not prohibited by our statute, and consequently should not lose any right otherwise available to him.

2. It is next contended that, as plaintiff had a verdict in his favor set aside, he was not entitled to a new trial as a matter of right, but that it was accorded him as a favor, and therefore, he should have been required to pay the costs of the first trial as as condition precedent to the granting of the motion.

We have no statute directly authorizing a trial court to impose terms as a condition to the granting of a new trial; but in other jurisdictions having similar statutory provisions regarding costs it is held that, in proper cases, statutes identical with our section 9789 (hereinafter quoted in part) are sufficiently broad to vest that discretionary power in the trial court. Brooks v. San Francisco Ry. Co., 110 Cal. 173, 42 P. 570; Wolfe v. Ridley, 17 Idaho, 173, 104 P. 1014, 20 Ann. Cas. 39. We are of the opinion that these decisions are based on sound reason, and, therefore, hold that under the provisions of section 9789 a trial court has such discretionary power in proper cases.

Generally, the determination as to whether the court will grant or refuse a new trial lies within the sound legal discretion of the trial court (Kinna v. Horn, 1 Mont.

597; Caruthers v. Pemberton, 1 Mont. 111; Higley v. Gilmer, 3 Mont. 90; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 P. 153; Martin v. Corscadden, 34 Mont. 308, 86 P. 33; White v. Barling, 36 Mont. 413, 93 P. 348), and, where the motion is made on the ground that the verdict is against the evidence or the insufficiency of the evidence to justify the verdict or other decision, the granting of a new trial is held to be a matter of favor rather than right (Jackson v. Thurston, 3 Cow. [N. Y.] 342; see, also, Walsh v. Conrad, 35 Mont. 68, 88 P. 655; Ettien v. Drum, 35 Mont. 81, 88 P. 659); in such cases "the true rule is to charge the party obtaining the favor * * * with the costs of such proceedings as are vacated for that purpose" (Ellsworth v. Gooding, 8 How. Prac. [N. Y.] 1; Wolfgram v. Town of Schoepke, 123 Wis. 19, 100 N.W. 1054, 3 Ann. Cas. 398; Corbett v. Great Northern Ry. Co., 28 N.D. 136, 148 N.W. 4; 3 Ann. Cas. 398).

However, the question of imposing terms, in cases wherein the trial court has discretion, is also one of discretion, and should be governed by the circumstances of the case. Generally, terms such as the payment of costs are imposed only when the necessity for a new trial arose through some fault on the part of the moving party, or where the motion is made on the ground of newly discovered evidence (14 Enc. Pl. & Pr. 944), and such imposition is entirely illogical, where justice demands that a verdict be set aside for a mistake made by the jury for which the moving party is in no wise responsible ( Rothenberg v. Brooklyn Heights Ry. Co., 135 A.D. 151, 119 N.Y.S. 1001).

Again, where the moving party is entitled to a new trial as a matter of right, the court has no discretion (14 Enc. Pl. & Pr. 930), and, "where the verdict is perverse, that is, so clearly against the weight of evidence or contrary to the evidence as to create the presumption of mistake or improper motives of the jury, a new trial should be granted without imposing costs" (Corbett v. Great Northern Ry. Co., above; see, also, Pierson v. Thompson, 4 Kan. App. 173, 45 P. 944; Connor v. Goodwillie, 120 Wis. 603, 98 N.W. 528). Such a verdict is, in law, a verdict resulting from passion and prejudice, and whether this is so or not is determined solely from an examination of the evidence and reference to the amount of the verdict. Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 P. 1019.

While the question of costs in such a case has not been considered by this court, we have held that a verdict rendered in arbitrary or capricious disregard of unimpeached testimony is one against law entitling the unsuccessful party to a new trial (Harwood v. Scott, 65 Mont. 521, 211 P. 316), and a verdict contrary to the undisputed evidence should be promptly set aside (Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 P. 652).

The cases heretofore cited deal with verdicts against the party moving for a new trial, but the same rules apply to verdict for inadequate damages, where there is a legal measure of damages (Watson v. Harmon, 85 Mo. 443; Taunton Mfg. Co. v. Smith, 9 Pick. [Mass.] 11; Chambers v. Collier, 4 Ga. 193; Bacot v. Keith, 2 Bay [S. C.] 466; Potter v. Swindle, 77 Ga. 419, 3 S.E. 94), or where the verdict is for less than the sum admitted to be due, either in pleading or testimony (Coffman v. Brown, 7 Colo. 147, 2 P. 905; State v. Wilson, 90 Ind. 114; Williams v. Reynolds, 86 Ill. 263), or where the verdict is for less than the amount proved ( Hallberg v. Brosseau, 64 Ill.App. 520; Ziegler v. Osborn, 23 Kan. 464). And in this state the question of the right of a plaintiff to a new trial on the ground of the inadequacy of the award made by the jury was considered in Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 111 P. 348, wherein, after citing the section on new trials (section 6794) found in the Code of Civil Procedure, Mr. Justice Holloway, speaking for the court, said:

"Let us assume that there is not any conflict whatever in the evidence as to the amount which the plaintiff in a given case is entitled to recover, if he is entitled to recover at all, and the only conflict arises upon his right to recover. If, then, the jury in such a case decides in favor of his right to recover, but returns a verdict for an amount less than the uncontradicted evidence shows he is entitled to receive, may he then have a new trial upon the

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