Cabe v. Department of Labor and Industries, 31150.

• Decision Date: 16 February 1950
• Docket Number: 31150.
• Parties: CABE v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

215 P.2d 400

35 Wn.2d 695

CABE v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 31150.

Supreme Court of Washington

February 16, 1950

Department 2

Proceeding under the compensation act by Thomas Cabe, claimant, opposed by the Department of Labor and Industries.

From a judgment of the Superior Court, King County, James T. Lawler J., granting a new trial on ground that substantial justice had not been done, the Department appealed.

The Supreme Court, Hamley, J., held that the trial court in industrial insurance cases has inherent power to grant new trials on ground that substantial justice has not been done and that exercise of that power in this case could not be reviewed for want of a statement of facts.

Order affirmed.

Simpson C.J., dissenting.

Smith Troy, J. Arnold Cobley, James J. Krinbring Olympia, for appellant.

Walthew, Gershon, Yothers & Warner, Seattle, for respondent.

HAMLEY Justice.

Thomas Cabe, a claimant under the workmen's compensation act, suffered an injury to his right leg and back, on July 13, 1927, while engaged in extrahazardous employment. He filed a claim with the department of labor and industries, which claim was allowed and ultimately closed with an award for permanent partial disability of five per cent. On September 21, 1945, claimant sought to reopen the claim on the ground of aggravation. Following the refusal of the supervisor to reopen the claim, an application was filed with the joint board for a reopening and rehearing of the claim. The joint board granted the rehearing and at the conclusion thereof sustained the previous order of the supervisor.

Claimant then appealed to the superior court. At the conclusion of the trial, the jury, in answer to a special interrogatory determined that plaintiff had suffered no aggravation of the injury since the claim was originally closed. Plaintiff thereafter filed a motion for a new trial on several grounds, the first of these being that substantial justice had not been done. The motion was granted on that ground. Defendant has appealed.

The sole question presented is whether, on an appeal to the superior court from a joint board order, where the jury returns a verdict for the defendant on conflicting evidence, the trial court may grant a new trial on the ground that substantial justice has not been done.

The granting of a new trial on the ground that substantial justice has not been done is not provided for by statute, but is an exercise of the inherent power of a trial court. Sylvester v. Olson, 63 Wash. 285, 115 P.175 (referring to the English cases); Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; Cranford v. O'Shea, 75 Wash. 33, 134 P. 486; Brammer v. Lappenbusch, 176 Wash. 625, 30 P.2d 947; Davis v. Riegel, 182 Wash. 1, 44 P.2d 771; Corbaley v. Pierce County, 192 Wash. 688, 74 P.2d 993; Nagle v. Powell, 5 Wash.2d 215, 105 P.2d 1; Wood v. Hallenbarter, 12 Wash.2d 576, 122 P.2d 798; Bond v. Ovens, 20 Wash.2d 354, 147 P.2d 514; Yocum v. Department of Labor & Industries, 22 Wash.2d 72, 154 P.2d 306; Starr v. Baird, 25 Wash.2d 381, 170 P.2d 655; Potts v. Laos, 31 Wash.2d 889, 200 P.2d 505.

Appellant contends, however, that in industrial insurance cases the superior court acts in an appellate capacity, there being Before the court and jury only the record made Before the department of labor and industries. Accordingly, it is argued, the trial court, in this kind of case, has no inherent power to set aside the verdict of the jury and grant a new trial.

In Yocum v. Department of Labor & Industries, supra, involving an appeal from an order of the joint board in an industrial insurance case, the trial court, without specifying its reasons, granted a motion for new trial made on several grounds, the first being that substantial justice had not been done. We affirmed, saying 22 Wash.2d at page 74, 154 P.2d at page 308 '* * * In the very nature of things, this court cannot determine whether a court has abused its power in granting a new trial, on the ground that substantial justice had not been done (as in Bond v. Ovens) or by a general order (as in ths case), because, in both instances, the trial court, in so doing, may have been motivated by something not shown in the record Before us.'

Appellant asks us not to accept the Yocum case as controlling here, because, it is asserted, the point that the lower court was acting in an appellate position was not raised and was not considered by this court. Examination of the briefs in the Yocum case indicates that the point was not wholly overlooked, though not urged as strenuously as in the case Before us. However, since the contention was not discussed in our earlier opinion, we will here consider it as if presented for the first time.

With respect to causes arising under the workmen's compensation act, the superior court is a court of limited, statutory jurisdiction. It has no original jurisdiction in such cases, but acts only in an appellate capacity. DeStoop v. Department of Labor and Industries, 1 Wash.2d 340, 95 P.2d 1026; LeBire v. Department of Labor and Industries, 14 Wash.2d 407, 128 P.2d 308. Champagne v. Department of Labor and Industries,

22 Wash.2d 412, 156 P.2d 422.

But, while the superior court sits in an appellate capacity and the cause is determined on the basis of the written departmental record, a jury trial is afforded. Either party is entitled to a jury trial as a matter of right, and the verdict of the jury has the same force and effect as in actions at law. Laws of 1939, chapter 184, § 1, p. 579, Rem.Rev.Stat. (Sup.), § 7697-2; Alfredson v. Department of Labor and Industries, 5 Wash.2d 648, 105 P.2d 37.

We believe that the inherent power of the trial court to grant new trials on the ground that substantial justice has not been done, must extend at least to every case where a jury is empowered to render such a verdict, whether or not the procedure is appellate and whether or not the cause is submitted on a written record. There are cases where such inherent power has been upheld, although the cause was tried to the court rather than the jury. Starr v. Baird, 25 Wash.2d 384, 170 P.2d 655. Therefore it cannot be said that the trial court's exercise of the inherent power to grant new trials is necessarily dependent upon whether it was a jury case. Nevertheless, the power is ordinarily exercised in jury cases and the decisions upholding this exercise of power have usually associated its use with the problems arising in connection with jury trials. Thus, in Bond v. Ovens, 20 Wash.2d 354, at page 357 147 P.2d 514 at page 515, we said: 'The right of a trial judge to set aside a verdict if he believes that substantial justice has not been done is probably as old as the jury system itself. We need not attempt to determine that; for, it is sufficinet for our present purpose to point out that the right to trial by jury and the right of the trial judge to set a jury verdict aside and grant a new trial, on the ground that substantial justice has not been done, have existed side by side for centuries in the English courts, and in our state courts since their creation, and, in fact, in...