Coppo v. Van Wieringen

• Decision Date: 06 April 1950
• Docket Number: 31210.,31209
• Parties: COPPO et ux. v. VAN WIERINGEN et al. MYERS et ux. v. VAN WIERINGEN et al.
• Court: Washington Supreme Court

217 P.2d 294

36 Wn.2d 120

COPPO et ux. v. VAN WIERINGEN et al.

MYERS et ux. v. VAN WIERINGEN et al.

Nos. 31209, 31210.

Supreme Court of Washington.

April 6, 1950

Department 2.

Rehearing Denied May 12 1950. W. E. DuPuis, Seattle, for appellant.

Durham Guimont & Durham, Seattle, for respondents.

HILL, Justice.

The question presented is whether the trial court abused its discretion in granting new trials in two actions for damages resulting from an automobile collision, which actions were consolidated for trial and are consolidated on this appeal.

On May 1, 1948 Shields J. Coppo and his wife were in the front seat of their automobile and Bill Myers and his wife were in the back seat. While stopped for a red light, the Coppo car was hit from behind by car driven by Martin Van Wieringen.

Mr. and Mrs. Coppo and Mr. and Mrs. Myers brought actions against Van Wieringen for damages. The jury found for the plaintiffs in both cases; but the plaintiffs, deeming the damages awarded to be inadequate, moved for new trials. These motions the trial court granted, in each case 'on the grounds that substantial justice has not been done and that the verdict is inadequate.'

Our state constitution, Art. I, § 21, provides that 'The right of trial by jury shall remain inviolate,' and it is but natural that litigants and their counsel who have secured a verdict of the jury that is satisfactory to them should consider themselves aggrieved at the action of the trial judge which deprives them of the fruits of their victory by compelling them to take the chances of another trial, especially when no reason is given or when the reason assigned is one that precludes any review beyond a determination that there is a case for the jury and that there is conflicting evidence on a controlling issue. In Jensen v. Shaw Show Case Co., 76 Wash. 419, 136 P. 698, 699, this court said, concerning Art. I, § 21: 'This provision is pregnant with meaning. The courts have no right to trench upon the province of the jury upon questions of fact. It is only where there is no evidence, either direct or circumstantial, which warrants the verdict of the jury that the courts may interfere. In proper cases the jury is an arm of the court; its province is to find the facts; and the province of the court is to declare the law.'

However, in the application of this constitutional provision, only appellate courts have no right to 'trench upon the province of the jury upon questions of fact.' Litigants and their attorneys find that the provision loses its pregnancy, its meaning, or both, when it comes in conflict with the inherent right of a trial judge to grant a new trial either without assigning any reason therefor, or with only a statement of the conclusion that 'substantial justice has not been done' or some reason which we have found necessarily leads to that conclusion: i. e., insufficiency of the evidence to sustain the verdict, the verdict is contrary to the weight of the evidence, or the damages are excessive or inadequate.

Another familiar statement, the following from Dorian v. Benj. E. Boone, Inc., 152 Wash. 681, 279 P. 107, 108: '* * * The court will not set aside the verdict merely because it may differ in opinion from the jury as to the proper award to be made. In actions of tort for personal injuries there is no certain or definite rule by which the amount of the award can be measured. It is a matter peculiarly within the province of the jury to determine, and parties have the right to the judgment of the jury, not the court, upon the matter. Before the court may interfere, therefore, it must be found that the verdict is so far inadequate or so grossly excessive as to be without support in the evidence, or it must appear that the verdict was the result of some extrinsic consideration, such as bias, passion, prejudice, or the like', is found to have no application; and damages for personal injuries cease to be 'a matter peculiarly within the province of the jury to determine' when a trial judge grants a new trial under the circumstances suggested in the preceding paragraph.

The instant cases, presenting as they do a situation in which, on the record, there is no more than a different of opinion between the trial judge and the jury as to the proper awards to be made, present an appropriate occasion for a review of our holdings, to make clear what the law is and, if possible, why it is what it is. The use of subheadings may help in the process of clarification.

Distinction Between Orders Granting and Orders Denying New

Trials in Jury Cases

We would first point out, by way of background, the distinction between a situation where a trial court grants and one where it denies a motion for new trial in a jury case.

When a new trial is denied, a judgment is entered and the appeal is from that judgment, and there may be numerous assignments of error raising questions of fact and law. This court does on occasion reverse judgments, set aside verdicts, and send cases back for new trials after trial judges have refused to grant them; usually, however, because of erroneous instructions, error in admitting or refusing to admit evidence, or other errors of law. When questions of fact are concerned in such a situation, the inquiry of this court is focused upon the verdict of the jury, reinforced by the trial judge's approval (or, if not approval, his recognition that there is no reason why the verdict should be set aside), and the question Before us is, Should the verdict of the jury be set aside?

When a new trial has been granted, the appeal is from the order granting a new trial, and the inquiry of this court is focused, not upon the verdict of the jury but upon the act of the trial court. When purely factual issues are presented, the question considered by this court has ceased to be whether the verdict should be set aside and has become whether there has been an abuse of discretion by the trial court. And when we have found that there was a case for the jury and evidence on which the jury could have reached a verdict different from the one rendered (which is another way of saying that there was conflicting evidence upon a controlling issue), we have consistently held that it is impossible to say that the trial judge abused his discretion in granting a new trial. Rotting v Cleman, 12 Wash. 615, 41 P. 907; Welever v. Advance Shingle Co., 34 Wash. 331, 75 P. 863; Sturtevant Co. v. Fidelity & Deposit Co., 92 Wash. 52, 158 P. 740, L.R.A.1917C, 630; Henry v. Larsen, 19 Wash.2d 690, 143 P.2d 841.

This, of course, constitutes an iron curtain, cutting off any adequate review of whether or not these was any reason for the trial judge to set aside the verdict of the jury and grant a new trial. The justification for dropping the iron curtain will be discussed under the next subhead.

New Trials Granted Because 'Substantial Justice Has Not Been Done'

One of the reasons assigned by the trial judge in the instant cases for granting new trials is that 'substantial justice has not been done.' The statutes which enumerate the grounds on which new trials may be granted (Rem.Rev.Stat. (Sup.) § 399, in civil case; Rem.Rev.Stat. § 2181, in criminal cases) make no mention of such a ground for a new trial; but we have always upheld the right of the trial judge to grant a new trial when he is convinced that substantial justice has not been done, on the theory that it is an exercise of the trial court's inherent power. Sylvester v. Olson, 63 Wash. 285, 115 P. 175; Brammer v. Lappenbusch, 176 Wash. 625, 30 P.2d 947; Bond v. Ovens, 20 Wash.2d 354, 147 P.2d 514; Potts v. Laos, 31 Wash.2d 889, 200 P.2d 505, to cite but a few of the many cases so holding.

Actually, of course, when a trial judge says that 'substantial justice has not been done,' he is stating a conclusion for which there must be a reason or reasons. One of our difficulties in attempting to clarify this phase of the law has been that we have consistently referred to this conclusion as a separate and distinct reason for granting new trials, and have neglected to indicate or classify the bases for the conclusion. The reason we have barred any review of an order granting a new trial based on this conclusion, except as to there being a case for the jury and conflicting evidence on a controlling issue, was expressed by the supreme court of Wisconsin in the case of McLimans v. City of Lancaster, 57 Wis. 297, 15 N.W. 194, 195: 'The judge Before whom the cause was tried heard the testimony, observed the appearance and bearing of the witnesses and their manner of testifying, and was much better qualified to pass upon the credibility and weight of their testimony than this court can be. There are many comparatively trifling appearances and incidents, lights and shadows, which are not preserved in the record, which may well have afffected the mind of the judge as well as the jury in forming opinions of the weight of the evidence, the character and credibility of the witnesses, and of the very right and justice of the case. These considerations cannot be ignored in determining whether the judge exercised a reasonable discretion or abused his discretion in granting or refusing a motion for a new trial.' (Italics ours.)

This statement is quoted in Wait v. Robertson Mtg. Co., 37 Wash. 282, 79 P. 926, and Hinz v. Crown Willamette Paper Co., 175 Wash. 315, 27 P.2d 576.

We find another forceful statement on this subject, this one by the supreme court of Iowa in the case of Dewey v. Chicago & Northwestern R. Co., 31 Iowa 373: '* * * A mention of these considerations upon which the rule for the appellate courts is (in part) founded, is sufficient to show that the rule ought not and does not have any application whatever to the...