Crowl v. West Coast Steel Co.

• Decision Date: 13 January 1920
• Docket Number: 15459.
• Citation: 109 Wash. 426,186 P. 866
• Court: Washington Supreme Court
• Parties: CROWL v. WEST COAST STEEL CO. et al.

186 P. 866

109 Wash. 426

CROWL v. WEST COAST STEEL CO. et al.

No. 15459.

Supreme Court of Washington

January 13, 1920

Department 2.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by B. A. Crowl against the West Coast Steel Company and C. B Bell. Verdict for defendants. From an order granting a new trial, the defendants appeal. Reversed and remanded, with instructions.

James B. Murphy and Arthur H. Hutchinson, both of Seattle, for appellants.

Burkey O'Brien & Burkey, of Tacoma, for respondent.

BRIDGES J.

This was a suit for personal injuries. The complaint, in substance, alleged that near the intersection of Twenty-First and Junette streets, in Tacoma, Wash., the defendants negligently caused their automobile to run against and over the plaintiff, thereby injuring him. This location is in the residence portion of the city. The defendants denied negligence and set up contributory negligence as a cause of the injury. There was a verdict against the plaintiff and in favor of the defendants. The plaintiff asked for a new trial based upon the various statutory grounds. The court later made an order granting such new trial. The appeal is from that order.

We are met at the outset with the contention of respondent that the granting of a new trial is within the discretion of the trial court, and that this court will not interfere with the exercise of such discretion except for manifest abuse thereof. That such is the general rule in this state cannot be denied. Nordeen Iron Works v. Rucker, 83 Wash 126, 145 P. 219; Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; Gardner v. Lovegren, 27 Wash. 356, 67 P. 615; Dunkle v. Spokane Falls, etc., Ry., 20 Wash. 254, 55 P. 51. However, the doctrine that the granting of a new trial is in the discretion of the trial court can be applied only to those instances where the trial court has so acted on grounds involving questions of discretion as distinguished from grounds involving questions of law. For illustration, the court would exercise its discretion by granting a new trial because he believed the evidence was insufficient to justify the verdict, or that there had been misconduct on the part of the jury or some of the parties to the suit. But where a new trial is granted because the court is of the opinion that he has erred in some matter of law, such, for illustration, as the giving or the refusing to give certain instructions there would not be an exercise of discretion. In the case of Dunkle v. Spokane Falls, etc., supra, the trial court granted a new trial for the reason that he was of the opinion that he had erred in denying the plaintiff's motion to dismiss the action. This court said:

'Respondent invokes the familiar rule that a motion for a new trial is a matter addressed to the discretion of the lower court, and that the order of the court will not be disturbed unless the record discloses an abuse of discretion. But it will be observed in this case that the order was based upon the sole ground that the court committed error in denying plaintiff's application to dismiss his action. This raises a clean-cut legal proposition, not involving in its determination the exercise of any discretion, and there is nothing in the general rule which will prevent this court from reviewing the order.'

In the case of Gardner v. Lovegren, supra, this court said:

'It is true that the granting of a motion for a new trial is, in a certain sense, discretionary with the trial court; and, if it were upon matters of fact, the appellate court would hesitate to set aside an order made by the trial court, unless it plainly appeared that the discretion was abused. But in the case at bar it is a pure question of law, and this court will act upon it independently and uncontrolled by the judgment of the lower court, as it would upon any other question of law which was brought to it upon appeal.'

But the respondent insists that, inasmuch as the order granting the new trial was a general one and did not designate the grounds upon which it was made, this court cannot tell whether the trial court acted in the exercise of its discretion or because of some supposed erroneous ruling involving purely legal propositions. We are convinced, however, that the record shows the grounds upon which the court made its order for a new trial. The court was considering four propositions, as follows: (1) Alleged misconduct of one or more of the jurors; (2) alleged misconduct of defendant's attorneys in addressing the jury; (3) submitting to the jury certain special interrogatories without having given permission to plaintiff's attorneys to argue thereupon; and (4) the giving by the court of its instruction No. 17. The record makes it plain that the trial court did not grant the motion for a new trial on either of the first two grounds. The court said:

'I think there was misconduct of the jury, but not very serious. * * * I cannot bind the Supreme Court on what they will review. I do not think there was any misconduct of counsel, but I do not know what the Supreme Court might think.'

Later the court made and filed in the cause a memorandum decision wherein it is stated that----

A new trial 'is granted in this action for error in instruction No. 17, presented by the defendants; also for misconduct of jury and error in the submitting of interrogatories. The last ground standing alone would not require a new trial, but the error in instructions makes a new trial mandatory.'

It is therefore plain that the court did not grant a new trial on the ground of misconduct of counsel or misconduct of the jury, but chiefly because of instruction No. 17, and probably to some extent because of the manner in which special interrogatories were submitted to the jury. These involve purely legal questions which this court will review. We may say, however, in passing, that we have carefully examined the record with reference to charges of misconduct of counsel and jury, and we are convinced that the record fails to show anything with reference thereto which would justify the granting of a new trial. This then leaves us to determine whether or not the manner of submitting special interrogatories to the jury or the giving of instruction No. 17 constituted such error as would justify the granting of a new trial.

The record shows that at the close of the testimony and before the court gave its instructions and before the argument to the jury defendant's attorney, in open court, called the court's attention to certain special interrogatories which he desired to have submitted to the jury. They were then handed to the clerk and were by him filed in the cause. When the court instructed the jury, he did not make any mention of the special interrogatories. After the argument to the jury and immediately before it retired to deliberate on its verdict, the court informed it that he would send out to it four special interrogatories to be answered by it. This, it seems, was the first plaintiff's attorneys had heard of any special interrogatories. They then, in the presence of the jury, objected to the interrogatories or special findings because they were not submitted to the jury in time for or prior to argument. Nothing further seems to have been done or said in regard to these interrogatories, except they were sent to and answered by the jury. Respondent now contends that he had a right to argue these special interrogatories to the jury and thereby assist them in making correct answers, and that it was error to deprive him of that right. Section 341, Rem. Code 1915, provides:

'Any party may, when the evidence is closed, submit in distinct and concise propositions the conclusions of fact which he claims to be established, or the conclusions of law which he desires to be adjudged, or both. They may be written, and handed to the court, or, at the option of the court, oral, and entered in the judge's minutes.'

It would appear that attorneys for defendant did everything the statute required of them. We have no doubt that plaintiff's attorney had the right to argue these interrogatories to the jury, and, if the court had refused such permission, it would probably have been error. Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; Pittsburg, etc., v. Lightheiser, 168 Ind. 438, 78 N.E. 1033; Laffery v. Gypsum Co., 92 Kan. 475, 141 P. 241; Stacy v. Cook, 62 Kan. 50, 61 P. 399. However, the record fails to disclose any request by the plaintiff to be permitted to argue the interrogatories to the jury. Evidently the failure of the court to instruct the jury with reference to the interrogatories at the time of giving the general instructions was merely an inadvertence. We have no doubt, even after the general argument, that the court would have granted such a request had it been made, but the failure to make it, we think, deprives the plaintiff of the privilege of now claiming error on that account.

But there is another reason why there was no prejudicial error in this regard. The jury found a general verdict for the defendants, and the answers to the interrogatories are not inconsistent with, but, on the contrary, conform to, such verdict. The answers to special interrogatories did not add to or subtract from the general verdict. The parties are right where they would have been had there...