Davis v. The Central States Fire Insurance Company

• Citation: 245 P. 1062,121 Kan. 69
• Decision Date: 08 May 1926
• Docket Number: 26,662
• Parties: C. O. DAVIS, Appellant, v. THE CENTRAL STATES FIRE INSURANCE COMPANY, Appellee
• Court: Kansas Supreme Court

245 P. 1062

121 Kan. 69

C. O. DAVIS, Appellant, v. THE CENTRAL STATES FIRE INSURANCE COMPANY, Appellee

No. 26,662

Supreme Court of Kansas

May 8, 1926

Decided January, 1926.

Appeal from Sedgwick district court, division No. 1; THOMAS E ELCOCK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEW TRIAL--Grounds--Verdict Inconsistent With Evidence--Concurrent Verdicts. The rule that it is the duty of the trial judge to set aside a verdict unless he can approve it applies even where a former verdict of the same kind has already been set aside for that reason.

Chester I. Long, J. D. Houston, Austin M. Cowan, Claude I. Depew, James G. Norton, W. E. Stanley and W. B. Harms, all of Wichita, for the appellant.

S. A. Buckland, of Wichita, for the appellee.

OPINION

MASON, J.:

A verdict for the plaintiff in an action for the recovery of money was set aside by the trial judge because in his opinion it was contrary to the evidence. A new trial was had, and again a like verdict was set aside for the same reason. The plaintiff appeals on the ground that where there is some substantial evidence to support a verdict but the trial court sets it aside because of a belief that a wrong decision has been made, and upon a new trial another verdict to the same effect is returned, the court has no authority to set it aside--that its power in this respect has been exhausted. We cannot approve this contention.

The fourth of the statutory grounds upon which a new trial may be granted is "that the verdict . . . is in whole or in part contrary to the evidence." (R. S. 60-3001.) This does not mean merely that a verdict may be set aside if there is no evidence tending to support it--a matter involving a pure question of law, subject to review on appeal--but that a new trial may, and indeed must, be granted unless the judge is able to give his approval to the finding of the jury as a matter of fact. Nothing in the statute either expressly or by fair implication justifies confining the application of this provision to a single trial or verdict, or removing from its operation a verdict which is like one to which it has already been applied.

"It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error. He has no right 'to stand out of the way' and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts." (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 P. 108.)

That is the settled law of this state, and there is nothing novel in it.

"'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with...