Funk v. Horrocks

• Decision Date: 11 January 1918
• Docket Number: 14115.
• Court: Washington Supreme Court
• Parties: FUNK v. HORROCKS.

169 P. 805

99 Wash. 397

FUNK v. HORROCKS.

No. 14115.

Supreme Court of Washington

January 11, 1918

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Fred Funk against J. I. Horrocks. Judgment for plaintiff and defendant appeals. Affirmed.

Robert F. Booth and A. J. Falknor, both of Seattle, for appellant.

HOLCOMB J.

This appeal is from an order granting respondent a new trial after the verdict of a jury against him and in favor of appellant upon conflicting evidence, the grounds of the motion being that the evidence was insufficient to justify the verdict, and was against the law, error in law occurring at the trial and excepted to at the time, and that the verdict was contrary to the law and the evidence. No appearance or argument on the part of respondent is made here upon the appeal. The action of respondent was for damages for an alleged assault and battery. Appellant denied the allegations of the complaint, and further pleaded justification, the use of lawful force and great provocation.

Without detailing the nature of the affair or the cause leading up to it, looking to the cold printed record, if we were sitting as jurors, we think we would decide that it discloses by an overwhelming weight of evidence great provocation, justification, and lawful force by appellant.

We are unaware of the precise ground considered by the trial judge as requiring a new trial. We have examined the instructions, and they seem to be correct in form and propriety and strictly applicable to the issues and facts in the case. No error occurring at the trial and excepted to at the time is pointed out or apparent. The order must therefore have been based upon insufficiency of the evidence to justify the verdict. Upon this, while we have not had the advantage of seeing the witnesses and hearing them testify and of judging of their credibility and virtue, upon the record thereof and a long-distance consideration of the conduct of the respondent on the day in question and his general offensive and ruffianly disposition and demeanor as disclosed by the testimony, we should be very decidedly inclined to disagree with the view that the evidence was in any respect insufficient, but would, on the contrary, be emphatically of the opinion that it was overwhelmingly sufficient to justify the verdict.

However there was a decided conflict in the evidence upon the chief issues. Appellant recognizes the rule that, with an order granting a new trial, where the motion is based upon several grounds, the court does not specify the exact grounds upon which it is granted, and it does not appear to have been granted solely upon questions of law, the appellate court will not interfere unless there has been a clear abuse of discretion. Notwithstanding that acknowledged rule, appellant contends upon the record here that the granting of a new trial was in legal effect...