Grow v. Wolcott

• Decision Date: 09 November 1963
• Docket Number: No. 52,52
• Citation: 123 Vt. 490,194 A.2d 403
• Court: Vermont Supreme Court
• Parties: Julian F. GROW and Ruth F. Grow v. Theron WOLCOTT.

Page 403

194 A.2d 403

123 Vt. 490

Julian F. GROW and Ruth F. Grow v. Theron WOLCOTT.

No. 52.

Supreme Court of Vermont.

Nov. 9, 1963.

Underwood & Lynch, Middlebury, for plaintiffs.

Conley & Foote, Middlebury, for defendant.

Before HULBURD, C. J.., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

The trial court granted the plaintiffs' motion to set aside the verdict in favor of the defendant and ordered a new trial. At the request of the defendant the court certified that ruling here for review. Since an order for a new trial is not a final order, this procedure was necessary to obtain review in this Court.

Aside from the obligation to set aside a verdict insupportable as a matter of law, a trial court has the right, when circumstances justify, to set aside a verdict and order a new trial as a matter of discretion. Because of its nature, this is a right to be sparingly used in extraordinary circumstances. But, when asked to exercise its discretion in an appropriate situation, the trial court is bound to do so, no matter whether, in so doing, it determines to rule favorably on the requested action or not. In such a situation, where a party has called upon the court for a discretionary ruling, it is improper for the court to refuse to utilize its right to decide the question as a matter of discretion. Purporting to be bound to rule as a matter of law will not satisfy the moving party's claim on the court's discretion. Paul v. Drown, 108 Vt. 458, 464, 189 A. 144, 109 A.L.R. 1085.

We speak of it as a right, because it is discretionary. Discretion involves choice the right to either act or not act. If the circumstances make acting, or not acting, obligatory, there is no room for discretion and the result is described as being required 'as a matter of law.' The decision of the court in such a case is founded on duty; whereas, in a discretionary matter, it is founded on the privilege or right of the court to choose between affirming and denying, acting and not acting, according to its judgment.

This discussion of matters perhaps quite self-evident is intended to underscore another, and perhaps equally plain, logical consequence of the right to make a discretionary decision. That is that an appellate court, in reviewing a ruling properly made as a matter of discretion, must affirm the decision of the trial court, if the action that court took was one of the discretionary courses open to it. To say otherwise would be to deny discretion to the trial court.

In this case the trial court was moved to act by the plaintiffs who asked that the verdict be set aside and a new trial granted. Their motion sought this relief both as a matter of law and as a matter of discretion. The trial court granted their request for a new trial without setting out the basis for the ruling. The plaintiffs appear to accept the claim of the defendant that there was no basis for granting the motion as a matter of law, because they state that their argument in support of the ruling is confined to the discretionary aspect. This is an inevitable consequence of the presence of evidence in the case controverting the plaintiffs' claim and supporting the defendant. A motion to set aside a verdict as being without evidentiary support requires a ruling as a matter of law, and fails in the presence of conflicting evidence sufficient to support a jury finding in favor of the prevailing party. Skoll v. Cushman, 111 Vt. 160, 165, 13 A.2d 180. We therefore approach the ruling in this case assuming it to be made as a matter of discretion.

A motion to set aside a verdict and grant a new trial places a heavy responsibility on the trial court. The action having been instituted and the participants assembled in order that a jury may resolve the factual issues, a court would be understandably hesitant to set at naught the whole proceeding and order it all done over again. Indeed, it is often said to a jury having difficulty agreeing, that they should have in mind that there is no assurance that a second proceeding, with a second jury, would have the matter presented in a manner any easier to resolve. This same consideration applies to a court about to set aside, as a matter of discretion, the verdict of a jury after a full trial. The right to set aside a verdict is based, ultimately, on the proposition that an injustice would result from permitting that verdict to stand. Russell v. Pilger, 113 Vt. 537, 551, 37 A.2d 403.

The circumstance that the trial court's view of the facts might have inclined it to come to a conclusion contrary to that of the jury does not give it the right to disturb the verdict. Verdicts are not lightly to be disregarded, for it is the proper province of the jury to settle questions of fact. Dashnow v. Myers, 121 Vt. 273, 282, 155 A.2d 859.

When the discretionary grounds of the motion to set aside the verdict depend upon the evidence in the case, it is the duty of the trial court to consider that evidence in the light most favorable to the verdict. When the evidence is so viewed, if the judgment of the trial court tells it that the verdict is clearly wrong and unjust because the jury have disregarded the reasonable and substantial evidence, or found against it, through passion, prejudice or some misconstruction of the matter, that judgment requires that the court's discretion be exercised to set aside that verdict. Russell v. Pilger, supra, 113 Vt. 537, 550, 37 A.2d 403.

On appeal, such rulings are tested by different standards. See Russell v. Pilger, supra, 113 Vt. at pages 551-553, 37 A.2d at pages 411-413. When this Court is called upon to review the trial court's disposition of a motion to set aside the verdict and grant a new trial, we are bound to accord to the ruling all possible presumptive support, very like that the trial court should give to the verdict of the jury. Towle v. St. Albans Publishing Co., 122 Vt. 134, 142, 165 A.2d 363. The burden of showing that the court below has gone astray is on the party attacking the ruling.

Even though there is evidence in the case preponderating in favor of the verdict which was set aside, the reviewing court cannot disturb the ruling unless a verdict opposite to the one set aside would have no reasonable evidentiary basis. Belock v. State Mutual Fire Insurance Co., 106 Vt. 435, 443, 175 A. 19. In other words, if the state of the evidence is such that the trial court had no right to act as a matter of discretion, then this Court reviews the action as one undertaken as a matter of law. Then, if the action cannot stand as a matter of law, it must be reversed here.

This is what is meant when it is said that this Court has no discretion in reviewing discretionary rulings of the lower court. See Towle v. St. Albans Publishing Co., supra, 122 Vt. 134, 142, 165 A.2d 363; O'Brien v. Dewey, 120 Vt. 340, 348, 143 A.2d 130. We are bound to pass on these rulings as a matter of law, without the privilege of choice based on a weighing of the evidence which is the discretionary right of the trial court. We can intervene only when the bounds of that right are overreached and abused. This occurs when the lower court purports to rule as a matter of discretion in an area where the situation did not leave it free to do so, or else when the lower court was demonstrably inspired to act by improper motives or untenable reasons. O'Brien v. Dewey, 120 Vt. 340, 348, 143 A.2d 130.

It must also be noted that there is a difference, from the point of view of the reviewing court, between a ruling refusing to set aside a verdict, and one granting a motion to set aside the verdict and grant a new trial. It is the duty of this Court to determine whether or not the lower court has viewed the evidence in the light most favorable to the verdict. A refusal to set a verdict aside assures that the evidence has been so evaluated. But where the verdict has been set aside, there is no such automatic demonstration that the evidence has been viewed in the aspect most favorable to the verdict.

There is also a significant difference between setting aside a verdict in favor of one who is obliged to satisfy the burden of proof (usually the plaintiff), and one who is not (usually the defendant). This requirement tends to reinforce a verdict in favor of a defendant, since he properly recovers if the plaintiff does not make out his case. A trial court presuming to set aside a verdict in favor of a defendant must be sure it gives adequate consideration to the plaintiff's evidentiary responsibility. Therefore, even though the ultimate ruling is a discretionary one, there is a threshold test which must be satisfied as a matter of law. At the least, when a verdict in favor of a defendant not having the burden of proof is set aside, there must be evidence in the case sufficient to satisfy the burden of proof, if viewed in the light most favorable to the plaintiff. Without this, there would be no reasonable evidentiary basis as required by Belock v. State Mutual Fire Insurance Co., supra, 106 Vt. 435, 443, 175 A. 19. This test applies as a matter of law, as in the case of a defendant's motion for a directed verdict. See Rice's Adm'r. v. Press, 117 Vt. 442, 448, 94 A.2d 397.

It is in the context of all this that the action of the trial court in rejecting the verdict must be reviewed for reasonableness. This Court can interfere with a discretionary ruling, made in good faith and based on the weight of the evidence, only if the result reached is clearly unreasonable. Belock v. State Mutual Fire Insurance Co., supra, 106 Vt. 435, 443, 175 A. 19.

In this case the parties are disputing about the reconstruction of a cellar wall which failed as originally built. The plaintiffs, who presently own the house, and the defendant, the contractor who built and sold the house, came to an agreement whereby the defendant would rebuild the wall, which he did. It again failed and the plaintiffs hired another contractor, who...