Henry v. Larsen

• Decision Date: 15 December 1943
• Docket Number: 29059.
• Citation: 143 P.2d 841,19 Wn.2d 690
• Court: Washington Supreme Court
• Parties: HENRY et al. v. LARSEN et al.

143 P.2d 841

19 Wn.2d 690

HENRY et al. v. LARSEN et al.

No. 29059.

Supreme Court of Washington

December 15, 1943

Action by Violet Henry and others against A. O. Larsen and wife and the Union Pacific Stages, Inc., for injuries sustained by plaintiff as result of automobile collision. From an order granting a new trial, following a verdict in favor of defendants, the defendants severally appeal.

Affirmed.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Wernette & Crowley, of Spokane, Roy F. Shields, of Portland, Or., and Hamblen, Gilbert & Brooke, of Spokane, for

Robertson & Smith, of Spokane, for respondents.

MILLARD, Justice.

About 11:00 p. m., November 11, 1940, plaintiffs, while riding as guest passengers in an automobile owned and operated by Florence Peterson, sustained personal injuries as a result of the collision two miles north of Rosalia of the Peterson automobile with a bus of defendant Union Pacific Stages Inc., and an automobile owned and operated by defendants Larsen. To recover for the injuries sustained this action was instituted against the stage company and the Larsens. Trial of the cause to the court sitting with a jury resulted in verdict in favor of the defendants. Plaintiffs' motion for new trial on the ground of insufficiency of the evidence to justify the verdict and on five other statutory (Rem.Rev.Stat. § 399) grounds was granted. Defendant corporation and defendants Larsen, who appeared separately severally appealed from the order granting a new trial.

All of the appellants join in the assignment that the trial court erred in granting the new trial on a nondiscretionary ground that is, the court based its order in granting a new trial solely on the ground that the undisputed evidence disclosed that the jury did not follow the instructions of the court therefore the motion was granted not upon a ground which was discretionary with the court but upon a question of law only. An additional ground for reversal as to it, urged by appellant corporation, is the absence of substantial proof of its negligence in any way operating as a proximate cause of respondents' injuries.

The motion for new trial was based upon several grounds, one of which was insufficiency of the evidence. The material part of the order granting the new trial reads as follows:

'* * * said motion having been fully argued and at the conclusion thereof the court having rendered his oral opinion;

'Now, therefore, it is hereby ordered that said motion be and the same hereby is granted on grounds set forth in said opinion, to which ruling the said defendants, and each of them, except.'

The foregoing order, other than its reference to the trial court's oral opinion, is in general terms. Appellants quote excerpts from the court's oral opinion (which is eighteen pages in length) to sustain their position that the order granting a new trial was based solely on the ground that the undisputed evidence showed that the jury did not follow the instructions of the court.

The formal order granting the motion for new trial does not specify any such ground. In presenting the order for the court's signature, one of counsel for appellants requested that the order recite the reason for the granting of the motion for new trial. The court stated in the oral opinion: 'You may make an order that the motion for a new trial is granted in this case, and I think my reasons sufficiently appear in the oral opinion here. It is just one of those difficult things, and I tried to cover it.'

Where the order granting the motion for a new trial is general and does not specify the ground or grounds upon which it was based, our inquiry is limited to the determination of the question whether the evidence was sufficient to take the case to the jury. Hobba v. Postal Telegraph Co., Wash., 141 P.2d 648. Unless we can say in such case that the verdict of the jury was, as a matter of law, the only verdict that could be rendered, the order granting a new trial must be affirmed. See Sylvester v. Olson, 63 Wash. 285, 115 P. 175; Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; Sturtevant Co. v. Fidelity & Deposit Co., 92 Wash. 52, 158 P. 740, L.R.A.1917C, 630; Ahrens v. Anderson, 186 Wash. 182, 57 P.2d 410; New York Life Insurance Co. v. Newport, 1 Wash.2d 511, 96 P.2d 449; and State v. Elliott, 6 Wash.2d 393, 107 P.2d 927.

When a motion for new trial is made upon a number of grounds and the order does not disclose upon which of the grounds the ruling is based, it will not be reviewed if it was within the sound discretion of the court to grant the motion upon any of the grounds assigned. The legal sufficiency of any specific reason, either oral or written, assigned for granting or denying a motion for new trial will not be reviewed unless it is incorporated into the formal order and appears to be the exclusive ground upon which the ruling is based.

In Morehouse v. Everett, 136 Wash. 112, 238 P. 897, we held that where the formal order granting a new trial does not affirmatively show that it was based only on one specific ground, it cannot be claimed on appeal that other grounds assigned in the motion were not considered by the court; notwithstanding the court had, on the day Before , made an informal decision that the motion would be granted on the ground of an error in an instruction. We said:

'In the early leading case of Rotting v. Cleman, 12 Wash. 615, 41 P. 907, Judge Anders, speaking for this court, said:

"Where the record shows that the motion for a new trial was made on several grounds, but does not show upon which of them the ruling of the court was based, the order will not be reversed, if it was within the sound discretion of the court to make it upon any of the grounds stated.'

'This announcement of the law has been adhered to by this court in all of its subsequent decisions touching the question which we here deem to be controlling of the disposition of this appeal. Griggs v. MacLean, 33 Wash. 244, 74 P. 360; Holloway v. Savage, 68 Wash. 614, 123 P. 1021; Piper v. Piper, 129 Wash. 72, 224 P. 576; Tasker v. Centralia Memorial Ass'n, 129 Wash. 699, 225 P. 1119. There may have been some little confusion touching our views, growing out of our decision in the peculiarly circumstanced case of Crowl v. West Coast Steel Co. 109 Wash. 426, 186 P. 866, on the question of just when the record of a given case shows or fails to show the granting or refusing of a new trial exclusively upon some discretionary or purely legal ground; but we think it plain from our later decisions above noted, which are in harmony with those rendered prior to Crowl v. West Coast Steel Co., supra, that any such limitation and exclusiveness of the court's ground for the granting or denial of a motion for new trial must appear in the formal final order disposing of the motion, Before this court can so view the trial court's disposition of the motion.

'The informal ruling or opinion of the trial judge did not finally award a new trial, nor does it affirmatively show but that the trial court considered some of the other assigned grounds as well founded; however, it is plain that the question of whether or not respondent should be awarded a new trial remained in the breast of the court until the following day when the final order awarding a new trial was entered. We are thus unable to determine but that the trial court awarded a new trial upon the ground of the verdict being against the

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