James v. Robeck, 363--41284--1

• Decision Date: 27 July 1970
• Docket Number: No. 363--41284--1,363--41284--1
• Citation: 3 Wn.App. 108,472 P.2d 635
• Court: Washington Court of Appeals
• Parties: Embert JAMES, Appellant, v. Ben J. ROBECK and Jane Doe Robeck, his wife, Respondents.

Page 108

3 Wn.App. 108

472 P.2d 635

Embert JAMES, Appellant, v. Ben J. ROBECK and Jane Doe Robeck, his wife, Respondents.

No. 363--41284--1.

Court of Appeals of Washington, Division 1, Panel One.

July 27, 1970.

Rehearing Denied Nov. 23, 1970.

Paul J. Fisher, Seattle, for appellant.

Anderson, Hunter, Carlson & Dewell, Julian C. Dewell, Everett, for respondents.

FARRIS, Judge.

Embert James was injured when his automobile was struck by another driven by the defendant, Ben Robeck. In the accident, James suffered injuries to his lower back and some facial lacerations. He has a congential lower back condition. Liability for the accident is not in issue on appeal.

The jury returned a verdict of $17,000. The trial judge granted defendants' motion for a new trial Unless the plaintiff agreed to a reduction to $7,500. The plaintiff has appealed.

The trial judge gave the following reasons for his action:

1. Based on the evidence in this case and viewing all of the evidence in the light most favorable to plaintiff, the court finds that the verdict was so excessive as to shock the conscience of the court, lead the court to believe that substantial justice was not done, lead the court to the conclusion that the Judgment was based on passion and prejudice and was not supported by the evidence. In connection with the foregoing, the court has considered the following factors:

a. There was no evidence of or instruction on permanent disability or permanent injury.

b. There was no substantial evidence of or instruction on loss of present earnings or loss of future earning capacity; and

c. Viewing all of the evidence in the light most favorable to plaintiff, particularly that of the various physicians who testified, the injury and consequences thereof do not support the award and indicate that it was based on something other than the evidence.

2. Together with the foregoing, as indicating a basis for the erroneous jury verdict, and as a basis for indicating passion and prejudice, together with the fact that it supports a separate ground for granting a new trial, was the conduct of plaintiff's counsel in:

a. Continually referring to plaintiff's wage loss, directly and by inference, in closing argument and in stating that counsel, in the presence of the jury, could not understand the court's decision but he would abide by it; and

b. In reference to welfare payments and the possibility of surgery, which matters were found inadmissible by the court.

Based on the foregoing, and the court's appraisal of the impact of such factors on the demeanor of the jury by the court's visual observances, * * * (the defendant was granted a new trial.)

A motion for new trial granted upon the inadequacy or excessiveness of the jury verdict must be accompanied by specific reasons as provided in Civil Rule for Superior Court 59(a)(f) RCW Vol. 0. We find that this requirement was met. The reasons stated by the trial court were definite and specific enough to enable the court on appeal to review the record to determine whether the incident, occurrences or acts referred to by the trial court support his conclusion that a jury, fairly selected according to law, was lead to error by those incidents, occurrences or acts and further that remedial action was timely requested by the party aggrieved or that remedial action would have been futile. See Knecht v. Marzano, 65 Wash.2d 290, 396 P.2d 782 (1964).

Although RCW 4.76.030 ¹ does not expressly provide for an appeal by a nonconsenting party adversly affected by the order granting the alternative motion for a new trial, a review of such an order is not...