Johnson v. Marshall Field & Co.
| Decision Date | 31 December 1969 |
| Docket Number | No. 15--40015--1,15--40015--1 |
| Citation | 1 Wn.App. 655,463 P.2d 645 |
| Court | Washington Court of Appeals |
| Parties | Julius G. JOHNSON and Willabelle Johnson, husband and wife, Appellants, v. MARSHALL FIELD & COMPANY d/b/a Frederick & Nelson, a Washington corporation, Respondent, and Otis Elevator Company, a corporation doing business in the State of Washington, Defendant. |
Ralph B. Potts and Sten H. Dagg, Seattle, for appellants.
William R. Lanthorn and Leo A. Anderson, Seattle, for respondent.
The appellant Willabelle Johnson fell while on a moving escalator in respondent's downtown Seattle store. A following descending step squeezed down upon her head and nearly tore off her scalp.
After the escalator was stopped, she was left unaided and unassisted for about 15 minutes. She was then taken to the store infirmary where she asked the store nurse to call an ambulance or a doctor. After a delay of about 30 minutes, an ambulance was called. It arrived one hour after the accident.
On the basis of these incidents, Mrs. Johnson brought an action against respondent. Her first claim sought compensation for the injuries suffered in the accident on a negligence theory. The second claim, with which we are essentially concerned here, sought recovery for the additional damages proximately caused by the store's alleged lack of reasonable care after the accident.
The jury returned a defense verdict on the first cause, but, on the second, awarded appellants $20,000. The trial judge ordered a new trial unless appellants accepted a $17,500 reduction. They refused and appeal.
This rather bizarre accident brings to us a troublesome problem which in recent years has plagued the Washington bench and bar--the power of the trial judge to order a new trial subject to a reduction in verdict. Fortunately, it is a problem which has prompted much thought and concern. 1
Prior to 1951, there was no effective appellate review of an order granting a new trial when no reason therefor was stated, or when the reason was a failure of substantial justice. Coppo v. Van Wieringen, 36 Wash.2d 120, 217 P.2d 294 (1950), changed this to some extent. The case disapproved the limitation upon appellate review when the grounds for the trial court's action were entirely within the record or could be made a part of the record.
In 1954, the Supreme Court amended the predecessor of RPPP 59.04W. See 44 Wash.2d XVIII. This rule, which set out grounds for new trial, contained the instruction:
In all cases wherein the trial court grants a motion for a new trial, it shall, in the order granting the motion, give definite reasons of law and facts for so doing.
This sentence caused the superior court judges no small amount of concern. As pointed out by Professor Trautman, in the 10 years following the enactment of the rule, the Supreme Court reversed nearly all orders granting new trial which it reviewed. 2
The results in these cases no doubt prompted King County Superior Court Judge Henry Clay Agnew to state:
'* * * a trial judge no longer has the right to grant a new trial because he believes substantial justice has not been done because the verdict is overwhelmingly contrary to the weight of the evidence.'
Sullivan v. Watson, 60 Wash.2d 759, 765 n.2, 375 P.2d 501, 505 (1962).
Justice Hill, in Sullivan, attempted to dispel this belief of the trial bench. He indicated:
In short, it is our hope that trial judges who believe, for whatever reason, that substantial justice has not been done will grant new trials, giving their reasons therefor in some detail. Should this court then reverse any trial judge, and the end result be a denial of substantial justice, the onus will be upon us and not on the trial judge.
60 Wash.2d at 766 n.2, 375 P.2d at 506.
These remarks, however conciliatory and reassuring, did not provide a panacea. See Trautman, Serving Substantial Justice--A Dilemma, Supra n.1. The Supreme Court then took additional remedial steps. CR 59 was adopted May 5, 1967, and became effective July 1, 1967, prior to the written order in this case. Subdivision (f) provides:
Statement of Reasons. In all cases where the trial court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or upon facts and circumstances outside the record which cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.
Judge Birdseye's written order recites, Inter alia, as follows:
This order is predicated upon:
Inherent power of court to provide relief from excessive damages.
The order also provided that pursuant to the Washington Rules of Pleading, Practice and Procedure 59.04W, the court's oral opinion of May 26, 1967, granting the motion for new trial, and its oral opinion of September 8, 1967, on a motion for reconsideration, were incorporated by reference to supply additional reasons of law and fact in support of the order for new trial. It should be noted that the trial judge cited rule 59.04W as controlling. At the time of the order, this rule had been repealed and superseded by CR 59(f). Thus, while the order of October 24, 1967, does not specifically state whether it is based upon the record or upon facts and circumstances outside the record as required by CR 59(f), it is apparent, from the order and the two oral opinions included therein by reference, that the order is based upon matters in the record, and this court shall so consider it. Johnson v. Howard, 45 Wash.2d 433, 275 P.2d 736 (1954).
The first oral opinion on May 26, 1967, stated in part:
I am tempted to say that the amount of the award indicates passion and prejudice. * * *
I think I can honestly say that I was shocked and I am shocked by the amount of the award. * * * It is, I think, a gross miscarriage of justice and I should, if I have the power to do so and I believe I have, correct it.
The second oral opinion, given September 8, 1967, likewise said:
Now, it would be difficult for me to say and perhaps impossible--I must be fair to Mrs. Johnson--probably impossible for me to say that twenty thousand dollars is so excessive as to unmistakably indicate passion and prejudice. * * *
* * * I think that in fairness I must say that there was nothing in the trial or argument to the jury that was in any way subject to criticism or that was designed to encourage passion or prejudice.
It is to this rather confused record--was there or was there not passion and prejudice?--that appellants assign error. Appellants' first two assignments question the propriety of granting a new trial on the grounds of passion or prejudice. There is merit to this assignment. While the trial court, in its order, recited the existence of passion and prejudice from the size of the verdict, the statements in the court's oral opinions, which were incorporated by reference, clearly say that there was no passion or prejudice resulting from anything that occurred during the course of the trial or from the size of the verdict.
Further, RCW 4.76.030 3 governs the review of this order. As stated in Ma v. Russell, 71 Wash.2d 657, 659, 430 P.2d 518 (1967):
Under its provisions (referring to RCW 4.76.030), this court does not confine itself to a consideration of whether or not the trial court abused its discretion in granting the alternative motion for a new trial, but reviews the record de novo, bearing in mind the presumption that the verdict was correct. Workman v. Marshall, 68 Wash.2d 578, 414 P.2d 625 (1966).
A careful review of the record convinces us that there was neither passion nor prejudice present at any part of the trial. Thus, we are compelled to hold that the court erred in granting a new trial on this ground.
Assignments of error 3 and 4 challenge the additional basis recited in the order for a new trial--failure of substantial justice because of an excessive verdict not justified by the evidence.
Our Supreme Court, since the 1905 decision of Clark v. Great Northern Ry. Co., 37 Wash. 537, 79 P. 1108 (1905), has recognized the inherent power of the trial court to grant a new trial on the basis of the verdict being against the weight of evidence and substantial justice not being done. See Brammer v. Lappenbusch, 176 Wash. 625, 30 P.2d 947 (1934); Snyder v. General Electric Co., 47 Wash.2d 60, 287 P.2d 108 (1955); Sullivan v. Watson, 60 Wash.2d 759, 375 P.2d 501 (1962); CR 59.
In defining the obligation of the trial judge to grant a new trial, the court, in Olpinski v. Clement, 73 Wash.2d 944, 951, 442 P.2d 260, 265 (1968), stated:
The trial court has the duty to see that justice prevails. He has the power in the exercise of his discretion to grant a new trial where substantial justice has not been done, but, to facilitate appellate review, he must state his reasons.
Here, aside from the erroneous claim of passion and prejudice, the trial judge exercised his discretion and stated his reasons:
There was no testimony by any medical witness that the care and attention subsequent to the accident in any way contributed to the...
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Wooldridge v. Woolett
...864, 870-71, 490 P.2d 878 (1971); Cooperstein v. Van Nattler, 26 Wash.App. 91, 98, 611 P.2d 1332 (1980); Johnson v. Marshall Field & Co., 1 Wash.App. 655, 661, 463 P.2d 645 (1969). The granting of a new trial on grounds of inadequate damages is peculiarly within the discretion of the trial ......
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