Loy v. Northern P. Ry. Co.

• Decision Date: 19 December 1913
• Parties: LOY v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

137 P. 446

77 Wash. 25

LOY v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

December 19, 1913

Department 2. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by Michael Loy against the Northern Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellants.

Forney & Ponder, of Chehalis, for respondent.

MAIN J.

The purpose of this action was to recover damages alleged to have been sustained by the plaintiff while being wrongfully ejected from a train of the defendant company. The cause was formerly before this court, and the decision is reported in 68 Wash. 33, 122 P. 372. The facts will not here be stated except in so far as may be necessary to an understanding of the points to be considered. The cause was tried before the court and a jury. A verdict was returned in favor of the plaintiff in the sum of $6,640.90. Thereafter a motion for new trial was made which was supported and opposed by affidavits. The motion was denied. Judgment was entered upon the verdict. The defendants have appealed.

The trial court submitted to the jury certain special interrogatories and refused to submit others. This ruling is complained of by the defendants as prejudicial. Error is also sought to be predicated upon the argument of plaintiff's counsel to the jury. It is claimed that this argument brought before the jury matters which the record did not justify, and that it was highly inflammatory and improper. The objectionable remarks were not taken down by the court reporter. They are sought to be shown by an affidavit by the attorney for the defendants in support of the motion for new trial. This affidavit is met by a counter affidavit on the part of counsel for the plaintiff. Both affidavits are embodied in the statement of facts. The court, however, does not certify as to the remarks actually made. The affidavits are in conflict.

It appears that the jury arrived at their verdict in the following manner: Eleven jurors voted favorably to the plaintiff, each specifying the amount that he considered the plaintiff should receive. W. S. Blanchard, the foreman, voted that the plaintiff was entitled to nothing. Thereupon the amounts were added together and divided by 11 the result being $6,640.92. Thereupon the foreman state 'All who are in favor of allowing the plaintiff the sum of $6,640.92 will please say 'Yes," or words to that effect, and all of the jurors except the foreman answered 'Yes.' The jury then returned into court and were asked by the court if they had agreed upon a verdict. The foreman answered that they had. The verdict was then handed to the clerk and by him read, and, when asked by the court if that was their verdict, 11 jurors answered that it was. The defendants contend that the verdict was arrived at by lot or chance and therefore is not legal.

The questions presented are: First, is the verdict sustained by the evidence; second, misconduct of counsel; third, did the trial court err either in refusing or in submitting interrogatories; fourth, did the jury arrive at their verdict by lot or chance; and, fifth, is the verdict excessive?

I. From the statement of facts it appears that the evidence on the part of the plaintiff and the defendants, respectively, is in conflict in many material particulars. If, however, there is substantial evidence to sustain the verdict, and the trial court upon motion has refused to set it aside, this court cannot grant a new trial because it may believe that the weight of the evidence was against the verdict. Warwick v. Hitchings, 50 Wash. 140, 96 P. 960; Bennett v. Seattle Elec. Co., 56 Wash. 407, 105 P. 825; Kincaid v. Walla Walla Valley Tr. Co., 57 Wash. 334, 106 P. 918, 135 Am. St. Rep. 982; Meador v. Northwestern Gas & Elec. Co., 55 Wash. 47, 103 P. 1107. In the case last cited it was said: 'The weight and sufficiency of evidence is for the consideration of the jury; and their verdict must be sustained in the appellate court, when supported by substantial evidence, even though the court should be of the opinion that the weight of the evidence is against the verdict.' We are unable to find that there was not substantial evidence which would support the verdict, and therefore, under the rule stated, the verdict cannot now be disturbed.

II. On the question of the misconduct of counsel, it appears that the objectionable remarks were made in the presence of the court during the trial and might have been preserved, either by the stenographer or upon request the court itself might have reduced them to writing. This, however, was not done. Upon motion for new trial the defendant's counsel by affidavit set forth his version of the objectionable remarks. The plaintiff's counsel answered denying, and setting forth their version of the same. The trial judge has included both affidavits in the statement of facts but does not certify as to which, if either, correctly contains the substance of the language used. The language having been used in the presence of the court, it should have been certified to by the court and made a part of the statement of facts. To permit such facts to be presented by affidavits gives rise to an unseemly contest between counsel upon matters that occurred in open court during the progress of the trial, and in the interest of orderly procedure should not be tolerated. The objectionable language not having been preserved in the statement of facts, it cannot here be reviewed.

In Maryland Casualty Company v. Seattle Electric Company, 134 P. 1097, it was said: 'It will be noted that some of the situations contemplated by the first three of the grounds for a new trial might arise upon matters occurring in open court during the progress of the trial and the facts would then appear as a part of the record. In such a case it is obvious that affidavits presenting such facts would be unnecessary and improper. Other situations contemplated by any one of these four subdivisions might arise out of matter not occurring in open court during the progress of the trial and hence not appearing in the record. In such a case evidence aliunde the record would be not only proper but necessary to any disclosure of the facts relied upon for a new trial.'

In Rayburn v. Central Iowa Ry. Co., 74 Iowa, 637, 35 N.W. 606, the court, speaking upon this question, used this language: 'It is urged that the court below erred in not setting aside the verdict on account of the misconduct of plaintiff's c...