Macdonald v. Ogan

• Decision Date: 06 July 1940
• Docket Number: 6762
• Citation: 61 Idaho 553,104 P.2d 1106
• Parties: RONALD J. MACDONALD, Respondent, v. CHARLES H. OGAN and POTLATCH FORESTS, INC., a Corporation, Appellants
• Court: Idaho Supreme Court

104 P.2d 1106

61 Idaho 553

RONALD J. MACDONALD, Respondent, v. CHARLES H. OGAN and POTLATCH FORESTS, INC., a Corporation, Appellants

No. 6762

Supreme Court of Idaho

July 6, 1940

NEW TRIAL-CONFLICT OF EVIDENCE-APPEAL-TRIAL-PRESUMPTIONS-INSTRUCTIONS.

1. The rule that where there is a substantial conflict in the evidence, verdict of a jury or findings of the court will not be set aside on appeal, does not apply to a trial court on an application for a new trial.

2. On appeal from an order granting a motion for a new trial, it is only necessary for reviewing court to ascertain whether order can be sustained on any ground named in motion and assignments and specifications of errors, but on an appeal from an order denying motion for new trial, reviewing court must examine all assignments and determine whether there is merit in any of them.

3. Granting of a new trial for insufficiency of the evidence is not a declaration that no conflict in evidence exists.

4. Trial courts should specify grounds upon which a new trial is granted.

5. In action to recover for injuries suffered when county deputy sheriff who was also employed by defendant lumber company as a watchman fired tear gas gun at plaintiff, trial court did not abuse its discretion in granting plaintiff's motion for a new trial after verdict and judgment for defendants which motion contained specifications of grounds for new trial, based on insufficency of the evidence and evidence conflicted.

6. In action to recover for injuries suffered when a defendant who was a county deputy sheriff and also a watchman employed by defendant lumber company fired a tear gas gun at plaintiff instruction that acts of defendant deputy sheriff at time of alleged injury to plaintiff were presumed to have been done in his capacity as a public officer, and burden was on plaintiff to prove by a preponderance of evidence that such defendant was acting in performance of his duties to lumber company, was error where burden of proof already rested on plaintiff.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. A. L. Morgan, Judge.

Action for damages. Verdict and judgment for defendants. From an order granting a new trial, defendants appeal. Affirmed.

Order affirmed. Costs awarded to respondent.

Elam &amp Burke, Elder & Elder and Robert W. Peterson, for Appellants.

The discretion of the trial judge in granting or refusing a new trial should be a legal and not an arbitrary discretion, and should be exercised in conformity with the spirit of the law, and in such manner as will subserve rather than impede the ends of justice. (Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908; In re Randall's Estate, 60 Idaho 419, 93 P.2d 1.)

Abe Goff, for Respondent.

Court's action granting new trial, if sustainable on any one ground, will not be disturbed on appeal. (Turner v. First Nat. Bank, 42 Idaho 597, 248 P. 14; Tidd v. Northern P. Ry. Co., 46 Idaho 652, 270 P. 138; Egbert v. Twin Falls Canal Co., 52 Idaho 39, 11 P.2d 360; Riggs v. Smith, 52 Idaho 43, 11 P.2d 358.)

Where trial court is of opinion that verdict is not in accord with law or justice, he may grant a new trial and his action will not be disturbed. (Buster v. Fletcher, 22 Idaho 172, 125 P. 226; Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410.)

It was error to instruct the jury as to a presumption of law as set forth in Instruction No. 4A. (McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175; Swoboda v. Nowak, 213 Mo.App. 452, 255 S.W. 1079; Alpine Forwarding Co. v. Pennsylvania R. Co., 60 F.2d 734; Bailey v. Bailey, (Mo.) 11 S.W.2d 1026.)

AILSHIE, C. J. Holden, J., concurs. GIVENS, J., Budge, J., concurring in part.

OPINION

AILSHIE, C. J.

--Potlatch is a village in Latah county of about 1,500 population. It is unincorporated and unorganized as a municipality. It is known as a "company town." Appellant, Potlatch Forests, Inc., which we will hereinafter designate as the Company, owns all the land on which the village is situated and, with a very few exceptions, all the buildings. These buildings are leased to the people (most of whom are company employees) for residences and business houses and the like. The company employs watchmen and pays their salaries; and it appears that Ogan, who is a party to this action, had been, for about sixteen years employed by the Company as a watchman, and for approximately fourteen years held appointment as a deputy sheriff of the county. The appointment was secured on the recommendation of the Company, and the Company furnished his official bond. For all practical purposes, the Company appears to have performed the ordinary acts and duties that are required and expected of a village municipality.

Ogan's shift as watchman was from 7:30 P. M. to 5:00 A. M.; he carried a revolver, a "38-special" tear gas gun and a flashlight. While on his rounds the night of December 14, 1937, he came upon respondent and a third person scuffling and fighting in a confectionery store and on the street; several blows were struck between the parties. After repeated warnings and orders, to cease fighting and disturbing the peace, Ogan fired the tear gas gun, thereby inflicting serious injury to respondent's right eye and causing the loss of the sight thereof. The testimony disclosed that Ogan had had the tear gas gun in his possession for "about eight or ten years" but had never discharged it prior to this night; that he used the gas gun instead of the pistol because he "didn't want to kill the man." Ogan testified that, when he tried to separate respondent and the other party, they were standing up but "practically the same instant" the gun was fired, the third party hit respondent in the face; that,--"they weren't on the ground, they were low down." Respondent testified that he "never hit the ground." The boys had been drinking beer but denied being intoxicated at the time.

An action for damages was brought by respondent against appellants for the sum of $ 28,958. After a jury trial, verdict was returned in favor of defendants. On motion of plaintiff, a new trial was granted, from which order this appeal is taken.

The only question to be determined in this case is whether or not the trial judge abused his discretion in granting a new trial. The motion for a new trial was made on various grounds,--insufficiency of evidence to justify a verdict, an erroneous instruction, and misconduct of the jury in failing to follow the instructions of the court.

It should be remembered that, in passing upon a motion for a new trial, the appellate court applies a different rule to the consideration of an order granting a new trial from what it applies to the denial of a new trial. This difference is predicated on the grounds that, where a new trial is granted, both parties are put back in the status in which they found themselves on the original trial; and each party has his chance to present the case anew to the court and jury. Whereas, an order denying a motion for a new trial terminates the case and denies the losing party any chance of resubmitting his case or having it again heard by the court and jury. So it has been held by this court that, "where there is a substantial conflict in the evidence the verdict of a jury or findings of the court will not be set aside on appeal, does not apply to a trial court on an application for a new trial." (Jones v. Campbell, 11 Idaho 752, 755, 84 P. 510.)

In Buckle v. McConaghy, 12 Idaho 733, 737, 88 P. 100, this court said:

"Since this is an appeal from the order granting the motion, it is only necessary for us to ascertain whether or not the order can be sustained on any ground named in the motion and assignments and specifications of errors. It would be otherwise, if this were an appeal from an order denying the motion. In that event it would become necessary for us to examine all the assignments and determine whether there was merit in any of them."

And in Tidd v. Northern P. Ry. Co., 46 Idaho 652, 656, 270 P. 138, the court said:

"The granting of a new trial for insufficiency of the evidence is by no means a declaration that no conflict exists. If absence of such conflict were a prerequisite for the granting of a new trial, judges could seldom discharge their incumbent duty to grant one for insufficiency of the evidence, however convinced of perjury or miscarriage of justice. The rule of the last case has been repeatedly sustained during succeeding years, notably by Buckle v. McConaghy, . . . . "

See, also, the following cases: Brown v. Macey, 13 Idaho 451, 455, 90 P. 339; Egbert v. Twin Falls Canal Co., 52 Idaho 39, 42, 11 P.2d 360; Turner v. First Nat. Bank, etc., 42 Idaho 597, 601, 248 P. 14; Caravelis v. Cacavas, 38 Idaho 123, 128, 220 P. 110; Trask v. Boise King Placers Co., 26 Idaho 290, 300, 142 P. 1073; Baillie v. City of Wallace, 22 Idaho 702, 709, 127 P. 908; Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410; Buster v. Fletcher, 22 Idaho 172, 182, 125 P. 226; Gray v. Pierson, 7 Idaho 540, 545, 64 P. 233; Brossard v. Morgan, 6 Idaho 479, 482, 56 P. 163; Jacksha v. Gilbert, 4 Idaho 738, 740, 44 P. 555.

This appeal illustrates the great importance of trial courts specifying the grounds on which a new trial is granted. We have frequently pointed out the desirability of such a practice and recommended its adoption by the courts. (See Penninger Lateral Co., Ltd., v. Clark, 20 Idaho 166, 167, 117 P. 764; Wolfe v. Ridley, 17 Idaho 173, 176, 104 P. 1014, 20 Ann. Cas. 39; Riggs v. Smith, 52 Idaho 43, 45, 11 P.2d 358; McAllister v. Bardsley, 37 Idaho 220, 224, 215 P. 852.

Here eleven specifications of grounds for new trial were made in the trial court; three of the specifications were directed against the sufficiency or insufficiency of the...