Mason v. Underwood

• Decision Date: 23 November 1922
• Citation: 191 N.W. 949,49 N.D. 243
• Court: North Dakota Supreme Court

191 N.W. 949

49 N.D. 243

KATHERINE MASON, Appellant, v. FRED UNDERWOOD, Respondent

Supreme Court of North Dakota

November 23, 1922

Appeal from the District Court of Ransom County, Allen, J.

Plaintiff appeals from an order granting a new trial.

Affirmed.

C. G Bangert, Curtis & Remington, and E. T. Burke, for appellant.

Kvello & Adams, for respondent.

CHRISTIANSON J. BIRDZELL, Ch. J., concurs, ROBINSON, J. (specially concurring). GRACE, J., BRONSON, J., (dissenting).

OPINION

CHRISTIANSON, J.

This is an appeal from an order granting defendant's motion for a new trial. The action is one to recover damages for false imprisonment. The plaintiff recovered a verdict in the sum of $ 3,250. The motion for a new trial was made on the ground, among others, of excessive damages appearing to have been given under the influence of passion or prejudice. The trial court granted the motion on this ground and the plaintiff has appealed.

The rules governing the respective functions of trial and appellate courts in considerations of motions for a new trial on a discretionary ground have been so thoroughly considered by this court that we shall not restate these rules but content ourselves by citing some of the many cases in which the applicable principles have been stated. See Pengilly v. J. I. Case Threshing Mach. Co. 11 N.D. 249; 91 N.W 63, 12 Am. Neg. Rep. 619; Aylmer v. Adams, 30 N.D 514, 153 N.W. 419; State v. Cray, 31 N.D. 67, 153 N.W. 425; Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707; Blackorby v. Ginther, 34 N.D. 248, 158 N.W. 354; Reid v. Ehr, 36 N.D. 552, 162 N.W. 903; First International Bank v. Davidson, 36 N.D. 1, 161 N.W. 281. Stated generally, the fundamental rule applicable to motions of this kind is that such motion is addressed to the sound, judicial discretion of the trial court and that the appellate court will not interfere unless a manifest abuse of such discretion is shown. In actions like the one before us, actions for personal torts, the law does not fix any precise rule for admeasurement of damages, and from the necessity of the case their assessment is left to the good sense and unbiased judgment of the jury. The parties, however, are entitled to have such judgment exercised, and when the jury instead of exercising cool and deliberate judgment permit the verdict to be dictated by passion and prejudice, the trial court not only has the power, but it is a duty incumbent upon it to set the verdict aside. Of course, the trial court has no right to substitute its judgment for the judgment of the jury as to the amount of damages to be awarded. Its inquiry is limited to whether the jury in arriving at the amount allowed, was actuated by passion or prejudice. That is, the trial court is not authorized to grant a new trial in cases of this kind merely because it deems the damages awarded too large; it is authorized to do so only when it reaches the conclusion that an excessive amount was awarded as a result of passion or prejudice. It is the function of the trial court to determine whether the verdict was actuated by passion or prejudice. The function of the supreme court is to review,--not the action of the jury but,--the action of the trial court. And as the trial court is limited to a determination of the existence of passion or prejudice, so the supreme court in turn is limited to a determination of whether the trial court's decision upon this question is manifestly correct or incorrect. That is, the appellate court is limited to a consideration of whether the decision of the trial court is so clearly and manifestly wrong as to amount to an abuse of discretion. Or as has been stated the question presented to this court in a case like this is whether the verdict returned by the jury for the injuries sustained by the plaintiff is so reasonable that this court can say, upon the cold paper record before it, that the trial judge was clearly and unquestionably in error when he said that the verdict was so large that it appeared to him to have been given under the influence of passion or prejudice,--that is to say of excited feeling rather than of calm, sober, deliberate judgment; or of prejudice, that is to say of a state of mind partial to the successful party or unfair to the other. The appellate court is not justified in reversing the order merely because it differs from the trial court as to what would have been just compensation unless the difference of opinion is such as to justify the conclusion that the trial court abused its discretion. Hayne, New Tr. & App. § 95; Lee v. Southern P. R. Co. 101 Cal. 118, 35 P. 572.

Appellant lays stress on the fact that this case has been twice tried and that the verdict under consideration here is the second verdict returned in the case. Ordinarily the effect of a former verdict upon the same set of facts is entitled to considerable consideration in determining whether a second verdict is so excessive as to evidence passion or prejudice. That is, when a trial court has set aside one verdict on this ground and a second trial has resulted in a verdict in substantially the same amount, the court will necessarily have some hesitancy in interfering, and at least one court seems to hold that a new trial will not be granted on this ground after a third verdict. 26 L.R.A. 391, note. However, the first verdict in this case was returned not only against Underwood but against Harper,--the owner of the property involved in the controversy which resulted in the arrest. On the second trial no verdict was returned against such owner. In fact the action was dismissed as to him and the verdict was...