McClure v. Wilson

• Decision Date: 22 December 1919
• Docket Number: 15563.
• Citation: McClure v. Wilson, 109 Wash. 166, 186 P. 302 (Wash. 1919)
• Court: Washington Supreme Court
• Parties: McCLURE v. WILSON et al.

186 P. 302

109 Wash. 166

McCLURE v. WILSON et al.

No. 15563.

Supreme Court of Washington

December 22, 1919

Department 1.

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Robert J. McClure against Charles A. Wilson and another.Judgment for defendants notwithstanding verdict for plaintiff, and plaintiff appeals.Judgment reversed, and case remanded, with directions to enter judgment for plaintiff in accordance with verdict.

Paul Shaffrath and Arthur C. Dresbach, both of Seattle, for appellant.

Morris B. Sachs and W. R. Crawford, all of Seattle, for respondents.

PARKER J.

The plaintiff, McClure, commenced this action in the superior court for King county, seeking recovery of damages which he claims to have suffered as a result of the negligent operation of an automobile by the defendant Wilson, while driving the same as agent for the defendant Matheny, the owner thereof.A trial upon the merits, in the superior court sitting with a jury, resulted in a verdict awarding the plaintiff recovery in the sum of $2,780.Thereafter the court rendered in favor of the defendants a judgment notwithstanding the verdict, upon motion timely made in that behalf by their counsel.From this disposition of the cause the plaintiff has appealed to this court.

The main question here to be decided is whether or not the trial court erred in refusing to render judgment in favor of appellant in accordance with the verdict, and in rendering the judgment against him notwithstanding the verdict.In view of the contention made by counsel for respondents that the condition of the record is such as to call for the conclusion that the trial court rendered its decision upon the questions of both law and fact, and that it was warranted in so doing as if the case had been tried before the court without a jury, it seems necessary that we first determine the viewpoint the trial judge was required or permitted to assume in rendering his decision upon the motion for judgment notwithstanding the verdict; that is, whether he was required to dispose of that motion as in any other ordinary jury case where a verdict is rendered, or whether he was, because of prior motions by counsel for the respective parties and the peculiar circumstances of the trial authorized to dispose of the motion as if he were then deciding the case upon the merits, upon questions of both law and fact.If the judge was required to dispose of the motion for judgment notwithstanding the verdict purely as such having in mind that the verdict of the jury would be controlling unless wrong, as a matter of law, it is plain we must test the correctness of his decision by determining whether or not there is evidence to support the verdict; while if the judge was, by reason of prior motions made by counsel for both parties and the peculiar circumstances of the trial, authorized to dispose of the motion as if he were deciding the case upon the merits, as to questions of fact as well as law, it is equally plain we must test the correctness of his decision by determining whether or not the weight of the evidence preponderates against it.

The facts determinative of the correctness of the decision upon this preliminary question may be summarized as follows: At the conclusion of the introduction of all of the evidence upon the trial, both sides having rested, a motion was made in behalf of respondents for an instructed verdict in their favor, rested upon the ground, in substance, that the evidence would not support any finding of negligence on the part of respondents; that appellant's injuries were conclusively proven to be the result of his own contributory negligence, and that therefore it should be so decided as a matter of law.This motion was immediately heard and denied.Immediately thereafter a motion was made in behalf of appellant, as follows:

'We ask at this time also for an instructed verdict for the plaintiff for the reason and upon the ground that the evidence distinctly shows by Mr. Wilson himself that he deliberately, willfully, ran this man down.'

This motion was also immediately heard and denied.Thereupon the trial judge instructed the jury, submitting to it the question of respondents' negligence and of appellant's contributory negligence, the instructions fully and fairly covering these questions, including a fair statement of the law relative to the burden of proof as to each.Thereupon counsel for the respective parties made their arguments to the jury, and a verdict was returned in favor of appellant as already noticed.

Counsel for respondents now contend that the motions for directed verdict made at the close of the evidence by counsel for the respective parties constituted, in effect, a consent on the part of each that the trial judge should dispose of the case upon the merits as to questions of both law and fact, and that such consent warranted the judge in so disposing of the motion for judgment notwithstanding the verdict, even after the denial of the motions for directed verdict before the submission of the case to the jury.Counsel invoke what they insist is the general rule that when, at the conclusion of a jury trial, before the submission of the case to the jury, motions for directed verdict are made by counsel upon both sides, such action on their part becomes, in effect, a waiver of trial by the jury, and a consent to the submission of the case to the trial judge to be decided by him upon the merits as to questions of both law and fact, citing our decisions in Knox v. Fuller,23 Wash. 34, 62 P. 131, Easterly v. Mills,54 Wash. 356, 103 P. 475, 28[109 Wash. 170] L. R. A. (N. S.) 952, and Sevier v. Hopkins,101 Wash. 404, 172 P. 550.

Had the trial judge taken the case from the jury and decided it upon the merits as to questions of both law and fact at the time of disposing of the motions for instructed verdict, before the submission of the case to the jury, we may concede for present purposes that he would have been warranted in so disposing of the case; but we are of the opinion that, since these motions were denied and the judge did, as a matter of fact, submit the case to the jury, fully and fairly submitting to it the questions of respondents' negligence and appellant's contributory negligence, the disposition of the motions for directed verdict, made before such submission of the case to the jury, is a closed incident in the trial, which can have no effect upon the subsequent proceedings therein.This is a law case of the purest kind; no relief being sought other than a money judgment for damages.It is not a question, therefore, of the verdict of the jury being merely advisory as may occur in an equity...