Paich v. Northern P. Ry. Co.

• Decision Date: 17 November 1915
• Docket Number: 12082.
• Citation: 88 Wash. 163,152 P. 719
• Parties: PAICH v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

152 P. 719

88 Wash. 163

PAICH v. NORTHERN PAC. RY. CO.

No. 12082.

Supreme Court of Washington, En Banc.

November 17, 1915

Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

On petition for modification of decision. Denied.

For former opinion, see 150 P. 814.

Jay C. Allen and J. H. Allen, both of Seattle, for appellant.

C. H Winders, of Seattle, for respondent.

PARKER J.

Counsel for appellant have filed a petition seeking modification of our decision rendered upon rehearing in this case (150 P 814), wherein we reversed the judgment notwithstanding the verdict rendered in respondent's favor, vacated the order denying respondent's motion for a new trial, and remanded the cause to the superior court for further proceedings. Counsel complain of our vacation of the order denying respondent's motion for new trial, insisting that the motion for new trial was heard and disposed of by the superior court upon the merits, and that its denial should not now be disturbed. It is insisted that our statement of the circumstances under which the motion for new trial was heard and disposed of is not a correct interpretation of the record. Nevertheless we think the facts, as shown by the record, call for the conclusion reached by us.

It is plain that the motions for judgment notwithstanding the verdict and for new trial were filed on the same day, the latter being made, as recited therein, 'without waiving its motion for judgment notwithstanding the verdict' that they were submitted to the court and taken under advisement at the same time; and that they were disposed of by the court at the same time, as evidenced by an entry in the court's minutes of June 21, 1913, reading as follows 'Motion for judgment non obstante veredicto and motion for new trial are taken under advisement'--and also by an entry in the court's minutes of October 2, 1913, reading as follows: 'Defendant's motion for new trial is denied. Defendant's motion for judgment notwithstanding verdict is granted.' Separate formal judgment and order were accordingly thereafter signed by the judge on October 4 1913. Now it seems to us that the rendering of the judgment notwithstanding the verdict in respondent's favor must of necessity have rested upon the ground, in the trial judge's mind, that respondent was entitled to relief from the effect of the jury's verdict returned against it, at least to the extent of the granting of a new trial. In other words, the reasons for the judgment notwithstanding the verdict, if sound, were also such as to at least call for a new trial, though, of course, that was then unnecessary in view of the rendering of such a judgment, as long as that judgment remained unreversed. Viewed in this aspect, the order denying the motion for new trial was inconsistent with the judgment. So, as said in our opinion upon rehearing, the order was apparently made merely for the purpose of clearing the record of the motion, though this was wholly unnecessary at the time, in view of the judgment then rendered. Upon the whole record, it...