Shead v. Riser

• Decision Date: 08 October 1925
• Docket Number: 19217.
• Citation: Shead v. Riser, 136 Wash. 270, 239 P. 562 (Wash. 1925)
• Court: Washington Supreme Court
• Parties: SHEAD v. RISER et al.

239 P. 562

136 Wash. 270

SHEAD v. RISER et al.

No. 19217.

Supreme Court of Washington

October 8, 1925

Department 1.

Appeal from Superior Court, King County; Hall, Judge.

Action by Haidee Gasch Shead, administratrix of estate of Henry N Shead, deceased, against John Riser and others, to recover damages for death of Henry N. Shead. Verdict for plaintiff and from an order granting a new trial for inadequacy of damages and error in instructions, defendants appeal. Affirmed.

J Speed Smith, Henry Elliott, Jr., and Murphy & Kumm, all of Seattle, for appellants.

Elias A. Wright, Sam A. Wright, and Arthur E. Griffin, all of Seattle, for respondent.

MAIN J.

This action was brought to recover damages for the death of Henry N. Shead, who was so seriously injured when two automobiles collided that he died shortly thereafter. One of the cars was driven by the defendant John Riser, and the other by the defendant Volney P. Richmond. The action is against the owners of both cars. Mr. Schead, at the time of the accident, was a guest in the car driven by Richmond. The trial was to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $1,000. The plaintiff moved for a new trial upon all the statutory grounds. The motion was sustained, and in the order granting a new trial it is recited that it is granted because of error in the instructions, and also because of the inadequacy of the damages awarded by the jury. From this order the defendants appeal.

The first question that will be considered is whether the court erred in granting the new trial because the damages were inadequate. The order recites:

'That the motion for the new trial of the plaintiff made herein is hereby granted on the ground of error committed by the court in giving instructions Nos. 11 and 12, and on the further ground that the verdict as rendered by the jury is inadequate, appearing to have been given under the influence of passion and prejudice, resulting in the assessment of a recovery that is too small.'

Under section 399, Rem. Comp. Stat., where inadequate damages appearing to have been given under the influence of passion or prejudice, are awarded by the jury, it is not only the right, but the duty, of the trial court to set aside the verdict and grant a new trial. Where the trial court grants a new trial, for the reason that the damages are inadequate, this court will not interfere, unless we can see from the record that there was an abuse of discretion. Many things may occur during the trial of a case which are perfectly manifest to the trial court, but which are not and cannot be made a matter of record. In Danielson v. Carstens Packing Co., 115 Wash. 516, 197 P. 617, it was said:

'The granting or refusing to grant a new trial is entirely discretionary with the trial court, except where pure questions of law are involved, and we have held time and again that we will not interfere with the action of the court in this regard, unless we can see from the record that it has abused its discretion. Getty v. Hutton, 110 Wash. 429, 188 P. 497, and cases there cited. But if we were to assume, as appellant does, that the court granted the motion for new trial because it considered the verdict of the jury to be inadequate, still we would not interfere, because we cannot say from the record that it abused the discretion vested in it. Many things may occur during the trial of a case which are perfectly manifest to the trial court, but which are not and cannot be made a matter of record.'

The cases of Aboltin v. Heney, 62 Wash. 65, 113 P. 245, Bernard v. North Yakima, 80 Wash. 472, 141 P. 1034, Hawn v. Yakima County, 93 Wash. 87, 160 P. 7, and Getty v. Hutton, 110 Wash. 429, 188 P. 497, are to the same effect.

The force of those cases is recognized by the appellants, but they argue that in a case of this kind the rule should not be applied. Section 183-1, Rem. Comp. Stat., after reciting for whose benefit the action may be brought, concludes:

'In every such action the jury may give such damages

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