St. Louis-S. F. R. Co. v. Howard

• Decision Date: 16 April 1935
• Docket Number: Case Number: 24805
• Citation: 1935 OK 440,171 Okla. 561,43 P.2d 402
• Parties: ST. LOUIS-S. F. R. CO. v. HOWARD
• Court: Oklahoma Supreme Court

1935 OK 440

43 P.2d 402

171 Okla. 561

ST. LOUIS-S. F. R. CO. v. HOWARD

Case Number: 24805

Supreme Court of Oklahoma

Decided: April 16, 1935

Syllabus

¶0 1. Appeal and Error - Review - Discretion of Trial Court in Granting New Trial.

The granting of a new trial rests so much in the discretion of the trial court that the Supreme Court will not reverse such an order unless it is made to clearly appear that the trial court has erred in respect to some pure, simple, and unmixed question of law, and unless it can be seen that but for such error a new trial would not have been granted.

2. Same - Proper Order Granting New Trial Sustained Though Trial Court Assigned Wrong Reason.

Where a case is tried by jury, and a general verdict rendered, and the trial court sets the verdict aside, and grants a new trial, and proceedings in error are brought to review the action of the court in granting the new trial, this court will review the entire record, and, wherever the matters shown in the record warrant the making of the order, even though the lower court assigns a wrong reason for making the order, will sustain the order; held, that the lower court was within the bounds of his discretion in making such order. Gibson v. Van Leuven, 147 Okla. 217, 296 P. 412.

Appeal from District Court, Oklahoma County; R.P. Hill, Judge.

Action by George Howard against the St. Louis-San Francisco, Railway Company. Judgment for defendant; trial court granted a new trial, and defendant appeals from that order. Affirmed.

E.T. Miller and Cruce & Franklin, for plaintiff in error.

C.H. Ruth, for defendant in error.

PER CURIAM.

¶1 This is an action brought by the defendant in error, hereinafter called plaintiff, against the plaintiff in error, hereinafter called defendant, to recover damages for personal injury and for destruction of his automobile, and for loss of use thereof, by reason of a collision with a barricade across No. 66 Highway just west of the city of Chandler, Okla., on the night of January 29, 1929, the barricade having been placed across the highway by the defendant company while work on improvement of the crossing was being carried on.

¶2 The case was tried to a jury and resulted in a verdict in favor of the defendant. The plaintiff filed motion for a new trial, but before it was acted upon the trial court, the Honorable Wyley Jones, died. The Honorable R.P. Hill was appointed and qualified as successor to Judge Jones and it was stipulated that a transcript of the record be furnished to Judge Hill, and that he decide the motion as successor to Judge Jones. This procedure was followed, and on January 3, 1933, the motion for new trial was granted.

¶3 The order granting the new trial, so far as material to the issues here involved, is as follows:

"* * * and the court having heard argument of counsel both for and against said motion for new trial, and being fully advised in the premises, is of the opinion that the undisputed evidence contained in the record in this case entitled plaintiff, as a matter of law, to recover damages for the destruction of or damage to his automobile involved in the accident described in the evidence in this case; and for said reason said motion for new trial should be granted.

"Wherefore, it is ordered, adjudged and decreed by the court that plaintiff's motion for new trial herein be granted; and that said plaintiff be, and he is, hereby granted and given a new trial in this cause; and that the verdict of the jury heretofore rendered herein be set aside and held for naught; to which action of the court, in granting plaintiff's motion for new trial, and in granting plaintiff a new trial herein, defendant, in open court, excepts, and said exceptions are allowed by the court."

¶4 The defendant appealed from the order granting the new trial.

¶5 It is conceded by both plaintiff and defendant that it is the established law in this state, unless the record discloses that the order of the trial court in granting a new trial is based on an erroneous view of some pure, simple, and unmixed questions of law, the same will not be disturbed on appeal. Hivick v. Hemme, 118 Okla. 167, 247 P. 692; McLaurin v. People's State Bank of Coyle, 95 Okla. 6, 217 P. 187; Poynter v. Beacon Falls Rubber Co., 115 Okla. 245, 242 P. 563; Aughenbaugh v. Spellman & Co., 151 Okla. 152, 2 P.2d 1028; Jarecki Mfg. Co. v. Thames, 151 Okla. 234, 3 P.2d 428; Chicago, R.I. & P. R. Co. v. Wainscott, 103 Okla. 187229229 229 P. 808; Baker & Strawn v. Magnolia. Pet. Co., 124 Okla. 94, 254 P. 26; Hanna v. Williams, 128 Okla. 134, 261 P. 923.

¶6 It is the contention of the defendant that the trial court by the granting of the motion erred in a pure, simple, and unmixed question of law. The language used by the court in granting the motion gives rise to this contention. It is claimed that when the court said, "The court * * * is of the opinion that the undisputed evidence * * * entitled the plaintiff, as a matter of law, to recover," he erred in a pure, simple, and unmixed question of law. There is no further light thrown upon the holding of the court. The minutes of the court show simply, "Motion for new trial sustained."

¶7 The only question involved in this appeal, therefore, is whether or not the trial court by the use of the above-quoted language erred some pure, simple, and unmixed question of law.

¶8 The defendant argues that by the use of such language the trial court meant to hold that contributory negligence was not such a question as should have been submitted to the jury in this case, and that the primary negligence of the defendant was so completely established that it ceased to be a question for determination of the jury.

¶9 We do not believe the language of the trial court is subject to such interpretation. In the first place, it cannot be assumed by this court that the learned trial judge was not familiar with the well established law of this state which requires a question of contributory negligence to be submitted to a jury, when there is any evidence which tends to establish it; nor can it be assumed that the trial court was not familiar with the principles of law which usually require the question of primary negligence to be submitted to the jury. We do not believe that the trial court intended to state that these questions of negligence were not jury questions.

¶10 The reason given by the trial court for his ruling on the motion was that under the undisputed evidence he thought the plaintiff was entitled to recover as a matter of law. The court did not disregard the evidence, as contended by the defendant; but, on the contrary, he considered it and thought that the plaintiff, under the evidence, was entitled to recover as a matter of law. The trial court did not say what law. He may have been applying to the evidence the instructions as given by his predecessor in this case, of which the defendant does not complain. At any rate this court cannot assume...