State v. Hall

• Decision Date: 24 October 1968
• Docket Number: No. 39765,39765
• Citation: 446 P.2d 323,74 Wn.2d 726
• Parties: The STATE of Washington, Respondent, v. Theodore HALL, Appellant.
• Court: Washington Supreme Court

Page 726

74 Wn.2d 726

446 P.2d 323

The STATE of Washington, Respondent, v. Theodore HALL, Appellant.

No. 39765.

Supreme Court of Washington, Department 2.

Oct. 24, 1968.

Dailey & Brinster, Joseph H. Brinster, Everett, for appellant.

Robert E. Schillberg, Prosecuting Atty., Eugene Butler, Deputy Pros. Atty., Everett, for respondent.

HAMILTON, Judge.

This is a filiation proceeding tried to a jury. The jury concluded the defendant was not the father of the complaining witness' child. The trial court denied the state's post trial motion for judgment notwithstanding the verdict but granted its alternative motion for new trial.

The defendant appeals from the order granting a new trial and the state cross-appeals from that portion of the order denying judgment notwithstanding the verdict.

The challenged order, in pertinent part, reads:

(A)nd the Court finding that the filiation proceeding is in the nature of a civil action, and that there is no evidence or reasonable inference from the evidence to justify the verdict; and that it is absolutely preponderating and conclusively in favor of the plaintiff and that the verdict is contrary to law in that the law does not differentiate between those women who do not know the facts of life and those who do; and concluding that a new trial should be granted, Now Therefore,

IT IS HEREBY ORDERED that plaintiff's motion for judgment notwithstanding the verdict of the jury be denied and that plaintiff's motion for a new trial be granted and that the matter shall be reset for trial.

We approach the issues presented by the appeal and cross-appeal with an eye to the rule that when the basis for a post trial motion for judgment notwithstanding the verdict or in the alternative for a new trial is a challenge to the sufficiency of the evidence to support the verdict, the evidence and all reasonable inferences must be viewed and construed in a light most favorable to the party having the benefit of the verdict. If, when the evidence is so viewed, there appears competent and substantial evidence supportive of the verdict, then the verdict must be permitted to stand. In this respect, no element of discretion is involved when passing upon a motion for judgment notwithstanding the verdict. Frasch v. Leedom, 62 Wash.2d 410, 383 P.2d 307 (1963). Such a motion can be granted only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest.

A degree of discretion does exist, however, in this area when passing upon an alternative motion for new trial. Cyrus v. Martin, 64 Wash.2d 810, 394 P.2d 369 (1964). In the exercise of this discretion, though, the trial court is not permitted to weigh the evidence and simply substitute its judgment for that of the jury, for to...