Stickney v. Congdon

• Decision Date: 27 October 1926
• Docket Number: 19879.
• Citation: Stickney v. Congdon, 140 Wash. 670, 250 P. 32 (Wash. 1926)
• Parties: STICKNEY v. CONGDON et ux.
• Court: Washington Supreme Court

250 P. 32

140 Wash. 670

STICKNEY v. CONGDON et ux.

No. 19879.

Supreme Court of Washington

October 27, 1926

Department 1.

Appeal from Superior Court, Chelan County; Parr, Judge.

Action by Frank L. Stickney against Russell T. Congdon and wife. Verdict for defendants. From an order granting a new trial defendants appeal, and plaintiff cross-appeals. Affirmed on both the direct and the cross appeal.

Corbin & Easton and D. A. Shiner, all of Wenatchee, for appellants.

R. V Welts and Wilbra Coleman, both of Mount Vernon, and Crollard & Steiner, of Wenatchee, for respondent.

BRIDGES, J.

By this action the plaintiff sought damages because of an X-ray burn. The defendant Russell T. Congdon is a physician and surgeon practicing at the city of Wenatchee. there have already been two trials of this case before a jury. In each instance there was a verdict for the defendants. In the first instance the trial court refused to grant a new trial, and the plaintiff appealed therefrom to this court. See Stickney v Congdon, 131 Wash. 7, 228 P. 849. On that appeal we gave the plaintiff a new trial. After the second verdict the trial court (being a judge other than the one who sat at the first trial) refused to grant plaintiff's motion for judgment notwithstanding the verdict, but did grant his motion for a new trial. The new trial was given because the court was 'convinced and satisfied from the evidence that substantial justice has not been done between the parties by the verdict of the jury, and that the evidence by its weight was contrary to the verdict of the jury,' and because there was misconduct on the part of the jury and on the part of the attorney for the defendant in the argument of the questions of law to the jury. From the order granting a new trial the defendant have appealed. The plaintiff has cross-appealed charging that the court erred in not granting his motion for judgment notwithstanding the verdict.

Inasmuch as we have determined that there must be a retrial, it will be proper for us to discuss the testimony only so far as is necessary to a determination of the questions involved. We will first dispose of the direct appeal, which involves only the order of the court granting a new trial.

In the case of Alberts v. Rasher, Kingman, Herrin, a Corporation, 128 Wash. 32, 221 P. 975, we quoted with approval from Faben v. Muir, 59 Wash. 250, 109 P. 798, as follows:

'In the early case of Rotting v. Cleman, 12 Wash. 615, 41 P. 907, this court announced the rule that it would not disturb the order of a trial court granting a new trial on the ground that the evidence was insufficient to justify the verdict, where there was a substantial conflict in the evidence, and Mr. Hayne was quoted as saying that this rule had been announced more frequently than any other rule of practice. The rule has been adhered to by us ever since, and is now the established rule of practice governing appeals in such cases.'

Many of our previous cases to like effect are cited in the opinion from which we have quoted.

In the case of Clark v. Great Northern R. Co., 37 Wash. 537, 79 P. 1108, 2 Ann. Cas. 760, speaking of a like situation, we said:

That trial courts 'should take due care not to invade the legitimate province of the jury, but, if, after giving full consideration to the testimony in the light of the verdict, the trial judge is still satisfied that the verdict is against the weight of the evidence, and that substantial justice has not been done between the parties, it is his duty to set the verdict aside.'

Similar expressions may be found in other of our cases.

These cases state the settled law of this state. There was ample testimony tending to show that respondent's burn was caused by the negligence of appellants. The trial court stated that he was satisfied that the verdict was against the weight of the evidence. Under these circumstances it was not only his privilege but his duty to set aside the verdict and grant a new trial.

The conclusion to which we have come on the question just discussed makes it unnecessary for us to say anything about the other grounds on which the court granted the new trial.

In support of the argument in favor of his motion for judgment notwithstanding the verdict, the cross-appellant interestingly and elaborately discusses the evidence and the inference to be drawn therefrom. He asserts that under our previous decision in this case the trial court should have granted his motion. As previously stated, the judge before whom the case was first tried refused to grant the plaintiff a new trial, and on...