Storey v. Camper

• Decision Date: 30 March 1979
• Citation: 401 A.2d 458
• Court: Supreme Court of Delaware
• Parties: William J. STOREY, Defendant Below, Appellant, v. Jeanne L. CAMPER, Plaintiff Below, Appellee.

Page 458

401 A.2d 458

William J. STOREY, Defendant Below, Appellant, v. Jeanne L. CAMPER, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Nov. 20, 1978.

Decided March 30, 1979.

Upon appeal from Superior Court. Reversed.

Mason E. Turner, Jr., of Prickett, Ward, Burt & Sanders, Wilmington, for defendant-appellant.

John R. Williams, of Schmittinger & Rodriguez, Dover, for plaintiff-appellee.

Before HERRMANN, C. J., and DUFFY and QUILLEN, JJ.

QUILLEN, Justice:

There is one question presented by this appeal: Was it an abuse of discretion for the Trial Court to grant the plaintiff's motion for a new trial? We find, however, that the implications of the question are worthy of some exploration.

The facts are simple. The plaintiff had just left work and was proceeding east on Loockerman Street in Dover, intending to turn left at Bayard. She stopped at the intersection to permit the oncoming westbound traffic to pass. Her car was struck in the rear by the defendant's car. Liability was disputed.

Plaintiff testified she had turned her left turn signal on "probably fifty feet" prior to stopping and it remained on for the "minute" she was stopped prior to the accident.

Defendant estimated that he was traveling approximately twenty-five or thirty miles per hour, that he took his eyes off the plaintiff's car for a "few seconds" to look at his speedometer or mirror, that he looked up to see plaintiff's car stopped, and that he skidded into the plaintiff's car after applying his brakes. It seemed to him that plaintiff stopped "rather abruptly" and he "did not see any turn signal" although he did see "the brake lights when (he) looked up after looking away."

The Trial Court charged the jury on contributory negligence and proximate cause, including specifically a charge on 21 Del.C. § 4155(b) as in effect at the time of the accident. The statute then required that a signal of intention to turn "shall be given continuously during not less than the last (hundred) feet traveled by the vehicle before turning." The plaintiff, who had not moved for a directed verdict on any issue of liability, did not except to the charge. The case was tried as one of factual dispute.

Following a general verdict for the defendant, the plaintiff moved for a new trial "on the grounds that the verdict (was) against the weight of the evidence." The Trial Judge ordered a new trial with the following one-sentence opinion:

"After reviewing the evidence in this case pertaining to the liability of the defendant, the Court is of the opinion that the verdict should be set aside and a new trial ordered to prevent a manifestation of injustice."

The case brings to this Court a rather basic question, the standard of review by a trial court in a jury case on a motion for new trial based on the insufficiency of the evidence. While Delaware has its own particular legal development and it is upon our own State law that we must focus, it is useful to note that American law presents an interesting spectrum on the question at issue. As a leading treatise on federal procedure says:

"The power of a federal judge to grant a new trial on the ground that the verdict was against the weight of the evidence is clear. The standard that is to control in passing on motions of this kind is not."

11 Wright & Miller, Federal Practice and Procedure : Civil, § 2806, p. 42. Perhaps the differences in the standard to be applied are more differences in semantics and factors emphasized than result but a sampling of the federal authorities frequently cited is helpful to illustrate generally judicial efforts to define a standard and the factors considered. See generally 11 Wright & Miller, Supra, § 2806; 6A Moore's Federal Practice, P 59.08(5); Lind v. Schenley Industries, Inc., 3d Cir., 278 F.2d 79 (1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). In particular, a wider review gives fuller appreciation of our own law and assists in the defining of a standard.

Some courts appear to take a broad sweep of the discretionary power of a trial judge and have suggested verdicts may be set aside upon "consideration of what is just" (Murphy v. U.S. District Court, 9th Cir., 145 F.2d 1018, 1020 (1944) (discussing alleged excessive damages)) or "if he thinks the jury was mistaken or that the verdict is wrong" (Grayson v. Deal, D.Ct., N.D., Ala., S.D., 85 F.Supp. 431, 435 (1949) (emphasizing the "entirely different function" of the motion as compared to a motion for a directed verdict)).

Some cases, while emphasizing the difference in function and standard between the motion for a directed verdict and the motion for a new trial on the ground that the verdict is against the weight of the evidence, tend to temper somewhat the breadth of discretion given a trial court on the latter motion. The power of the court is said to be "much broader" on the motion for a new trial because the court "may weigh the evidence." But "(m)anifestly this authority should be exercised sparingly and cautiously," and "(i)t should be invoked only in cases in which the evidence preponderates heavily against the verdict." Miller v. Pennsylvania Railroad Co., D.Ct., D.C., 161 F.Supp. 633, 640-641 (1958), an opinion of Judge Holtzoff. Noting a "clear" distinction between the two motions, the Fourth Circuit has said a verdict supported by substantial evidence may be set aside where "(it) is contrary to the clear weight of the evidence." Garrison v. United States, 4th Cir., 62 F.2d 41, 42 (1932). These two cases were emphasized by then Judge (now President Judge) Stiftel in McCloskey v. McKelvey, Del.Super., 174 A.2d 691, 693-694 (1961). See also Aetna Casualty & Surety Co. v. Yeatts, 4th Cir., 122 F.2d 350 (1941), a case frequently cited for the distinct evidentiary role of the motion for a new trial and a case which traces the motion to a time before the American Revolution. ¹

Other cases cited in the general authorities use slightly stronger language "in describing how seriously erroneous the verdict must be before it may be set aside." 11 Wright & Miller, Supra, § 2806, p. 47. The verdict must be "so manifestly and palpably against the evidence . . . as to compel the conclusion that (it) is contrary to right and justice (American Cooler Co., Inc. v. Fay & Scott, D.Ct., Me., N.D., 20 F.Supp. 782, 783 (1937)) and the motion should be granted only in "extreme cases" (Lyophile-Cryochem Corp. v. Cutler Laboratories, Inc., D.Ct., N.D., Cal., S.D., 78 F.Supp. 903 (1948), aff'd in part and rev'd in part, 9th Cir., 179 F.2d 80 (1949)). See also McCloskey v. McKelvey, supra, at 174 A.2d 693. The Fifth Circuit noted the variation in standard and attempted some reconciliation directed toward restraint by the trial judge in Cities Service Oil Company v. Launey, 5th Cir., 403 F.2d 537, 540 (1968):

"Although the cases are not consistent in usage, some cases using the phrase 'clear weight' and others using the phrase 'overwhelming weight' or 'overwhelming evidence,' it seems clear that the jury's verdict must at least be against the Great weight of the evidence before a new trial may be granted."

Still other cases, with the Third Circuit Lind case authored by Chief Judge Biggs as a leading authority, emphasize the danger of the trial judge usurping "the prime function of the jury as the trier of the facts" and suggest it is error to grant a new trial only on the basis of the weight of the evidence where the subject matter of the litigation "is simple and easily comprehended by any intelligent layman." Lind v. Schenley Industries, Inc., supra, at 278 F.2d 91. See also Berner v. British Commonwealth Pacific Airlines, Ltd., 2d Cir., 346 F.2d 532, 536 (1965), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966); Duncan v. Duncan, 6th Cir., 377 F.2d 49, 52-55 (1967), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 260 (1967); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 8th Cir., 466 F.2d 179, 185-188 (1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973) (citing the Fifth Circuit case of Cities Service Oil Co. v. Launey, supra, with approval).

Finally, there are cases which essentially equate the standard for a directed verdict and the standard for a new trial on the weight of the evidence. Chapman v. Brown, D.Ct., Haw., 198 F.Supp. 78, 82 (1961), aff'd, 9th Cir., 304 F.2d 149 (1962); Haft v. Northern Pacific Railway Company, 64 Wash.2d 957, 395 P.2d 482, 484 (1964). For a criticism of the Washington case law, see Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash.L.Rev. 787 (1967). The Third Circuit following the Lind case has narrowed considerably the distance between the two standards, at least in simple factual situations. See Hourston v. Harvlan, 3d Cir., 457 F.2d 1105, 1107 (1972) (opinion by Chief Judge Seitz) (the court on a motion for new trial is "required to decide whether sufficient evidence existed on the record which, if accepted by the jury, could sustain the verdict").

There are some definite lines, however, that can be quickly drawn. It appears to be generally accepted, notwithstanding some case language suggesting unlimited discretion, that "(i)t is not a sufficient ground for a new trial that the verdict is merely against the preponderance of the testimony, or that the Court may have arrived at a different result." McCloskey v. McKelvey, supra, at 174 A.2d 693. Our law has also recognized that "a motion for judgment notwithstanding the verdict and a motion for a new trial serve entirely different purposes." Peters v. Gelb, Del.Supr., 314 A.2d 901, 904 (1973). And, of course, in this context a motion for judgment n. o. v. is equated with a motion for a directed verdict. As to the motion for a new trial at the "post-trial stage," this Court has specifically recognized the power of a trial court to "weigh the evidence" and "pass on its credibility." Millman v. Millman, Del.Supr., 359 A.2d 158, 160 (1976) (relying on the Fourth...