Sutherland v. Northern P. Ry. Co.

• Decision Date: 27 April 1923
• Docket Number: 17538.
• Citation: 124 Wash. 413,214 P. 823
• Parties: SUTHERLAND v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

214 P. 823

124 Wash. 413

SUTHERLAND v. NORTHERN PAC. RY. CO. et al.

No. 17538.

Supreme Court of Washington

April 27, 1923

Department 2.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Action by C. B. Sutherland, receiver for the Centralia Millwork &amp Supply Company, against the Northern Pacific Railway Company and another. Judgment was for defendants, and from an order granting the plaintiff a new trial, defendants appel. Affirmed.

Geo. T Reid, of Seattle, J. W. Quick, of Tacoma, and Dysart &amp Ellsbury, of Centralia, for appellants.

C. D. Cunningham and J. H. Jahnke, both of Centralia, for respondent.

PARKER J.

The plaintiff, as receiver for the Centralia Millwork & Supply Company, commenced this action in the superior court for Lewis county, seeking recovery of damages alleged to have been suffered by that company by the burning of its plant as the result of the negligence of the defendant railway company and Stewart, its section foreman. A trial of the case upon its merits before the court, sitting with a jury, resulted in a verdict in favor of the defendants. A motion for a new trial was thereafter timely made by the plaintiff rested upon a number of stated grounds, one of which is 'insufficiency of the evidence to justify the verdict,' which, of course, means in this case that the verdict is contrary to the weight of the evidence, since the verdict, being in favor of the defendants, was necessarily negative in form. This motion was granted by the trial judge, as evidenced by his action in that behalf by his signing and filing a paper which he styled, 'memo decision on motion for new trial,' and later by a formal general order which did not specify any grounds for granting a new trial, signed by him and filed in the case. From this action of the trial court. The principal contentions to this court. The principal contentions here made in behalf of the defendants rest upon the thereoy that the trial court, in granting plaintiff's motion for a new trial, so limited the grounds upon which the granting of that motion was rested as to make it plain that such grounds involved only questions of law, and did not involve any element of discretion on the part of the court.

The court's so-called 'memo decision' is brought here as a part of the clerk's transcript of the record of the trial court, and is not made of record as a part of the statement of facts. In so far as we need here notice its language, it reads as follows:

'Many grievances of court and jury and opposing counsel were suggested by counsel for plaintiff why a new trial should be granted, more or less just criticisms no doubt, but hardly of sufficient merit to warrant setting aside the verdict on account thereof. Several errors of a serious nature were, however, pointed out that are more worthy of serious consideration. * * *

'(5) We shall not discuss the question raised by the motion for new trial, but not argued, to the effect that the verdict is not sustained by the evidence, since we have decided the motion should be granted for other and sufficient reversible error, other than to say we think the evidence ample to sustain a contrary verdict had proper instructions been given. * * *

'The motion for new trial is granted.

'Dated this 25th day of March, 1922.

'W. A. Reynolds, Judge.'

The portions of this paper which we have omitted from the above quotation contain brief discussions by the trial judge of our claimed grounds for a new trial, each of which he considered sufficient to call for the granting of a new trial. We may, for present purposes, concede that these four claimed grounds for a new trial involve questions of law only, and do not involve any question of fact nor the exercise of discretion by the trial judge.

Contention is made in behalf of the defendants that the court's 'memo decision,' above quoted from, is in substance and legal effect an order granting to the plaintiff a new trial, as evidenced by its concluding sentence, and therefore we may look to its recitals as evidencing the fact that the court granted the motion solely because of error of law occurring in the case; while contention is made in behalf of the plaintiff that that paper does not constitute an order granting a new trial, but is in effect nothing more than an expression of the trial judge's views why a new trial should be granted, and that it is therefore not property a part of the record in the case, it not being embodied in any statement of...