Wait v. Robertson Mortg. Co.

• Decision Date: 01 March 1905
• Citation: 79 P. 926,37 Wash. 282
• Parties: WAIT v. ROBERTSON MORTG. CO. et al.
• Court: Washington Supreme Court

79 P. 926

37 Wash. 282

WAIT v. ROBERTSON MORTG. CO. et al.

Supreme Court of Washington

March 1, 1905

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by D. P. Wait against the Robertson Mortgage Company and others. There was verdict for plaintiff, and from an order granting a motion for new trial he appeals. Affirmed.

L. T Turner, for appellant.

Peters & Powell, for respondents.

RUDKIN J.

The complaint in this action alleges that the defendants, without any probable cause therefor, wrongfully and maliciously caused a charge of insanity to be preferred against the plaintiff, upon which the plaintiff was arrested, examined, and discharged. The trial resulted in a verdict in favor of the plaintiff in the sum of $1,916. The court in which the verdict was returned granted a new trial upon the sole ground that the verdict was excessive. From the order granting a new trial this appeal is taken.

The appellant contends that the sufficiency of the evidence to sustain the verdict of the jury is the only question before this court. On the other hand, the respondents contend that an abuse of discretion in granting the new trial is the only question before us. Manifestly, the theory of the respondents is the correct one, as such questions are always addressed to the sound discretion of the trial court, and an appellate court will only interfere with the exercise of that discretion where an abuse is shown. Hughes v. Dexter Horton & Co., Bankers, 26 Wash. 110, 66 P. 109. In McLimans v. City of Lancaster, 15 N.W. 194, the Supreme Court of Wisconsin says: 'The judge before whom the cause was tried heard the testimony, observed the appearance and bearing of the witnesses and their manner of testifying, and was much better qualified to pass upon the credibility and weight of their testimony than this court can be. There are many comparatively trifling appearances and incidents, lights and shadows, which are not preserved in the record, which may well have affected the mind of the judge as well as the jury, in forming opinions of the weight of the evidence, the character and credibility of the witnesses, and of the very right and justice of the case. These considerations cannot be ignored in determining whether the judge exercised a reasonable discretion or abused his discretion in granting or refusing a motion for a new trial.'

Inasmuch as the case must be retried in the court below, any comment on the facts, except so far as they are ...