Wasutskie v. Malouin

• Decision Date: 01 September 1936
• Citation: 186 A. 769
• Parties: WASUTSKIE v. MALOUIN.
• Court: New Hampshire Supreme Court

186 A. 769

WASUTSKIE

v. MALOUIN.

Supreme Court of New Hampshire. Merrimack.

Sept. 1, 1936.

Transferred from Superior Court, Merrimack County; Scammon, Judge.

Case by John Wasutskie against Raymond C. Malouin. Verdict for defendant. On denial of motion to set aside verdict in favor of defendant, plaintiff excepts. Case transferred.

Exception overruled.

Case, by a passenger in an automobile against its driver. The plaintiff moved that the jury's verdict for the defendant be set aside as against the evidence and the weight of the evidence. He made no motion for a directed verdict before the case was submitted. To the denial of the motion to set aside the verdict he excepted. The opinion states the material facts.

Willoughby A. Colby, of Concord, for plaintiff.

Demond, Woodworth, Sulloway, Piper & Jones, of Concord (Franklin Hollis, of Concord, orally), for defendant.

ALLEN, Chief Justice.

In Bennett v. Larose, 82 N.H. 443, 136 A. 254, the court passed upon the scope of a motion to set aside a verdict on each of the two grounds that it is against the evidence and against the weight of the evidence. In respect to the latter ground, it is now suggested that its limitations as thus laid down tend to defeat practical justice and that a more liberal policy in dealing with it will better secure correction of error. It has accordingly been deemed advisable to review the subject. The inquiry relates to procedural justice. If a somewhat austere position appears to have been taken when greater liberality is regarded to be more effective in obtaining fairness of trial, the authority of precedents and customary practice should not be so strong as to stand in the way of the more certain assertion of justice. A fair trial is of first importance in the conduct of litigation, and the demand for the "best inventible procedure" seeks new methods and regulations thought to be in improvement. Procedural law and rules of court have some relationship. Lisbon v. Lyman, 49 N.H. 553, 571, 588, 604, 605; Tuttle v. Dodge, 80 N.H. 304, 312, 116 A. 627.

The discussion in the Bennett Case of the weight of evidence as against a verdict has produced some misunderstanding. The questions whether a verdict has any evidence to support it and whether it is supported by the weight of the evidence are both in their real nature inquiries of fact. Evidence on an issue is or is not sufficient to warrant the finding on it, and the finding does or does not have a preponderance of evidence in its favor. But, while inquiry into the weight of evidence is treated as matter of fact, the question of sufficient evidence is dealt with as matter of law. The result is that, while this court and the trial court consider the latter question by common and the same tests, the trial court's conclusion respecting the weight of evidence is a finding and not a ruling. This court may only say, on exception to the finding, whether there was any reasonable evidence which permitted it. It was not intended by the Bennett Case to invoke any new or special rules to govern the trial court in its consideration and action upon it. As the Bennett Case says (82 N.H. 443, at page 448, 136 A. 254, 257): "The rule which allows a verdict to be set aside, upon a motion directed against the weight of the evidence, is designed to cover only flagrant cases where there is some conflicting evidence, but where such evidence is so preponderantly in favor of the losing party as to disclose mistake, partiality, or corruption on the part of the triers of fact." Omitting the suggestion of flagrancy, the statement is in practical accord with a conventional view which has been expressed in many cases. And the trial court's finding is final, unless as matter of law there is no evidence to warrant it. Lavigne v. Lavigne, 80 N. H. 559, 561, 119 A. 869. "This court has no jurisdiction of questions of fact determined in the superior court by the presiding judge. The only questions that can be raised here are: (1) Whether there was any evidence in support of the finding; and (2) whether the finding clearly appears to involve a plain mistake." Marshall v. Morin, 79 N.H. 351, 352, 109 A. 80. Other cases make the distinction. Ingerson v. Railway, 79 N.H. 154, 159, 106 A. 488; Stowe v. Payne, 80 N.H. 331, 333, 117 A. 16; Cadorette v. Markarian, 80 N.H. 591, 117 A. 459; Morrell v. Gobeil, 84 N.H. 150, 151, 147 A. 413. The court in State v. Wren, 77 N.H. 361, 367, 92 A. 170, 174, announced the principle in this language: "The verdict of a jury or the conclusions of a referee can only be set aside on this ground [as against the weight of the evidence], where it conclusively appears that the triers of fact unwittingly fell into a plain mistake, or that the verdict was 'produced by passion, partiality, or corruption. The same rule applies when a finding of fact made by the presiding judge * * * is attacked as against the evidence." The context and citations show clearly that no rule was thereby imposed upon the trial court in control of its action when a claim that a verdict is against the weight of the evidence is addressed to it In Simes v. Atwell, 85 N.H. 537, 161 A. 381, 382, no attention was given to such a claim except in its aspect as presenting a question of law. It is said in the opinion: "The question of the substantially conclusive nature of the proof, so that no reasonable man could fail to find in favor of the defeated party, may be raised in this way." This statement refers only to an exception to the trial court's finding. Any thought that the Bennett Case restricts the trial court in its fact finding functions is misconceived.

The only case found which treats the is sue of the weight of evidence as matter of law when it is before the trial court is Doody v. Railroad, 77 N.H. 161, 89 A. 487, 489, Ann.Cas.1914C, 846. The opinion upon the point states that the law does not "authorize the court to weigh the evidence, consider conflicting testimony, or pass upon the credibility of witnesses—clearly the peculiar province of the jury—but to determine in view of all the circumstances disclosed whether the jury have properly performed their duty under the instructions of the court." Further, the opinion reads: "The inquiry in such cases is, not whether the judge acting as a juror would or would not have come to the conclusion reached by the jury in their verdict, but whether reasonable men charged with the duty of finding facts from the evidence, under the court's instructions as to the law applicable to the case, could come to that result."

To adopt this declaration of the rule would be to do away with all consideration of the weight of evidence in distinction from the issue of any evidence. This issue of any evidence is resolved by determining "whether reasonable men * * * could come to" the result reached from the evidence, and to resolve the issue of the weight of evidence by the same test would entirely destroy its standing. None of the cases cited to support this proposition of the Doody Case appear, on examination, to do so.

As to the trial court's duty in determining whether a verdict is against the weight of the evidence, much trouble has been encountered in formulating a precise statement of it. It is a feature of a jury trial for the trial judge not only to see that the trial is fairly conducted, but also to correct or vacate what turns out to be an unfair result. To inspect the product is no less a duty than to oversee the process of production. But it is difficult to draw a sharp and precise line between the jury's province to pass upon the weight of the evidence and the trial court's authority in respect to it. Various tests have been laid down.

In Wendell v. Safford, 12 N.H. 171, 178, 179, the court expressed this view: "When the verdict is decidedly against the weight of evidence, so that it is apparent that the jury must have misunderstood or totally disregarded the instructions of the court thereon, or must have neglected to consider the facts, and overlooked prominent and essential points in the evidence, where it is such a verdict that twelve honest and intelligent men would not have returned it, it is the duty of the court to set it aside. * * * But...