Yocum v. Department of Labor and Industries, 29363.

• Decision Date: 15 December 1944
• Docket Number: 29363.
• Citation: 154 P.2d 306,22 Wn.2d 72
• Parties: YOCUM v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

154 P.2d 306

22 Wn.2d 72

YOCUM v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 29363.

Supreme Court of Washington

December 15, 1944

Appeal by Ray Yocum to review an order of the joint board of the Department of Labor and Industries of the State of Washington, wherein a jury returned a verdict for the Department. From an order granting Ray Yocum a new trial, the Department appeals.

Affirmed.

MALLERY J., dissenting.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Smith Troy and Simon Wampold, Jr., both of Olympia, for appellant.

Oscar A. Zabel and Philip J. Poth, both of Seattle, for respondent.

ROBINSON Justice.

On an appeal from an order of the joint board of the state department of labor and industries, a jury returned a verdict in favor of the department on January 10, 1944. On January 13, 1944, the claimant filed his motion for a new trial which reads as follows:

'Comes now the plaintiff and moves the Court for an order setting aside the verdict in the above entitled cause and grant to the plaintiff a new trial herein upon the following grounds:

'1. That substantial justice has not been done.

'2. That said verdict is contrary to the evidence and to the law.

'3. That said verdict is not supported by the evidence.

'4. Error of law occurring at the trial and excepted to at the time by the plaintiff.'

On April 1, 1944, the trial court entered the following order:

'This matter having come on for hearing Before the undersigned Judge upon the motion of the plaintiff for a new trial and for an order to set aside the verdict in the above entitled cause, and after hearing arguments of counsel for the plaintiff and defendant, and it appearing to the Court that the motion for a new trial is well taken and should be granted, and the Court being otherwise fully advised in the premises, it is, now, by the Court.

'Ordered, adjudged and decreed that the verdict of the jury in the above entitled cause be set aside and held for naught and that the plaintiff herein be, and he is hereby granted a new trial.'

This appeal was taken on April 10, 1944, a few days Before the opinion in Bond v. Ovens, 20 Wash.2d 354, 147 P.2d 514, appeared in our Advance Sheets. We take it that appellant's opening brief in this case was prepared immediately on giving the notice of appeal, since the opinion in Bond v. Ovens is not cited therein.

In Bond v. Ovens, as in this case, the trial court granted a new trial after a jury verdict for the defendant, on the express ground that substantial justice had not been done. It was held that the trial court had inherent power to do so, and, for reasons therein shown at length, that this court has no power to review and set aside a new trial order made on that ground. In its opening brief, under the caption 'Argument,' the appellant makes the following statement:

'In view of the fact that the court refused to set forth the grounds upon which he granted the motion for a new trial, it will be necessary to assume that the same may have been granted upon any one of the grounds stated in plaintiff's motion. Applewhite v. Wayne, 152 Wash. 62, 63 ; Ahrens v. Anderson, 186 Wash. 182, 184 ; Stuckrath v. Schwarz, 10 Wash.2d 1, 2 .

' By reason of the foregoing it will be necessary to show that the new trial properly could not have been granted for any of the reasons set forth in the motion.' (Italics ours.)

But, as we have above shown, the very first ground set forth in the motion is:

'1. That substantial justice has not been done.'

The appellant, therefore, concedes, in the language italicized in the foregoing quotation, that, in order to reverse the order appealed from, it has the burden of showing that...