Opinion
No. 77-882
Decided October 12, 1978. Rehearing denied November 2, 1978. Certiorari granted January 22, 1979.
Although plaintiff raised no objections to the jury instructions, tendered no alternative instructions, nor asserted any allegation of error relative to the instructions in its motion for new trial, the trial court, nevertheless, granted plaintiff a new trial on the ground that the instructions were erroneous and incomplete. Defendant appealed.
Reversed
1. INSTRUCTIONS, CIVIL — No Objections Specified — No Instructions Tendered — Not Raised — New Trial Motion — Trial Court Own Initiative — Grant New Trial — Error. Under C.R.C.P. 51 any objections to jury instructions must be stated and only those specified objections "shall be considered" on motion for new trial; consequently, where no objections to the jury instructions given were asserted by plaintiff, where no alternate instructions were tendered, and where the matter was not raised in its motion for new trial, the trial court could not, on its own initiative, grant a new trial on the basis of any inadequacy in the instructions given.
Appeal from the District Court of Fremont County, Honorable Max C. Wilson, Judge.
Horn, Anderson Johnson, R. E. Anderson, for plaintiff-appellee.
Harry Kengle, for defendant-appellant.
Defendant, Rial Campbell, appeals the granting of a new trial in favor of plaintiff, First National Bank of Canon City. We reverse.
Plaintiff brought this action against defendant on two promissory notes, and defendant answered and counterclaimed. Trial was to a jury, which found in favor of defendant. Judgment was never entered on this verdict. Plaintiff filed a motion for new trial, and some four months after the jury's verdict, the trial court granted a new trial on the ground that the instructions given were erroneous and incomplete. However, plaintiff's then attorney failed to object to the instructions at the time of trial, failed to tender any instructions, and also failed to raise the question in the motion for new trial. The matter was retried to the court, which, after defendant chose not to present any evidence, found for plaintiff.
[1] The court erred in basing the order for a new trial on the inadequacies of the instructions. C.R.C.P. 51 specifically states that instructions must be objected to, and that "only the grounds so specified shall be considered on motion for a new trial . . . ." Since the record discloses, and plaintiff does not contest the fact, that no such objections were made here, the trial court erred in addressing the matter. 6A J. Moore, Federal Practice ¶ 59.08[2] (2d ed. 1974). See Caldwell v. Kats, 193 Colo. 384, 567 P.2d 371 (1977); Ross v. Colorado National Bank, 170 Colo. 436, 463 P.2d 882 (1969).
Nor are the trial court's actions sustainable under C.R.C.P. 59(d), which allows, under specified circumstances, a trial court to order a new trial sua sponte. Such an order may be based only on grounds "for which [the trial court] might have granted a new trial on motion of a party . . . ." C.R.C.P. 59(d). As discussed above, the trial court could not grant plaintiff's motion for a new trial since plaintiff failed to contemporaneously object to the instructions. Thus, the court could not order the new trial on its own initiative.
We recognize a certain tension between the contemporaneous objection rule, embodied in C.R.C.P. 51, and the philosophy of C.R.C.P. 59 that the trial court should be given broad discretion to correct errors. We also recognize that this tension has generated two rather divergent views in the Supreme Court on the question of who has the duty to see that the jury is properly instructed. Compare Scheer v. Cromwell, 158 Colo. 427, 407 P.2d 344 (1965) with Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963). At least under the circumstances of this case, we hold that the unequivocal language of C.R.C.P. 51 controls.
The judgment based on the new trial is reversed and the cause is remanded to the trial court with directions to consider the grounds specified in plaintiff's motion for new trial. If the trial court finds that these grounds do not support a new trial, the jury's verdict should be reinstated. If the trial court finds that these grounds do support a new trial, such trial shall be held as expeditiously as possible.
CHIEF JUDGE SILVERSTEIN and JUDGE VAN CISE concur.