Opinion
No. 4968.
September 21, 1928.
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.
Action to recover damages. Judgment for plaintiff, who appeals from order granting new trial. Order affirmed.
J.E. Gyde, for Appellant.
In the beginning this well established and correct rule in this jurisdiction must be borne in mind: "Where the record does not show the ground upon which the new trial was granted (as in the instant case), and no error warranting a new trial is apparent from the record, the order granting the new trial will be reversed." ( Lowe v. Long, 5 Idaho 122, 47 P. 93; Smith v. Wallace National Bank, 27 Idaho 441, 150 P. 21.)
In Lowe v. Long, supra, the court said: "The verdict would seem to be supported by the evidence, and the judgment upon the verdict was correct. We are not advised through the record as to what were the grounds upon which the motion for a new trial was granted. We must be controlled by the record presented to us, however distasteful it may be to overrule the decision of the lower court in a matter which is of necessity largely one of discretion. The order of the judge of the district court granting defendant's motion for a new trial is reversed, and the judgment reinstated and held to be in full force and effect."
In Smith v. Wallace National Bank, supra, this court in discussing this question on page 453 says: "This court is not unmindful of the oft repeated rule that 'the trial court possesses a discretion to be exercised wisely in the granting or refusal of new trials, and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.' However, in case of Lowe v. Long, 5 Idaho 122, 47 P. 93, this additional rule is announced (quoting from the syllabus): 'Where the record does not show the ground upon which a new trial was granted, and no error warranting a new trial is apparent from the record, the order granting a new trial will be reversed.' (See, also, Wood Livestock Co. v. Woodmansee, 7 Idaho 250, 61 P. 1029; Clifford v. Denver S. P. P. R. Co., 12 Colo. 125, 20 P. 333.)
"The order of the judge of the district court granting a new trial is reversed, and the judgment is reinstated and held to be in full force and effect."
Carlton Fox and Cannon McKevitt, for Respondent.
Where one of the grounds upon which a motion for a new trial is made is that the evidence is insufficient to sustain the verdict, the action of the trial court in granting a new trial will be sustained on the ground that it acted within its discretion, though the order is in general terms and does not state the grounds upon which it was granted. ( Gray v. Pierson, 7 Idaho 540, 64 P. 233; Bernier v. Anderson, 8 Idaho 675, 70 Pac. 1027; Jones v. Campbell, 11 Idaho 752, 84 P. 510; Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97; State v. Barber, 15 Idaho 96, 96 P. 116; Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 P. 1014; Say v. Hodgin, 20 Idaho 64, 116 Pac. 410; Cox v. Cox, 22 Idaho 692, 127 P. 679.)
The order granting a new trial will be upheld if there is any ground upon which this can be done. ( Sell v. Sell, 58 Mont. 329, 193 P. 561.)
Where the order does not state the ground upon which a new trial was granted, the presumption is that it was granted because the evidence was insufficient. ( King v. Mann (Mo.App.), 199 S.W. 705; Pacific Gas Electric Co. v. Rollins, 32 Cal.App. 782, 164 P. 53.)
Suit for damages alleged to have been caused by defendant's negligent collision with plaintiff's automobile. Judgment for plaintiff. From an order granting defendant a new trial, plaintiff appeals. Insufficiency of the evidence was one of the numerous grounds specified in support of the motion, but the record does not disclose upon what ground the new trial was awarded. Respondent urges none other than insufficiencies of the evidence, in effect admitting the remaining grounds meritless.
At the outset appellant contends that Lowe v. Long, 5 Idaho 122, 47 P. 93, Wood Livestock Co. v. Woodmansee, 7 Idaho 250, 61 P. 1029, Sweetzer v. Mellick, 5 Idaho 783, 51 P. 985, and Smith v. Wallace National Bank, 27 Idaho 441, 150 P. 21, have established the rule that "where the record does not show the ground upon which a new trial was granted, and no error warranting a new trial is app granting the new trial will be reversed," emphasizing the portion thereof stating that "where the record does not show the ground upon which a new trial was granted . . . . the order granting the new trial will be reversed."
From an examination of these cases it is apparent that the material part of the rule was whether error appeared in the record warranting the granting of a new trial. This is clearly evident from the following language in Smith v. Wallace National Bank, supra, wherein the court said (p. 447): "A careful examination of the record fails to disclose a single error committed during the course of the trial," and after discussing the essential questions in the case concludes that the trial court improperly granted the new trial. In other words, these cases indicate that the merits of the controversy control and not whether error warranting the granting of a new trial was specified.
The properly allocated emphasis is stated in Bernier v. Anderson, 8 Idaho 675, 70 P. 1027. "The important thing is what the record shows" (i. e., as to error). In that case, insufficiency of the evidence was relied on, along with alleged misconduct of the jury and other grounds. The record did not show upon what particular ground the trial judgeranted a new trial; and the court, after announcing, "we have, therefore, been required to examine the record to ascertain whether there is apparent on the face of the record error sufficient to warrant the court below in granting a new trial," proceeded to discuss and dismiss the errors denoted, and concluded that the court had properly granted the new trial upon the insufficiency of the evidence. While it did not appear that the evidence was substantially conflicting, it neither appeared that it was not so conflicting.
The granting of a new trial for insufficiency of the evidence is by no means a declaration that no conflict exists. If absence of such conflict were a prerequisite for the granting of a new trial, judges could seldom discharge their incumbent duty to grant one for insufficiency of the evidence, however convinced of perjury or miscarriage of justice. The rule of the last case has been repeatedly sustained during succeeding years, notably by Buckle v. McConaghy, 12 Idaho 733, 88 Pac. 100, Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 Pac. 1014, Penninger Lateral Co., Ltd., v. Clark, 20 Idaho 166, 117 Pac. 764, and Cox v. Cox, 22 Idaho 692, 127 P. 679.
The latest expression of the rule is found in Turner v. First National Bank, 42 Idaho 597, 248 P. 14, as follows:
"An order granting a new trial will not be reversed on appeal if it can be justified upon any of the grounds upon which the motion was made."
Such a view is the logical concomitant of the universally accepted doctrine that, upon proper motion, a trial judge should, notwithstanding a substantial conflict in the testimony, grant a new trial if he is satisfied that the verdict is against the weight of the evidence. And even though there be no conflict in the testimony, the probative force and effect of the evidence is ultimately for the determination of the trial court upon the hearing of a motion for a new trial. ( Meinberg v. Jordan, 29 Cal.App. 760, 157 P. 1005.)
Where one of the specified grounds is insufficiency of the evidence, and a new trial is granted without denominating the basis therefor, the appellate court, in the pressence of substantially conflicting evidence, will presume that the trial judge has discharged his duty under conviction that the verdict is not in accord with the great weight of the evidence and that the ends of justice would be subserved by vacating the same.
Order affirmed. Costs to respondent.
Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.
Petition for rehearing denied.