Alexander v. Alexander

In the instant case the trial court was requested by defendant to state its reasons for granting plaintiff a new trial. The court's response was that the plaintiff had not received a fair trial.

It is the duty of the trial court upon request of a litigant to state its reasons for sustaining a motion for new trial. See Magnolia Pet. Co. v. McDonald, 168 Okla. 255, 32 P.2d 909; A. A. Taxicab Co. v. McCain, 179 Okla. 492, 66 P.2d 17. On appeal from an order granting a new trial this court will confine its review to the reasons so assigned by the trial court.

The reason here assigned by the court for granting a new trial falls within that class of cases where the whole proceeding fails to meet with the conscience of the trial court. When reviewing an order based upon that ground, this court is committed to the doctrine announced in W. T. Rawleigh Co. v. Cate, 170 Okla. 38, 39, 38 P.2d 940, 941, as follows:

"It must not be forgotten that it is an unyielding and obligatory duty of the trial court to carefully weigh the entire judicial proceedings which have occurred throughout the trial, and, unless the verdict of the jury meets the responsive and affirmative approval and conscience of the court, it should not stand, and the same should be set aside, and a new trial granted."

Whether the proceedings and the result thereof meet the "responsive and affirmative approval and conscience of the court," as stated in the A. A. Taxicab Company Case, "is a matter wholly within the knowledge and discretion of the trial court, and it is not within the province of the Supreme Court to say that such verdict did not satisfy the conscience of that court;" and we may add here that it is not within the province of this court to say that the entire proceedings did or did not meet with the conscience of the trial court.

Defendant insists, however, that since plaintiff was successful in the cause and obtained a verdict, the court's reason as given could amount to no more than its disapproval of the amount awarded plaintiff. Smallness of the verdict, defendant says, is no ground for granting a new trial in a personal injury action. That is true. The statute denies the right to new trial on that ground, and the decisions so hold. Section 399, O. S. 1931; M., K. T. Ry. Co. v. Lindsey,82 Okla. 165, 198 P. 1000; Woodard v. Sanderson, 83 Okla. 173,201 P. 361; Murray v. Decker, 132 Okla. 188, 270 P. 38; Durbin v. Martin Fleming Co., 142 Okla. 53, 285 P. 82; Clements v. Canon,170 Okla. 340, 40 P.2d 640.

The cited cases deal with the granting or denying of new trial on the specific ground of the smallness of the verdict. Here the ground assigned by the court was not the smallness of the verdict, but was, specifically, that plaintiff had not been accorded a fair trial. This, in effect, was to say that after weighing the entire judicial proceedings, the result thereof did not meet with the approval and conscience of the court, all of which constitutes a ground, on the court's own motion, to grant a new trial, and which by reason of its very nature, is so peculiar to the mind of the trial court that this court will not dispute it.

Defendant says, further, that the record is silent as to any legal ground for granting a new trial, and that in such case this court will presume that no ground existed. Poynter v. Beacon Falls Rubber Co., 115 Okla. 245, 242 P. 563. That case is not in point, for here the trial court, upon its own motion, assigned a specific ground upon which its order was based. In such case, as stated in the original opinion herein, where the ground as here stated exists, it is not only the privilege, but is the duty, of the trial court to grant a new trial.

The petition for rehearing is denied.

OSBORN, C. J., BAYLESS, V. C. J., and BUSBY, WELCH, PHELPS, CORN, and HURST, JJ., concur. RILEY, J., absent.