Shreve v. Cornell

Grace Cornell sued Shreve, Huff, and McKay in the district court of Oklahoma county for personal injuries resulting from the alleged negligence of the defendants. Verdict was for Cornell and against McKay. Shreve and Huff were exonerated. Both Cornell and McKay filed motions for new trial, which were sustained. Shreve and Huff appeal.

The trial court, upon timely request, assigned as its reasons for sustaining the aforesaid motions that the verdict was not sustained by the evidence, and that there was a mistake in the instructions as given by the court.

It is the duty of the trial court upon request of a litigant to state its reasons for sustaining motion for new trial, and on appeal from an order granting a new trial this court will confine its review to the reasons so assigned by the court. Alexander v. Alexander, 179 Okla. 614, 67 P.2d 33, 36-37.

In reviewing such orders this court is governed primarily by the rule many times announced by its decisions, and which may be found specifically stated in Spruce v. C., R.I. P. Ry. Co., 139 Okla. 123, 281 Rawle 586, as follows:

"Greater latitude is given the trial courts in sustaining motions for new trial than in overruling such motions. The general rule is that the action of a trial court in sustaining a motion for new trial will not be disturbed by the appellate court unless the trial court has acted arbitrarily or has clearly abused its discretion or has manifestly erred in some pure, simple, and unmixed question of law."

The trial court in assigning its reasons for granting a new trial has failed to point out the alleged mistake in the instructions. We find, after an examination thereof, that said instructions fairly state the law applicable to the issues. In sustaining the motion on that ground the court committed an error of law which, in the absence of other reasons, would ordinarily require a reversal of the judgment.

In addition to the above ground, however, the court said: "I can't agree with the jury about its findings. * * * I think the verdict of the jury was entirely contrary to the facts and the evidence and I can't consistently O. K. the verdict. * * * I felt like it was my duty while the jury was here to grant a new trial in their presence. I know it is proper to do it. It was so contrary to the testimony I would be ashamed to let the verdict stand." The court has in effect said that the verdict did not meet with its responsive and affirmative approval and conscience. If the verdict fails in this respect it is the duty of the trial court to set it aside and grant a new trial. Rawleigh Co. v. Cate, 170 Okla. 38, 38 P.2d 940. There we announced the doctrine 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."

In speaking of the duty of the trial court when confronted with such circumstances, and our duty with relation thereto on appeal, we said on rehearing in Alexander v. Alexander, supra, that "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,179 Okla. 492, 66 P.2d 17, '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."

Where the verdict with relation to conflicting evidence on a material issue fails to satisfy the conscience of the trial court, we are not inclined, on appeal, to dispute its conclusion and attempt to say, in the absence of a clear showing to the contrary, that the court has acted arbitrarily or abused its discretion. In this we are clearly supported by many of our former decisions. The Territorial Supreme Court, in Linderman v. Nolan, 16 Okla. 352, 83 P. 790. held:

"It is the duty of a trial judge to set aside the verdict of a jury unless he is satisfied that substantial justice has been done. An appellate court should not set aside a verdict unless it is manifest that injustice has been done."

In arriving at that conclusion the court said, among other things, that "where the evidence is conflicting on a material question, and the trial court sets aside the verdict of the jury, this court will not interfere." The above rule now obtains in this state without material alteration.

In setting aside the verdict for insufficiency of the evidence the trial court does not commit an error of law unless there is a total failure of evidence to support the cause or defense of the party in whose favor the new trial is granted. A. A. Taxicab Co. v. McCain, supra. Here the evidence was conflicting. Therefore the court's ruling thereon, that the same was insufficient, involved no question of law.

Although the trial court erred as a matter of law in granting a new trial on the ground of incorrect instructions, the error is rendered harmless in the face of the additional reason that the verdict by reason of the insufficiency of the evidence did not meet with the conscientious approval of the court. In the instant case the trial court on timely request has properly assigned its reasons for granting a new trial. There were two such reasons given. One was erroneous as a matter of law; the other lay within the court's sound judicial discretion, and is one we may not question in the absence of a manifest abuse of such discretion or a clear showing of arbitrary action.

The judgment of the trial court granting a new trial is therefore affirmed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.

OSBORN.C. J., BAYLESS, V. C. J., and RILEY, WELCH. HURST, and DAVISON, JJ., concur. PHELPS and CORN, JJ., dissent.