Johnson v. Domer

Chadwick, J.

(concurring) — It is my opinion that this case does not fall within the rule of Cranford v. O’Shea, 75 Wash. 33, 134 Pac. 486, or any of the cases cited therein. In that case, the judge did not exercise the judicial discretion which the law had put upon him. He misconceived the extent of his power. Here the judge did exercise his discretion. He went no further than did the court in the case of Kincaid v. Walla Walla Valley Traction Co., 57 Wash. 334, 106 Pac. 918, 135 Am. St. 982. He says the evidence is conflicting and that he would not have found as the jury did. The cases pertaining to this subject are collected and differentiated in Brown v. Walla Walla, ante p. 670, 136 Pac. 1166.

If the trial judge in this instance had said no more than “the motion for a new trial is denied,” the question discussed in the” majority opinion would not have occurred. I do not understand that we have ever intended to go so far as to penalize the winner of a verdict because the trial judge disagreed with it; or, upon the same state of facts would have rendered a different verdict; or, where he talked too much or too little; or, apologized for his decision when passing upon the motion for a new trial. If judges were denied the right of salving the wounds of unsuccessful litigants, the work of trial judges would be robbed of much of its charm. I have gone over the evidence, and am satisfied that the plaintiff and his wife were mistaken, and Mr. Domer was not the man who sold them the mining stock, but that question in my judgment was for the jury.

The testimony with reference to the fortune teller was improperly admitted and calls for a reversal in any event. I disbelieve it in its entirety. It does not ring true. The trial judge disagreed with the jury as to the weight of the evidence. The positive testimony of the defendant and all of the associated facts' that were not susceptible of denial or disproof, when measured with the testimony of the respondents, makes it very improbable that a just verdict was rendered. There was ample ground for the exercise of the judge’s discretion, and had he granted a new trial, this court would have undoubtedly sustained him.

I concur in the result.