Brunnabend v. Tibbles

246 P. 536, 76 Mont. 288, 1926 Mont. LEXIS 92

• Court: Montana Supreme Court
• Decided: May 15, 1926
• Docket: No. 5,866.
• Status: Published

Opinion

MB. JUSTICE MATTHEWS

delivered tbe opinion of the court.

This action was brought to recover damages for the destruction of plaintiff’s automobile in a collision with defendant’s car. The complaint alleged that the plaintiff was driving with due care and caution on his own side of the road in conformity with the rules of the road and that the collision was directly caused by defendant’s negligence in recklessly driving'on the wrong side of the road and failing to turn to the right as the two cars approached one another; that the value of plaintiff’s ear was $600. The answer denied the allegations of the complaint and affirmatively alleged negligence on the part of the plaintiff, resulting in damage to defendant’s car in the sum of $100, which affirmative allegations were denied by reply.

The case was first tried on September 1, 1924, which trial resulted in a verdict in plaintiff’s favor in the sum of $100. Plaintiff thereupon filed and served a memorandum of costs and then, without causing judgment to be entered on the verdict, moved the court to set aside the verdict and grant him a new trial on the ground of the insufficiency of the evidence to justify the verdict, and that the verdict was against law. The motion was granted. On the new trial plaintiff secured a verdict for $380, on which judgment was duly entered, and plaintiff thereupon served and filed his memorandum of costs and included therein the items of cost incurred on the first trial. Thereafter defendant moved the court to “retax” the costs by striking from the cost bill all items of cost incurred on the first trial. This motion was denied.

The defendant has appealed from the judgment but has assigned error only on the court’s action in denying his motion for the taxation of costs; on the giving of two certain instructions, and the refusal of an offered instruction. The evidence, in so far as its consideration is necessary to a determination of the question raised, will be set out later.

The first assignment raises several novel questions not heretofore presented to this court.

1. It is first suggested by counsel for defendant that plaintiff’s motion for a new trial should not have been made until after the entry of judgment and that, by moving for a new trial without having judgment entered, he waived his right to costs incurred on the first trial.

“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees.” (Sec. 9395, Rev. Codes, 1921.) A motion for a new trial is not directed against the judgment but against the verdict or decision on which a judgment might be based. Section 9397, giving the right to move for a new trial, does not refer to the judgment, but provides merely that “the former verdict or other decision may be vacated and a new trial granted, on application of the party aggrieved,” etc. At common law no judgment was entered in a cause until after any motion for a new trial was disposed of, and, in most jurisdictions, including those having statutes identical with or similar to our section 9397, above, the motion may be made as well before as after the entry of judgment (29 Cyc. 727; Spanigel v. Dellinger, 34 Cal. 476; Outcault v. Johnston, 9 Colo. App. 519, 49 Pac. 1058; Fisher v. Emerson, 15 Utah, 517, 50 Pac. 619; Deering v. Johnson, 33 Minn. 97, 22 N. W. 174; Tracy v. Altmeyer, 46 N. Y. 598), while in some jurisdictions it has been held that, where judgment has been entered, it is necessary to vacate the judgment before moving for a new trial. (Cook v. United States, 1 Greene (Iowa), 56; Merchants’ Bank v. Scott, 59 Barb. (N. Y.) 641; Smith v. Thornburgh, 7 Ind. 144.) It would seem, therefore, that plaintiff followed an approved course of procedure which .is, at least, not prohibited by our statute, andr consequently should not lose any right otherwise available to him.

2. It is next contended that, as plaintiff had a verdict in his favor set aside, he was not entitled to a new trial as a matter of right, but that it was accorded him as a favor and, therefore, he should have been required to pay the costs of the first trial as a condition precedent to the granting of the motion.

We have no statute directly authorizing a trial court to impose terms as a condition to the granting of a new trial; but in other jurisdictions having similar statutory provisions regarding costs, it is held that, in proper cases, statutes identical with our section 9789 (hereinafter quoted in part) are sufficiently broad to vest that discretionary power in the trial court. (Brooks v. San Francisco Ry. Co., 110 Cal. 173, 42 Pac. 570; Wolfe v. Ridley, 17 Idaho, 173, 104 Pac. 1014.) We are of the opinion that these decisions are based on sound reason and, therefore, hold that under the provisions of section 9789 a trial court has such discretionary power in proper cases.

Generally, the determination as to whether the court will grant or refuse a new trial lies within the sound legal discretion of the trial court (Kinna v. Horn, 1 Mont. 597; Caruthers v. Pemberton, 1 Mont. 111; Higley v. Gilmer, 3 Mont. 90; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33; White v. Barling, 36 Mont. 413, 93 Pac. 248), and where the motion is made on the ground that the verdict is against the evidence or the insufficiency of the evidence to justify the verdict or other decision, the granting of a new trial is held to be a matter of favor rather than right (Jackson v. Thurston, 3 Cow. (N. Y.) 342; see, also, Walsh v. Conrad, 35 Mont. 68, 88 Pac. 655; Ettien v. Drum, 35 Mont. 81, 88 Pac. 659); in such cases “the true rule is to charge the party obtaining the favor with the costs of such proceedings as are vacated for that purpose.” (Ellsworth v. Gooding, 8 How. Pr. (N. Y.) 1; Wolfgram v. Town of Schoepke, 123 Wis. 19, 3 Ann. Cas. 398, 100 N. W. 1054; Corbett v. Great Northern Ry. Co., 28 N. D. 136, 148 N. W. 4; 3 Am. & Eng. Ann. Cas., p. 398.)

However, the question of imposing terms, in cases wherein the trial court has discretion, is also one of discretion and should be governed by the circumstances of the case; generally, terms, such as the payment of costs, are imposed only when the necessity for a new trial arose through some fault on the part of the moving party, or where the motion is made on the ground of newly discovered evidence (14 Eney. PI. & Pr., p. 944); and s'ieh imposition is entirely illogical where justice demands that a verdict be set aside for a mistake made by the jury for which the moving party is in nowise responsible. (Rothenberg v. Brooklyn Heights Ry. Co., 135 App. Div. 151, 119 N. Y. Supp. 1001.)

Again, where the moving party is entitled to a new trial as a matter of right, the court has no discretion (14 Ency. PI. & Pr., p. 930), and “where the verdict is perverse, that is, so clearly against the weight of the evidence, or contrary to the evidence, as to create a presumption of mistake or improper motives of the jury, a new trial should be granted without imposing costs.” (Corbett v. Great Northern Ry. Co., above; see, also, Pierson v. Thompson, 4 Kan. App. 173, 45 Pac. 944; Connor v. Goodwillie, 120 Wis. 603, 98 N. W. 528.) Such a verdict is, in law, a verdict resulting from passion and prejudice, and whether this is so or not is determined solely from an examination of the evidence and reference to the amount of the verdict. (Harrison v. Sutter, 116 Cal. 156, 47 Pac. 1019.)

While the question of costs in such a ease has not been considered by this court, we have held that a verdict rendered in arbitrary or capricious disregard of unimpeached testimony, is one against law entitling the unsuccessful party to a new trial (Harwood v. Scott, 65 Mont. 521, 211 Pac. 316), and a verdict contrary to the undisputed evidence should be promptly set aside. (Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 Pac. 652.)

The cases heretofore cited deal with verdicts against the party moving for a new trial, but the same rules apply to verdict for inadequate damages, where there is a legal measure of damages (Watson v. Harmon, 85 Mo. 443; Tauton Mfg. Co. v. Smith, 9 Pick. (Mass.) 11; Chambers v. Collier, 4 Ga. 193; Bacot v. Keith, 2 Bay (S. C.), 466; Potter v. Swindle, 77 Ga. 419, 3 S. E. 94), or where the verdict is for less than the sum admitted to be due, either in pleading or testimony (Coffman v. Brown, 7 Colo. 147, 2 Pac. 905; State v. Wilson, 90 Ind. 114; Williams v. Reynolds, 86 Ill. 263), or where the verdict is for less than the amount proved. (Hallberg v. Brosseau, 64 Ill. App. 520; Ziegler v. Osborn, 23 Kan. 464.) And in this state the question of the right of a plaintiff to a new trial on the ground of the inadequacy of the award made by the jury, was considered in Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 111 Pac. 384, wherein, after citing the section on new trials found in the Code of Civil Procedure, Mr. Justice Holloway, speaking for the court, said: “Let us assume that there is not any conflict whatever in the evidence as to the amount which the plaintiff in a given ease is entitled to recover, if he is entitled to recover at all, and the only conflict arises upon his right to recover. If then the jury in such a case decides in favor of his right to recover, but returns a verdict for an amount less than the uneontradieted evidence shows he is entitled to receive, may he then have a new trial upon the ground that the evidence is insufficient to sustain the verdict? In Landsman v. Thompson, 9 Mont. 182, 22 Pac. 1148, this court answered the query in the affirmative, but gave little attention to the question of practice, apparently assuming the correctness of the position.” The learned writer of the opinion then calls attention to the difference in phraseology between section 6794 (now 9397) respecting civil actions, and section 9350 (now 12048) providing for new trials in criminal cases, and declared that there is no distinction between the two provisions and that “a verdict which is clearly against the evidence may be set aside upon the ground that the evidence is insufficient to support it.”

In the case at bar the evidence adduced on the first trial is not before us, but, in its order denying the motion for the taxation of costs, the trial court said: “The evidence, as we recall it, was such that the plaintiff ought to have been entitled to at least $375, or the defendant approximately $100. The jury, however, brought in a verdict of $100. We fail to appreciate then, in what way the plaintiff was responsible.” We assume the correctness of this statement. Such being the condition of the record, the verdict was clearly “against law” and the plaintiff was entitled to a new trial as a matter of right and not of favor; it therefore follows that the trial court bad no discretion to grant or deny the motion and, consequently, no authority to impose upon plaintiff the payment of costs of the first trial as a condition precedent to the granting of the motion.

3. Defendant nest asserts that there is no statute under which plaintiff is entitled to recover the costs of the first trial, and that in the absence of statutory authority they cannot be recovered of him. If this be true, it is equally true that the prevailing party on a new trial is not entitled to recover the costs of the first trial, no matter which party applied for a new trial nor under what circumstances or on what grounds the new trial was granted, for the only provisions found in our statutes applicable to the case at bar, are as follows:

Section 9787, Revised Codes, 1921: “Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: * * * 6. In an action for the recovery of money or damages, exclusive of interest, when the plaintiff recovers over-fifty dollars” etc.

Section 9788: “Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the action mentioned in the next preceding section” etc.

Section 9789: “In other actions than those above mentioned, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court ’ ’ ‘etc.

If the provisions of these sections are taken literally, it would seem that no provision was made by the legislature for the recovery of costs except on the trial in which judgment is finally rendered and that that body did not contemplate that in any lawsuit there would be more than one trial in the district court.

Costs eo nomine were not allowed at common law (State v. Stone, 40 Mont. 88, 105 Pac. 89; Butte Northern Copper Co. v. Radmilovich, 39 Mont. 157, 101 Pac. 1078, and are recoverable only when specifically provided for by statute (Jones v. Great Northern Ry. Co., 68 Mont. 231, 37 A. L. R. 754, 217 Pac. 573; Colusa M. & S. Co. v. Barnard, 28 Mont. 11, 72 Pac. 45; Spencer v. Mungus, 28 Mont. 357, 72 Pac. 663); the statutes providing therefor must be strictly followed (First Nat. Bank v. Larsen, 72 Mont. 400, 233 Pac. 860), and strictly construed against the party asserting their applicability to his ease. (State ex rel. Liddell v. District Court, 33 Mont. 529, 85 Pac. 367; State v. Stone, above; Colusa M. & S. Co. v. Barnard, above; Jones v. Great Northern Ry. Co., above.)

It is clear that, on the first trial, had plaintiff been satisfied with the verdict rendered and had judgment entered thereon, he would have been entitled to his costs under section 9787 above. No case has been called to our attention, nor have we been able to find one in this or in any other jurisdiction wherein the party ultimately successful has been deprived of his costs on a first trial wherein the judgment and verdict were set aside on motion of the defeated party, on the ground that such statutory provisions as ours do not provide for the recovery of such costs, and, in such cases, we are of the opinion that the provisions of section 9787 are sufficient to entitle such successful party to recover all of Ms costs of the action, whether incurred in one or more trials wherein he was not at fault in incurring the additional costs. Such costs are held to be covered by a like provision of the California Code. (Senior v. Anderson, 130 Cal. 290, 62 Pac. 563.)

"What, then, is the situation of a plaintiff who has, it is true, secured a verdict in his favor, but in such an amount as not to compensate him for the damages suffered and proved? Must he either accept the inadequate award merely because the jury has spoken, or, if he would seek a just verdict on a new trial, suffer the loss of the amount he has expended in costs on the first trial, which might, conceivably, equal or exceed the difference between the unjust verdict and a just one? We think not.

One who has suffered an injury at the hands of another, is entitled to be made whole in an action between them, in so far as it is within the power of the court to do so. It is true that, aside from the actual damages suffered, his recovery must be authorized by statute, and in any event such a person will be tbe loser by tbe amount of bis attorney’s fees, for our statutes (except in certain cases) do not authorize tbeir recovery; but as to tbe costs we are of the opinion that the statutory provisions above quoted are sufficient to warrant the recovery of all costs to which such successful party has been put. A plaintiff, under such circumstances, is as much “the party aggrieved” as is a defendant against whom ■ an unjust verdict has been rendered “against the law,” and is entitled to be placed in the same position as a wholly unsuccessful party. When ultimately successful in securing a just verdict the successful party is entitled to recover from the unsuccessful adversary all just costs of suit, whether incurred in the first. or the second trial. (Den ex dem. Johnson v. Morris, 8 N. J. L. 213; Gray v. Gray, 11 Cal. 341; Stoddard v. Treadwell, 29 Cal. 281; 11 Cyc. 251.)

It is true that a plaintiff might secure a new trial on the ground that the verdict, on its face, was against the law in this particular, where as a matter of fact, known to the plaintiff but not to the court, the verdict awarded plaintiff all he was entitled to if all of the facts were known; on a new trial the facts might be fully brought out and a verdict rendered for no more than was awarded the plaintiff on the first trial; under such circumstances it would be unjust to require the losing party to pay the costs of both trials.

In our opinion, if section 9789, above, is broad enough to grant discretion to the trial court to impose the payment of costs as a condition precedent to the granting of a new trial, as above pointed out, and we hold that it is, it is also broad enough to grant such discretion to the trial court in an instance such as this, which does not strictly fall within the provisions of section 9787, and, on a second trial, in the exercise of such discretion, the trial court could properly refuse to grant the plaintiff the costs of the first trial. Such is practically the holding of the supreme court of Washington when it said: “Whether the costs of a prior trial are to be taxed in favor of the prevailing party on a final determination of the cause, de pends upon the circumstances of tbe ease.” (Young v. Travelers’ Ins. Co., 125 Wash. 118, 215 Pac. 383.)

4. Plaintiff’s second assignment is that the court erred in giving the following instruction to the jury: “You are instructed that a person driving an automobile along a public highway who sees a ear approaching on the wrong side of the road, has the right to assume that the driver of the other ear will observe the law of the road and seasonably move over to its right so as to pass without interference, and he may proceed on this assumption until he sees, or in circumstances ought to see, that it is unwarranted.” To this instruction, when offered by the plaintiff, defendant objected on the ground that “it is an incorrect statement of the law in that it assumes as an established fact that the defendant’s ear was on the wrong side of the road. ’ ’

The instruction is merely an abstract statement of the law applicable to such a situation, M’ithout reference to the parties to the action; no jury would be misled into the belief that the court was, by such an instruction, advising it that the defendant’s car was on the wrong side of the road, and therefore the instruction is not open to the objection made to it at the time of the settlement of the instructions.

5. Defendant next predicates error upon the court’s action in giving an instruction as to the duty of a person finding himself in a position of imminent danger, but the only objection made to the instruction at the time it was offered, is that “it is an incorrect statement of the law and not applicable to the facts and circumstances in this case and would have a tendency to mislead the jury.”

As the instruction was clearly “applicable to the facts and circumstances in this ease” the objection amounts only to an assertion that the instruction “is an incorrect statement of the law” and “would have a tendency to mislead the jury,” neither of which phrases meets the requirements of section 9349 of the Revised Codes of 1921, requiring the objector to specifically point out wherein the proposed instruction is objectionable.

Other grounds of objection were urged in defendant’s brief and in oral argument, but we are specifically prohibited by the provisions of the above section from considering any objection not raised in the trial court. (Stokes v. Long, 52 Mont. 470, 159 Pac. 28; Lundquist v. Jennison, 66 Mont. 516, 214 Pac. 67; Schumacher v. Murray Hospital, 58 Mont. 447, 193 Pac. 397; State v. Dougherty, 71 Mont. 265, 229 Pac. 735.)

6. Defendant’s last specification of error is based upon the court’s refusal to give an offered instruction, which opened with the phrase, “Inasmuch as the collision occurred on defendant’s side of the road,” etc. Unless it was an admitted fact that such was the case, the instruction was properly refused as an invasion of the province of the jury.

In this regard the testimony was, briefly summarized, as follows: The plaintiff testified that he was on his own, or the right, side of the road and that the defendant was approaching on the wrong side of the road; that he kept to the right until it became apparent to him that the defendant was not going to turn to the right and then, as there was no room to go to the right of defendant in an attempt to avoid the collision, he turned sharply to the left, when he was struck; that, after the collision, defendant’s car was in the center of the road; while the occupants of defendant’s ear testified that defendant was driving in the center of the road and, as plaintiff approached, he turned to the right and drove into the ditch on that side of the road and was there struck by the plaintiff’s car, other witnesses testified to marks and tracks in the road made by the two cars.

Counsel for defendant assert that “the physical facts demonstrate for a certainty that these cars could not have struck in the places where all the witness say they struck, except that they were traveling in “a diagonal course across the road.” This assertion is controverted by counsel for plaintiff. The jury viewed the premises as well as saw the witnesses on the stand, and, evidently, took plaintiff’s version of the occurrence.

It is patent, therefore, that the evidence was sharply conflicting and confusing, both as to the exact place and the proximate cause of the collision, which questions were for the determination of the jury; hence the offered instruction, if given, would have invaded the province of the jury, and no error was committed in its refusal.

No substantial error appearing in the record, the judgment is affirmed.

Affirmed.

MR. Chief Justice Callaway and Associate Justices Holloway, GaleN and Stare concur.