Hornback v. Missouri-Kansas-Texas Rld. Co.

395 P.2d 379, 193 Kan. 395, 1964 Kan. LEXIS 381

• Court: Supreme Court of Kansas
• Decided: July 14, 1964
• Docket: 43,701
• Status: Published

Opinions

The opinion of the court was delivered by

Wertz, J.:

Plaintiff (appellee) Perry D. Hornback brought this action against defendant (appellant) Missouri-Kansas-Texas Railroad Company, a corporation, under the provisions of the Federal Employers Liability Act seeking damages for personal injuries claimed to have been sustained by plaintiff by reason of the alleged negligence of the defendant. Issues were joined between the parties in the action and the case was tried to a jury which returned its answers to certain special questions submitted to it by the court and a general verdict in favor of the defendant. Plaintiff filed a motion for a new trial setting forth seven specific grounds of alleged error committed in the trial. The trial court, after hearing arguments of counsel and reviewing the briefs filed by the respective parties, granted a new trial on its own motion and upon the motion filed by plaintiff. This appeal is from the trial court’s order granting a new trial.

The determinative question is whether or not the trial court abused its discretion in the granting of a new trial in the case. This question was answered in the case of Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440, where it is stated:

‘“VÚien a trial court sets aside a verdict and grants a new trial generally without specifying any reasons therefor the supreme court has no means of passing upon the sufficiency of the grounds on which its decision is based and hence cannot hold that its action with respect thereto amounts to an abuse of judicial discretion or constitutes reversible error.”- (Syl. ¶2.)

In the mentioned case this court reviewed and analyzed many of our cases and it is not necessary to repeat the citations here.

No reasons were given by the trial court for sustaining the motion for a new trial, and we might add, if they were requested, the record does not show it. It will not do, as defendant suggests, to limit those reasons to grounds stated in the motion. The books are full of cases recognizing that trial courts have authority to grant new trials on their own motion. Hence, when a new trial is granted generally it cannot be assumed a court in granting the new trial restricted its consideration of the motion and its decision with respect thereto to grounds of the motion alone. The presumption is that in the instant case the trial court performed its duty, exercised its independent judgment and determined whether the verdict should be approved. Under all our decisions (Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; Myers v. Wright, 167 Kan. 728, 208 P. 2d 589), if dissatisfied with the verdict, the trial court not only had authority but it was its duty to set the verdict aside and grant a new trial. For all we know the verdict may have been set aside and the motion sustained for any of several reasons. In any event, we are in no position to decide what those reasons were, and the defendant has failed to clearly establish any error in the trial court’s ruling with respect thereto.

In Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, we stated:

“When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.” (Syl. f 2.)

See, also, Bishop v. Huffman, 175 Kan. 270, 274, 275, 262 P. 2d 948; Crockett v. Missouri Pacific Rld. Co., 188 Kan. 518, 363 P. 2d 536.

This court is committed to the general rule that an order of a trial court allowing a motion for a new trial will not he reversed unless this court is satisfied the trial court’s action was wholly unwarranted and clearly amounted to an abuse of discretion. Further, the granting of a motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appeal unless it can be said that the party complaining has clearly established error with respect to some pure, simple and unmixed question of law. (Allen v. Urban Renewal Agency, 192 Kan. 682, 390 P. 2d 1020.)

We are of the opinion the defendant has fallen far short of the requirement to show abuse of discretion on the part of the trial court in vacating the jury’s verdict and granting the plaintiff a new trial, and we are required to affirm that order.