Turner v. First Nat. Bank of Bancroft

ADAIR, District Judge. This is an action by plaintiff against defendant to recover a definite sum of money alleged to be due plaintiff from defendant on an oral contract entered into between said parties. The case was tried by a jury. A motion for a nonsuit was denied, and at the conclusion of the introduction of evidence, a motion for a directed verdict for defendant was also overruled and denied. The jury returned a verdict for plaintiff for the *600 amount claimed and in apt time defendant presented its motion to set aside the verdict and the judgment entered thereon, and for a new trial. This motion was predicated upon two grounds, which, briefly stated, were in effect: (1) Insufficiency of the evidence, in that there was no competent evidence and no substantial conflict in the evidence, and the evidence as a whole conclusively shows that the verdict had been rendered under the influence of passion and prejudice; (2) errors in law occurring at the trial, namely, error of the court in denying the motions for nonsuit and for a directed verdict. The court, without specifying any reasons therefor, duly ordered that the motion for a new trial be granted, and this appeal is prosecuted from that order. The record discloses no errors committed by the trial court, during the trial of said cause, prejudicial to either party. There was just one simple issue involved and submitted to the jury. Counsel in their respective opening statements and in the presentation of the evidence entirely agreed as to this issue and directed their efforts and confined their testimony to its elucidation. The instructions of the court clearly defined said issue and limited the jury to the consideration of that single matter of controversy. Plaintiff testified to the terms of a certain oral contract, which he alleged was made by him with defendant. In this contention he was partially corroborated by one other witness who had no interest in this cause. On the other hand, five of the directors of defendant corporation, and another disinterested witness, flatly contradicted plaintiff and positively testified to an entirely different contract. Notwithstanding the fact that the witnesses stood, numerically at least, three to one favoring defendant, the jury returned a verdict for plaintiff. Appellant contends that the grounds specified in the motion for a new trial were insufficient in that there was a substantial conflict in the evidence, and no showing made that the jury was actuated by passion or prejudice. Respondent urged that a conflict in the evidence must be real *601 and where the testimony of one witness is contradicted by all the ' other testimony and by the physical facts there is no conflict, citing several eases which possibly support such a theory. In the instant case, however, we think there was a real and positive conflict in the testimony, and that the trial court correctly denied the motion for a nonsuit and also the motion for a directed verdict. We conclude, that in this particular case, the grounds specified in the motion for a new trial were broad enough in their terms to authorize the court to act thereon and to determine the right of defendant to the relief prayed for. C. S., sec. 6893, expressly authorizes the trial court to set aside a verdict upon its own motion, if there has been a plain disregard of the evidence and a miscarriage of justice. We cannot determine from the record upon what particular ground the court relied in granting this motion. No error occurred if any of the grounds specified in the motion existed, or if the court believed that the verdict of the jury was not in accord with the great weight of the evidence, and that the ends of justice would be subserved by vacating the same. In Say v. Hodgin, 20 Ida. 64, 116 Pac. 410, this court said: “The trial judge sees the witnesses on the witness stand, observes the manner of their testifying, notes their apparent candor or fairness, or the want of it; hears the argument of counsel, and, in short, is in possession of many sources of information valuable in an inquiry as to whether justice has miscarried or not, and which cannot be made to appear in the record of the ease which comes to the appellate court; and appreciating such fact, appellate courts have so frequently held, that it may be announced as settled law, that trial courts possess a discretion to be exercised wisely in the granting or refusal of new trials, and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.” *602 This court has repeatedly held that, unless there affirmatively appears to have been a clear abuse of discretion it will not disturb an order of the trial court granting a new trial. (Jones v. Campbell, 11 Ida. 752, 84 Pac. 510; Buckle v. McConaghy, 12 Ida. 733, 88 Pac. 100; Wolfe v. Ridley, 17 Ida. 173, 104 Pac. 1014; Penninger Lateral Co. v. Clark, 20 Ida. 166, 117 Pac. 764; Baillie v. City of Wallace, 22 Ida. 702, 127 Pac. 908; Seamons v. Davis, 34 Ida. 393, 201 Pac. 716.) That a trial court abused its discretion, in effect, means that such court exceeded all bounds of reason and acted arbitrarily and without warrant in law, considering all of the circumstances of the particular case. When it fairly appears that the trial court has exercised a legal and not an arbitrary discretion, in keeping with the spirit of the law, and in such manner as will promote rather than impede or defeat the ends of justice, it must be held, on appeal, that the discretion vested in that court has been properly exercised and that there has been no abuse of such discretion. From an examination of the record we find no evidence that the court below acted without sufficient cause in vacating the verdict and judgment based thereon and in granting a new trial, and its order is affirmed, with costs to respondent. William A. Lee, C. J., Wm. E. Lee, Givens and Taylor, JJ., concur. (July 31, 1926.)