Hardin v. Pennington

Hugh M. Bland, Justice. This is an appeal from an order of the trial court granting a new trial. The case was an action for personal injuries brought by appellee against appellant and resulted in a verdict for appellant. Appellee, in due time, filed her motion for a new trial. On June 22, 1965 the motion for a new trial came on for hearing and after argument of counsel, the court granted the motion. Hence, this appeal. Ark. Stat. Ann. § 27-1901 (Repl. 1962) states as the first ground for granting a new trial: “Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.” In Texas & Pacific Ry Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978, at page 120, this court said: “This matter of approving or rejecting a verdict of the jury by the trial court is one that must appeal to judicial discretion. Discretion, of course, is opposed to arbitrary action, and is not controlled or interfered with by this court upon appeal. Ordinarily, this power of the court to review or consider judgments rendered by juries is called into action by a motion for new trial. The court, however, may in the exercise of discretion, act upon a verdict at any time during the session of the court at which it was rendered.” In 66 C.J.S., New Trial, $ 115, p. 328, it is said: “With respect to a civil action tried before it, a court of general jurisdiction has inherent power, in the absence of statute to order a new trial on its own motion, even though an. application therefor on other grounds has been made by a party and is pending. Thus the inherent power to set aside a verdict or judgment and grant a new trial rests in a trial court or a trial judge, to be exercised in the interests of justice,”. In Parmentier v. Ransom, 169 P. 2d 883 (Ore. 1946) it was held: “In the furtherance of justice the trial court is given a wide latitude in granting new trial on its own motion to correct errors of law, even when no exception has been taken upon the trial.” In Anderson v. State, 43 P. 2d 474, (Okla. 1935) the Oklahoma Supreme Court held: “In granting new trial on own volition, judge does not usurp province of jury where verdict discloses that jury misunderstood plain instructions of court. ’ ’ The trial judge, in granting a new trial, explained in detail that he had refused to give the appellee’s requested Instruction No. 5 and he did not think .that the giving of any other instruction properly presented the issues. It is sufficient to say that the court in its sound discretion'exercised its inherent power to grant a new trial; and that it is not shown that he acted arbitrarily in this case. Affirmed. Harris, C. J., dissents. Amslbr, J., concurs.