# Johnson v. Howard

> Washington Supreme Court · October 22, 1954 · 45 Wash. 2d 433

URL: https://www.frixlaw.com/law-library/cases/9559758

## Case

- **Full name:** Richard F. Johnson Et Al., Appellants, v. Ted Howard Et Al., Respondents
- **Court:** Washington Supreme Court
- **Decided:** October 22, 1954
- **Citations:** 45 Wash. 2d 433; 275 P.2d 736; 1954 Wash. LEXIS 432
- **Precedential status:** Published
- **Opinion:** Dissent by Olson
- **Judges:** Hamley, Olson
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9559758

## Opinion text

Olson, J.
(dissenting)—I cannot agree with the opinion of the majority. As they state, it is well established that we will not reverse an order granting or denying a new trial, except for a manifest abuse of discretion. Also, a much stronger showing of an abuse of discretion will be re-required to set aside an order granting a new trial than one denying it. McUne v. Fuqua, 42 Wn. (2d) 65, 77, 253 P. (2d) 632 (1953). With those propositions in mind, I am of the opinion that we should not reverse the order in this case.
Examination of the evidence of damage to plaintiff husband shows no abuse of discretion in granting a new trial upon the ground that the verdict was excessive. There was no evidence of his earnings. It was shown that he went to work the next day after the alleged injuries occurred, and *452 that he had suffered no loss of income up to the time of trial. It is not shown how long it will be necessary for him to continue his treatments. The only evidence upon the extent of his disability placed it at fifteen per cent. It is not shown that he has been or will be deprived of his ability to keep his job or to enjoy his recreational activities. Further, I do not think we should use the amount demanded by plaintiff in the prayer of his complaint as any gauge in considering the soundness of this verdict in his favor.
The trial court concluded:
“9. Based upon the appearance, demeanor and testimony of each of the parties plaintiff to this action, based upon the medical testimony and record of special damages incurred by the parties plaintiff, and based upon the twenty-seven years experience I have had on the bench, I do not think I have ever received a verdict that I thought was so unconscionably excessive and so far beyond the real claim of damages, as was returned in this case;
“10. Based upon the entire proceedings in this case and the foregoing reasons set forth herein, it is the opinion of this Court that substantial justice has not been done in this case.”
This demonstrates that the trial judge had the entire case in view. He was convinced that substantial justice had not been done. He was impelled to grant a new trial for the reasons separately stated in the order, and also because of their cumulative effect. In my opinion, the latter is of controlling importance. There were numerous occurrences at this trial which should not happen at a trial, and probably would not reoccur at a new trial of this case. Some of them are not approved by the majority. Considering all of them together, I doubt that we can say that their cumulative effect upon the verdict is not apparent, particularly in view of the expressions of the trial court to the contrary.
For us to sustain the verdict upon the evidence and circumstances of this case, leaves no room for discretionary action by the trial courts upon motions for a new trial. We should not thus invade their province in the performance *453 of this important function lodged with them by the legislature and by our rules.
The order for a new trial in this case should be affirmed, so that the case may be submitted to a jury free from the objectionable matters now inherent in this verdict.
Schwellenbach and Hill, JJ., concur with Olson, J.
December 14,1954. Petition for rehearing denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9559758. Public record. Not legal advice.