Smith v. Grover

Cassoday, J.

The setting aside of a verdict and the granting of a new trial is very much in the discretion of the trial court. This being so, the action of such court in such matters will not generally be disturbed unless it appears affirmatively that there has been an abuse of such discretion. This is so whether such action is based upon newly discovered evidence, misdirection to the jury, misconduct of the jury, or any supposed injustice. Smith v. Champagne, 72 Wis. 480 , and cases there cited. The only exception to this rule is when it affirmatively appears upon the record that such' action of the court is based upon a misapprehension of the law. When that so appears, then the error becomes one of law, thus obviating the necessity of determining whether there has been any such abuse of discretion. Mullen v. Meinig, 68 Wis. 410 , and cases there cited.

Here the trial court set aside the verdict and granted a new trial on the grounds of misdirection to the jury and newly discovered evidence. The misdirection referred to seems to have consisted in charging the jury, in one part of the charge, in effect, that if the plaintiff, under certain circumstances stated, “ looked to Mr. Lewis for payment of his services, or to see that he was paid therefor,” then he could not recover, whereas the instruction, it is claimed, should have been,' in effect, that if the plaintiff, under the circumstances stated, “ agreed that he "would look to Mr. Lewis for payment for his services,” then he could not recover. The difference consisted in exonerating the defendant in the one case from liability merely because the plaintiff “looked to Lewis” for his pay, and in the other because he “ agreed ” so to look. We are not prepared to say that the jury were not thereby misled, as presumed by the trial court.

Nor are we prepared to hold that the newly discovered *175 evidence was merely cumulative, in the sense that would make it an abuse of discretion to set aside the verdict and grant a new trial upon that ground. The plaintiff’s right to recover depended very much upon the authority of Mr. Lewis to employ him. The only testimony tending directly to prove such authority was that of Mr. Lewis. The newly discovered evidence consists of another witness, who swears that he was present and heard the defendant give Mr. Lewis such authority. This.court has held that where the newly discovered evidence tends to prove a distinct fact not testified to at the trial, although other evidence may have béen introduced by the moving party tending to support the same ground of claim or defense to which such fact is pertinent, it is an abuse of discretion not to set aside the verdict and grant a new trial upon that ground. Wilson v. Plank, 41 Wis. 94 ; Finch v. Phillips, 41 Wis. 387 . Certainly where, as here, the verdict is set aside and a new trial granted, the newly discovered evidence may be much less distinct and independent without any abuse of such discretion. In view of the evidence being so evenly balanced on the question of. such authority, the inconsistent statements in the charge, the manifest opinion of the trial judge that the jury had been misled and that injustice had been done, and the broad discretion possessed by the trial courts in such matters, we must hold that there was no abuse of discretion in setting aside the verdict and granting a new trial.

We have no doubt of the power of the court in its discretion, upon a proper showing made, to extend the time for the payment of the costs mentioned in the order of July 5, 1888. The statute expressly gives such power, even “ after the time limited by or in pursuance of the statute, or by any order of court, has expired.” Sec. 2831, R. S. This court has frequently sanctioned its exercise. Whereatt v. Ellis, 68 Wis. 72 , 70 Wis. 207 ; Sutton v. Wegner, 72 Wis. *176 298 . Here the showing made was, in our judgment, sufficient to authorize the making of the order of September 29, 1888. Counsel urge that the time here sought to be enlarged was fixed by a rule of court (Circuit Court Rule XII), and not by statute or order of court, and hence did not come within the section cited. But the circuit court rules were authorized by and made “ in pursuance of the statute.” Sec. 2413, R. S. Hence the time so limited was by virtue of the rule made in pursuance of the statute and by the order of the court. As indicated in one of the cases cited above, it is the duty of the trial court, sitting as a court of conscience in such matters, to do or secure substantial justice between the parties, under all the circumstances. Whereatt v. Ellis, 70 Wis. 215 . To do that, where a party is in default, having a good and conscionable cause of action or defense, thus excused and presented, is to give him a trial or hearing upon the merits, upon such terms and conditions as to do no injustice to the opposite party. Ibid. To our minds this is just what the trial court here sought to do. It follows from what has been said that the defendant’s motion for judgment was properly denied.

By the Court.— The respective orders of the superior court of Milwaukee county are affirmed.