Casterline v. Young

VAN DYKE, P. J.

This action was brought by plaintiffs to recover for damage suffered in a traffic accident. Trial to a jury resulted in a defense verdict. Plaintiffs moved for a new trial upon all statutory grounds. A new trial was granted and defendant appeals. Plaintiffs have cross-appealed from the judgment entered upon the verdict.

After submission of the motion for a new trial, the court filed a document entitled “Memo on Motion for a New Trial” wherein the court stated:

“Plaintiffs have filed herein their Motion for New Trial upon all of the statutory grounds and in particular have devoted much of their argument to claimed misconduct upon the part of defense counsel while arguing the case to the jury wherein reference was specifically made to the fact that the Defendants carried liability insurance in a specified amount.

[671]

It is unfortunate that the subject of insurance crept into the case at all and no doubt it was due, to some extent at least, to the sparring back and forth between counsel in their arguments.

“However, this injected issue, standing alone, would not appear to be too important although it could have had some effect with the jury, but entirely separate and apart therefrom arises in the Court’s mind a more serious question as to the weight, sufficiency and probative force of the evidence, including the evidentiary value of the physical facts, to justify the verdict which the jury returned.

“Under such circumstances, it becomes the duty of the Court to set aside such verdict and grant a new trial.

“Therefore, the motion will be granted, and counsel may prepare an order accordingly.”

On the day the foregoing document was filed, the clerk entered the following in his minutes:

“Plaintiffs’ motion for a new trial in the above entitled action having been heretofore argued, submitted and by the Court taken under advisement and now the Court having duly considered the evidence and being fully advised in the premisese finds [files] its opinion and ordered that said motion for a new trial be, and the same hereby is granted.”