I dissent.
It conclusively appears from the record that the trial judge was of the opinion that a new trial should be granted, and that his sole reason for denying the same was his mistaken belief that he was without power so to do because of the fact that, there being a conflict in the evidence and he not having heard the testimony, he was unable to judge of the credibility of the witnesses as indicated by their demeanor upon the stand, and was therefore not in a position to consider the motion upon its merits. The court stated in denying the motion that it desired the appellate court reviewing its action to fully understand this as the reason for its conclusion, and it was on this precise understanding that the motion was denied.
As indicated in the prevailing opinion the court was mistaken in the conception of its duty and functions in passing upon the motion. It is the province and duty of the judge of the trial court in such a proceeding to inquire into the sufficiency of the evidence to support a verdict or finding, and to grant a new trial if in his judgment such evidence is insufficient to support the decision. This power and duty are in no manner affected or impaired by the fact *Page 139 that the trial was not had before him, and that his only knowledge of the facts in the case was obtained from the cold record. (Garton v. Stern, 121 Cal. 347 [53 P. 904]; Jones v.Sanders, 103 Cal. 678 [37 P. 649].)
Such motions are addressed to the sound discretion of the trial court. (Drathen v. Cohan, 139 Cal. 310 [73 P. 182].) The appellate court has not the power to act merely because of its belief that the evidence preponderates one way or the other; this power resides in the trial court; and appellant herein was entitled to have that court properly exercise its discretion. This duty cannot be passed on to us.
In considering the application the court below is not bound by the rule as to conflicting evidence, as is the appellate court. (Condee v. Gyger, 126 Cal. 546 [59 P. 26].) As before stated, that court was of the positive opinion that a new trial should be granted, and only denied the motion under the mistaken belief that its opinion as to the effect of the evidence having been reached by a mere perusal of the record, unaided by an opportunity to observe the demeanor of the witnesses while testifying, it was unable to give effect to such opinion, notwithstanding that thereby the defendant was practically deprived of all benefit arising from its right to make the motion.
Such is not the law. There is a very serious conflict in the evidence, and appellant was entitled to have the court properly exercise its discretion in determining the motion; and failure on its part to do so manifestly deprived the appellant of the benefit which would follow from such proper exercise of discretion. (Hughley v. City of Wabasha, 69 Minn. 245 [72 N.W. 78].)
It is not for us to say that from a consideration of the entire case, including the evidence, that in our opinion the act of the court in refusing to grant the motion was justified, irrespective of error. The constitutional provision has no application to such a situation.
Nor does the fact that an appellate court is not usually concerned with the reasons given by the trial court for its action in a given matter preclude it from reviewing such action where the reason given indicates an entire misconception of the trial court's duty and power. If in the present case the judge, in passing upon the motion, had said, "Gentlemen, this is a very voluminous record; I have had *Page 140 no time to read it; I have great confidence in the judgment and common sense of the jury; therefore I will deny the motion," it would not be questioned that these reasons, however excellent in themselves, would not justify the court's action, and that it would be the duty of this court to reverse the order. But such a case would be less aggravated than the present; for there it might well be that upon reading the testimony the court might justly deny the motion, whereas here his study of the record led him to the conclusion that he ought to grant it, but he nevertheless denied it for an obviously invalid reason.
No useful purpose would be served by a further discussion of this subject. In conclusion, however, it might be said that the error in abuse of discretion of the trial court had the effect of depriving the defendant of its substantial right of a trial by jury with all its incidents, one of which embraces the privilege of having the verdict controlled by the judge. "The very definition of 'trial court' carries with it the idea of superintendence of the judge." (Capitol Traction Co. v. Hof,174 U.S. 1 [43 L.Ed. 873, 19 Sup. Ct. Rep. 580, see, also, Rose's U.S. Notes]; Horne v. Rogers, 110 Ga. 362 [35 S.E. 715].)
For the reasons given I am of the opinion that the judgment should be reversed and a new trial granted.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 26, 1923.