This appeal is from an order granting a new trial upon a motion therefor made by respondent after a verdict in favor of appellants.
The motion for a new trial was based upon three grounds: (1) Insufficiency of the evidence to justify the verdict; (2) the verdict is against the law; and (3) error at law occurring at the trial.
A hearing was had on the motion on November 22, 1930. The trial judge took the motion under advisement and thereafter, on December 20, 1930, addressed a letter to counsel for both parties stating that,
"After considering this matter at some length, I have reached the conclusion that I placed an unreasonable burden upon the plaintiff in my instructions, and that a new trial must be granted." *Page 17
Notwithstanding the reasons given in the foregoing letter, on December 29, 1930, the trial judge made a general order on the motion for a new trial, reading:
"IT IS HEREBY ORDERED that the motion of the plaintiff for a new trial be and the same is hereby granted, to which the defendants except and their exceptions are allowed. Motion for judgment n.o.v. denied."
On the same day, the trial judge refused to enter an order presented by appellants granting motion for a new trial on the ground that the court erred in giving certain instructions.
[1] Although the court may have been in error in intimating that he had given instructions imposing an undue burden upon respondent, that question is not now reviewable.
In Shook v. Hughes, 146 Wn. 134, 262 P. 142, a similar situation existed. We there reviewed certain cases for the purpose of making the law certain in such matters. We reaffirmed the rule in Morehouse v. Everett, 136 Wn. 112, 238 P. 897, and restricted a pronouncement made in Crowl v. West Coast SteelCo., 109 Wn. 426, 186 P. 866.
In the Shook case, we decided that, where the formal order granting a new trial does not affirmatively show that it was based only on one ground, it cannot be claimed on appeal that other grounds assigned in the motion were not considered by the court, notwithstanding the court had in a memorandum opinion stated its ground for its decision. To the same effect is our recent decision in McKay v. General Accident, Fire and LifeAssurance Corporation, Limited, 163 Wn. 92, 299 P. 987.
Under these recent cases, the order must be and is affirmed.
TOLMAN, C.J., MAIN, BEALS, and MILLARD, JJ., concur. *Page 18