Fritts v. N. York & N. England R. R. Co.

Dixon v. Pierce, 1 Root, 138; Sherwood v. Sherwood, 32 Conn., 2.

TORRANCE, J. This case was before us at a former term upon appeals taken by both parties. Fritts v. New York & New England R. R. Co., 62 Conn., 503. We then held that there was no error on the defendant's appeal, while on the plaintiff's appeal we held there was error, and granted a new trial. When afterwards the case came up in the court below the defendant claimed a right to a re-trial of the entire facts, but the court overruled that claim, and whether it erred in so doing is the one question presented by the present appeal. By reference to the record in the former appeal in this case it will clearly appear that none of the errors alleged by either party affected in any way the facts found and made part of the record. There had been no mistrial so far as the facts were concerned. The alleged errors related entirely to the action of the court below in applying the law to the facts found. In both of these respects the record referred to was precisely like the record in Zaleski v. Clark, 44 Conn., 218.

Under the old practice, for some years at least prior to 1882, such cases were constantly brought up by motions in error or by motions for a new trial at the election of the parties. Theoretically perhaps under that practice the appropriate method for bringing up such cases was by a motion in error. See the note to Zaleski v. Clark, 45 Conn., 405. In practice, however, and in favor of motions for a new trial, the distinction was in most cases neither insisted upon by the court nor observed by the parties.

When, however, the errors related to and affected the trial of the facts it was, as a rule, required that the case should be brought up, whenever it could be, by a motion for a new trial rather than by a motion in error. Ward v. Donovan, 45 Conn., 559. But, as before stated, for many years prior to 1882 cases wherein the errors alleged did not in any way affect the trial of the facts, were constantly brought up without objection by motions for a new trial rather than by mo

Fritts v. N. York & N. England R. R. Co.

tions in error, and if error was found a new trial was granted. The following are a few of the cases of this kind, selected at random from a few volumes of our reports. In the 15th Conn. the case of Wheeler v. Spencer. In the 42d Conn. the case of Langdon v. Strong, Brady v. Barnes, and State ex rel. White v. Ferris. In the 43d Conn. the cases of Merriam v. City of Meriden, Wheeler v. Wheeler, and Hitchcock v. Holmes. In the 44th Conn. the cases of Zaleski v. Clark, Mitchell v. Stanley, Sanford v. Gilman, and Buckingham v. Osborne. In the 45th Conn. the cases of Shepard v. New Haven & Northampton Co., Peters v. Stewart, Zaleski v. Clark, and Trowbridge v. Bosworth. In this last case the Supreme Court advised a new trial although the case appears to have been before it upon a motion in error. In all these cases there was a finding of facts by the court, committee, or auditor; the errors in all of them were not such as to affect this finding in any way, but consisted wholly in the application of the law to the facts found; and all of them except the last named case were brought up by motions for a new trial.

These, and numerous other cases of a like nature that might be cited, clearly show that this court under the old practice constantly heard such cases upon motions for a new trial and constantly advised new trials therein, although there had been no mistrial at all as to the facts found.

The present statute relating to appeals to the Supreme Court abolished these motions, substituting therefor one uniform method by way of appeal, and as a consequence abolished all the distinctions which had their origin in the differences between these motions. Under this statute, as before, this court still has the power in cases of the kind we have been considering, either to reverse the judgment merely or to grant a new trial; and it can now exercise this power unhampered by the form of the procedure adopted to bring the case up. General Statutes, § 1135.

Furthermore, under the old practice prior to 1882, this court, if it advised a new trial, could do so either with or without conditions and qualifications. Chambers v. Camp

Fritts v. N. York & N. England R. R. Co.

bell, 15 Conn., 427; Zaleski v. Clark, 45 Conn., 397. This power it still possesses under the present practice.

Under the former practice also, as a general rule, if a new trial was granted without qualification it meant a re-trial of the entire facts; and this was true, as appears by the cases cited, whether the errors did or did not affect the finding of facts. Zaleski v. Clark, 45 Conn., 397.

We think this still is and ought to be the rule. It is of great importance to all concerned that the rule upon this subject should be plain, simple, easily understood, and capable of ready application. The rule as recognized and enforced in the last named case is of this nature and ought to be adhered to.

It follows from what has been said that this court, when the former appeal in the case at bar was before it, had the power to reverse the judgment merely, or to grant a new trial with or without qualification. It chose however to grant a new trial, and the question is whether it granted such trial without qualification or not. For the answer to this question we must look to the language used by this court in granting the new trial.

The opinion in the former appeal, after disposing of one of the plaintiff's claimed errors, closes as follows:-" But we think that the lessened market value of the horses in consequence of the runaway was a proximate and legitimate element of damage. *** In this last particular there is error on the plaintiff's appeal, and a new trial is granted." It is manifest, we think, from this language that the effect and scope of the new trial hus granted is not expressly limited or qualified in any way. The error found and pointed out is indeed confined to one part of the case, but the scope and effect of the new trial is not in express words so confined. If, then, any such limitation exists it must exist by necessary implication. It is said that the court cannot have intended to grant a new trial as to the facts of the case, because they had all been fairly found already and were not affected by any of the claimed errors, and that these last could be corrected without requiring a re-trial of the facts.

Fritts v. N. York & N. England R. R. Co.

This was undoubtedly a good reason why this court might have contented itself with reversing the judgment merely, or with granting a qualified new trial in express words; but in the light of the cases herein before cited it cannot fairly be urged as a reason for annexing by implication to the new trial granted a qualified or limited scope. The language employed is without limitation or qualification. If such implication exists in this case it must also have existed in Zaleski v. Clark, and in all the other cases like it hereinbefore cited, and yet this court in those cases never recognized any such implication. We think the language used fairly imports a new trial without qualification or condition.

It is claimed, however, that certain cases previously decided by this court are in conflict to a certain extent with this view of the case. In Crane v. Eastern Transportation Line, 50 Conn., 341, this court held that the facts could not be retried, as it did likewise in Taylor v. Keeler, 51 Conn., 397, and in other cases that might be cited. But as these were all motions in error under the old practice, where the judgment had been reversed merely without granting any new trial, they have little or no bearing on the present question. The case of Butler v. Barnes, 60 Coun., 170, is the only case which can be claimed to support the plaintiff's contention. The action in that case was brought for the reformation of a deed, and, if reformed, then for damages for the breach of the covenants in the deed. A special finding of all the facts bearing upon the right to have the deed reformed was made and the court below decided that upon them, as matter of law, the plaintiff was not entitled to have the deed reformed. The finding was silent as to the amount of damage, if any, which the plaintiff had sustained in case he was entitled to have his deed reformed; and of course if error was found the case would have to be opened, at least to the extent of giving the plaintiff opportunity to prove the amount of his damage. On appeal to this court from that judgment it was held that the court below in deciding as above stated had erred, and a new trial was granted in the following language:"And that a new trial should be granted at which

Fritts v. N. York & N. England R. R. Co.

the Court of Common Pleas may reform the deed as herein indicated, and thereupon render judgment for damages for the breach of the covenants now in said deed contained." When the case came again before this court, (61 Conn., 391), it was held in effect that this language under the circum-] stances limited the new trial granted to a trial of the question of damages, and did not extend to the right to re-try the facts already found.

Now, whatever else this last case decided, it is quite certain that it did not overrule Zaleski v. Clark, 45 Conn., 397, nor was it intended in the opinion to say anything to weaken the force of the salutary rule in that case recognized. The case (51 Conn., 399) assumes the existence of the rule, for the question was whether or not the language used in granting the new trial brought the case within the rule. It was simply a question of construction, and under the circumstances the court construed the language as granting only a qualified new trial. We still think that construction was the proper one, although the language used may perhaps be susceptible of a different one. At all events we think the case at bar comes clearly within the rule and that the court below erred in refusing to permit a re-trial as claimed by the defendant.

The judgment appealed from is reversed and a new trial is granted.

In this opinion the other judges concurred.