[82 Ariz. 97] Moore & Romley and Anthony T. Deddens, Phoenix, for appellants.
McKesson & Renaud and J. Gordon Cook, Phoenix, for appellee.
UDALL, Chief Justice.
This is an appeal by Tommy Marruffo and Russell Badley, defendants-appellants, from an order of the superior court granting Stanley C. McDonald, plaintiff- appellee, a new trial and from an order of the court denying defendants' motion to vacate such order. Hereinafter the designation used in the lower court, i. e., plaintiff and defendants, will be used.
Plaintiff's complaint was a tort action in which damages in excess of $75,000 were sought against defendants for personal injuries and property damage resulting from the alleged negligence of defendants in the operation of a motor vehicle. Issues were joined. The case was then tried to the court sitting with a jury, and the latter returned a verdict on March 16, 1955, in the sum of $1,500. On motion of plaintiff the court on March 30th rendered judgment against defendants in accordance with the verdict, and on the same day the judgment fee was paid and the clerk entered said judgment in the civil docket. On April 7, 1955, plaintiff filed a motion for new trial upon the sole ground that the damages awarded by the jury were inadequate. After oral argument was had on said motion the court entered an order granting it, with a direction that there be a new trial on all issues. Thereafter the defendants moved to vacate this last order, which motion was denied. This appeal followed.
The sole question presented is stated as follows:
'Did the plaintiff waive his right to a new trial by moving for and obtaining judgment on the verdict?'
The position of defendants is succinctly set forth in their two propositions of law, viz.:
'1. The right to a new trial may be waived or lost by seeking some remedy [82 Ariz. 98] or taking some action inconsistent with the assertion of a right to a new trial.
'2. When a party moves for and obtains judgment on a verdict he waives his right to a new trial. It is an abuse of discretion and error under such circumstances to grant a new trial and to deny a motion to vacate the order granting a new trial.'
In support of these propositions defendants urge that in the instant case there is a definite relationship between the conduct of the plaintiff in moving for judgment on the verdict, and thereafter moving for a new trial. They maintain the two acts are related
and definitely inconsistent, cf. Moran v. Jones, 75 Ariz. 175, 253 P.2d 891, reasoning that by adopting the verdict and moving that judgment be entered thereon plaintiff did in effect plainly indicate that he did not intend to rely upon a new trial.
One factor that throws some light on the matter of intent is that in the instant case the plaintiff made no effort to realize the benefits of his judgment. In 66 C.J.S., New Trial, § 9 b., p. 84, this statement appears:
'The acceptance of the fruits of a judgment is generally inconsistent with the right to move for a new trial, and an election to take the fruits is a renunciation of such right; but a party is not estopped to ask for a new trial after judgment in his favor where no benefits were claimed or accepted thereunder * * *.'
Cf. Atlantic Contracting Co. v. Hyde,
108 Ga. 799, 33 S.E. 995, and Avery Co. v. Peterson,39 S.D. ...