#### Kurath, Administrator, Respondent, vs. Gove Automobile Company, Appellant.

*April 4*

April *23, 1912.*

*New trial: Constructive denial: "When deemed an exercise of discretion: Appeal: Reversal: Directing new trial.*

1. The constructive denial of a motion for a new trial, under sec. 2878, Stats. (Supp. 1906: Laws of 1901, ch. 100), will not he treated on appeal as an exercise of discretion where, as in this case, the trial court after the term, believing it had jurisdiction, by an order granting a new trial expressed the opinion that justice had not been done.

2. Under such circumstances, if the facts sustain the trial court’s opinion that justice has not been done, the judgment should be reversed and the cause remanded for a new trial.

Appeal from a judgment of tbe circuit court for Milwaukee county: J. O. Ludwig, Circuit Judge.

*Reversed.*

Action by tbe administrator of tbe estate of Matbias Ku-ratb, deceased, to recover damages sustained by tbe parents on account of tbe death of tbeir minor son, aged fifteen and one-balf years. Tbe complaint alleges tbat on tbe 27 th day of September, 1908, while said Mathias Kurath, in tbe exercise of due care, was crossing Broadway street at tbe intersection of Ogden avenue, in Milwaukee, be was negligently run over and killed by one William Gaston, who was at tbe time of tbe accident a servant in tbe employ of tbe defendant and acting within tbe scope of bis authority as such servant. It further alleges tbat tbe deceased was a bright and intelligent boy, a student in tbe Seventh district school and in a school of fine arts in tbe city of Milwaukee and tbat be gave promise of a brilliant future as an art student; tbat be resided with bis parents, both of whom survive him, are aged, and will soon be unable to properly support themselves; tbat they have heretofore received tbe earnings of said Matbias Kurath and were *391in part dependent npon bis earnings for tbeir support; and that by reason of tbe negligence of tbe defendant tbe parents •of said Matbias Kurath have suffered damages in tbe sum of •$10,000.

Tbe answer was a general denial as to tbe material allegations of tbe complaint.

Tbe jury found (1) that Matbias Kuratb was injured while crossing Broadway at tbe intersection of Ogden avenue •on tbe morning of September 27, 1908, by being struck by an ■automobile driven by one William Gaston, from wbicb injuries said Matbias Kuratb died; (2) that William Gaston, when be was about to turn into Broadway from Ogden avenue, and at tbe time of tbe accident, ran tbe automobile in •question at an unreasonably fast rate of speed; (3) tbat said unreasonably fast rate of speed was tbe proximate cause of tbe injury; (4) tbat no want of ordinary care on tbe part of Matbias Kuratb contributed to tbe injury; (5) tbat William Gaston at tbe time of tbe accident was still in tbe employ of tbe defendant; (6) tbat William Gaston was charged by tbe •defendant with tbe duty of selling gasoline while be was in ■defendant’s garage and collecting tbe proceeds of such sales; ■(7) tbat on tbe morning in question William Gaston did sell some gasoline to a stranger; (8) tbat William Gaston forgot to collect tbe amount due from said stranger for said gasoline upon tbe delivery thereof; (9) tbat William Gaston, after •said stranger left tbe garage, took tbe automobile in question .and drove with it out on tbe streets for tbe purpose of finding and collecting from said stranger tbe amount due for tbe gasoline; (10) tbat tbe defendant company allowed William Gas-ton, while in its employ, to run or operate an automobile; (11) tbat tbe parents of said Matbias Kuratb sustained dam•ages in tbe sum of $1,750, resulting from tbe death of tbeir ■son.

Tbe defendant moved on tbe minutes of tbe judge to set aside tbe verdict and for a new trial. Tbe motion was beard *392by the court and taken under advisement. It was not, however, acted upon by the court during the term, nor was it continued. At the following term the court rendered a decision setting aside the verdict and granting a new trial, from which, order the plaintiff appealed. This court held on such appeal, that pursuant to sec. 2878, Stats., as amended (Supp. 1906:. Laws of 1901, ch. 100), the motion was constructively overruled by the failure of the trial court to act thereon during the term, and that the trial court had no jurisdiction to act upon it at the subsequent term. See *Kurath v. Gove A. Co.*144 Wis. 480, 129 3ST. W. 619. After the *remittitur*from this, court reached the trial court, it .sought to amend the record by showing a waiver of the requirement that the motion be-decided within the term. This court held that the record could not be so amended by the trial court. See *State ex rel.. Kurath v.*Ludwig, 146 Wis. 385, 132 N. W. 130. Upon the-first appeal the order was reversed and the cause remanded for further proceedings according to law. Subsequently the-trial court entered judgment upon the special verdict in favor-of the plaintiff. This is an appeal by the defendant from such judgment.

For the appellant the cause was submitted on the brief of' *Ga/rroll & Carroll.*

*Ghmles E.*Hammersley, for the respondent.

Vinje, J.

It will be seen from the foregoing statement-of facts that no appeal was taken from the constructive denial of defendant’s motion for a new trial. The appeal from the-judgment necessarily involves the merits of that denial. *Billington v. Eastern Wis. R. & L. Co.*137 Wis. 416, 417, 119 N. W. 127. If that constructive denial were the only action, taken in the matter by the trial court on the motion we should have to deem it the exercise of its discretion adversely to the-defendant. *Koch v. Wis. P. C. Co.*146 Wis. 267, 131 N. W. 404. But the trial court after the term, believing it had ju*393risdiction, expressed its views upon tbe merits of tbe case by granting a new trial. Though tbe action tben taken by it ■was void for want of jurisdiction, tbe expression of its opinion upon tbe merits must now be deemed relevant upon tbe question as to tbe correctness of tbe constructive denial of tbe motion. Tbe trial court by granting tbe motion after tbe term clearly indicated that tbe constructive denial was a mistake, and a result not in accord with its views upon tbe merits. Tbis construction of tbe trial court’s attitude towards tbe case is emphasized by its attempt, made in good faitb, to so amend its record as to enable it to grant tbe motion. Sucb attempt was unsuccessful. See *State ex rel. Kurath v. Ludwig,*146 Wis. 385, 132 N. W. 130. That fact, however, does not minimize tbe trial court’s lack of belief in tbe merits of plaintiff’s case.

In *Wilson v. Chippewa Valley E. R. Co.*135 Wis. 18, 114 N. W. 462, 115 N. W. 330, tbe trial court erroneously was of tbe opinion that it bad no power to grant a new trial, and stated that if it bad a new trial would be granted. Tbis court said:

> “Eor tbis error tbe judgment must be reversed, and as tbe trial court has indicated bis view of tbe matter and wbat be would have done bad be not been, as be supposed, constrained by tbe decision of tbis court to tbe contrary, tbe cause must be remanded for a new trial.”

Tbe present case presents a situation where tbe trial court has by an order granting a new trial expressed tbe opinion that justice has not been done. True, sucb expression was made at a time when it was powerless to remedy tbe miscarriage of justice owing to its having allowed tbe term to elapse without acting upon tbe motion, either through forgetfulness or through an erroneous, or perhaps correct, impression that tbe parties waived tbe necessity of tbe motion being decided during tbe term. Under sucb circumstances, if tbe facts in tbe case sustain tbe trial court’s view that justice has not been *394done, the judgment should he reversed and the cause remanded for a new trial. To do otherwise would he to malee an innocent party suffer through the forgetfulness or misunderstanding of the trial court, or perhaps owing to the fact that a correct understanding did not appear upon the record.

A careful perusal of the evidence convinces us, as it did the trial court, that Gaston’s testimony is not only incredible in itself, but is so contradicted by other credible evidence that no verdict ought to be permitted to rest upon it. Without it, plaintiff’s case entirely falls. It would not add to the value of this opinion to state his testimony in detail and point out the many incredible and contradicted parts thereof.

*By the Court.*— Judgment reversed, and cause remanded for a new trial.