#### JARRETT v. TRUNK COMPANY.

(Filed October 30, 1906).

Verdicts, When Set Aside — Duty of Judge — Discretion— Gase on Appeal.

1. Where the defendant appealed from the refusal of the trial Judge to render judgment on the verdict and from his order setting aside the verdict on the ground that it is not stated in the record whether or not it was made in the exercise of his discretion, and where the only entries on the record were: “It is ordered by the Court that the verdict be set aside,” and “The defendant appealed from, the order setting aside the verdict,” but the case on appeal settled by the Judge upon disagreement of counsel states that the defendant moved for judgment on the verdict, which was denied, and that the Judge set aside the verdict in the exercise of his discretion (stating the grounds) : Held, there was no error.

2. The rule adopted in Ábern&thy v. Yount, 138 N. C., 337, that the Judge, when he sets aside a verdict, should state whether or not it is done in the exercise of his discretion, is reaffirmed.

3. While the necessity for exercising the discretion to set aside a verdict, in any given ease, is not to be determined by the mere inclination of the Judge, but by a sound and enlightened judgment, in an effort to do even and exact justice, this Court will not supervise it, except, perhaps, in extreme circumstances not at all likely to arise, and it is therefore practically unlimited.

• AotioN by Causey Jarrett by bis next friend against High Point Trunk and Bag Company, beard by Judge G. S. Ferguson and a jury, at.tbe June Term, 1906, of the Superior Court of'GuiLKORD.

Tbe action was brought to recover damages for injuries alleged to bave been caused by tbe negligence of tbe defendant while tbe plaintiff was working in its factory at High Point, as its employee. Tbe issues, with tbe answers of tbe jury thereto, are as follows: “1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Ans.: Yes. 2. Did tbe plaintiff by bis own negligence con*467tribute to tbe injury complained of, as alleged in tbe answer ? Ans.: Tes. 3. Wbat damage, if any, is tbe plaintiff entitled to recover ? Ans.: $3,000.”

Tbe following entry was made upon tbe record of tbe Court below: “It is ordered by tbe Court that tbe verdict be set aside.” Then follows tbis entry: “Tbe defendant by its attorney appealed tbis day from tbe order setting aside tbe verdict. 18 June, 1906.” No other entry was made on tbe record.

Tbe defendant tendered a case on appeal and tbe plaintiff’s counsel a counter-case. Tbe Judge, upon disagreement of counsel, settled tbe case on appeal, and from it is made tbe following extract: “Upon tbe return of tbe verdict, tbe Court of its own motion set aside tbe verdict in tbe exercise of its discretion. Tbis discretion was exercised upon tbe following grounds: 1. Tbe findings on tbe issues were conflicting, and in tbe opinion of tbe Court tbe jury either ignored or did not understand tbe charge of tbe Court, which was, If they answer tbe second issue No, they would consider tbe question of damages, and answer tbe third issue; but if they answered tbe second issue Yes, they need not answer the third issue.’ Tbe jury having answered tbe second issue ‘Yes,’ and tbe third issue ‘$3,000,’ tbe Court could not understand tbe finding of tbe jury. 2. Tbe Court thought tbe finding on tbe second issue was against tbe weight of tbe evidence, and tbe damages assessed were not adequate to tbe injury received by tbe plaintiff. Tbe defendant insisted that it was entitled to judgment on tbe verdict, and so moved. Tbe motion was made after tbe Court bad directed tbe verdict to be set aside, but before tbe verdict and order were recorded. Tbe Court being of tbe opinion that tbe verdict should be set aside, declined tbe defendant’s motion: not because it was not in apt time, but because tbe Court felt it to be its duty, in tbe exercise of a sound discretion, to set aside tbe verdict. Defendant excepted.”

*468Tbe defendant assigned tbe following errors: 1. Tbe refusal of tbe Court to render judgment in its favor. 2. Tbe order of tbe Court setting aside tbe verdict. Eor the purpose of correcting tbe errors so assigned, this appeal was taken.

W. P. Bynum, Jr., E. J. Justice and O. 8. Ferguson for tbe plaintiff.

J. T. Morehead and King ■& Kimball for tbe defendant.

Walker, J.,

after stating tbe case: Tbe defendant’s counsel contended that tbe order of tbe Judge setting aside tbe verdict was improper because there was no apparent error in law committed at tbe trial, and it is not stated in tbe record whether or not it was made in tbe exercise of bis judicial discretion, and for this position they rely on tbe recent decision of this Court in Abernethy v. Yount, 138 N. C., 337. It is held in that case that tbe Judge, when he sets aside a verdict, should state whether or not it is done in tbe exercise of bis discretion; and, after mature reflection, we reaffirm that principle, which still commends itself to our judgment as tbe only safe and fair procedure in such cases. It is so easy to do, and so manifestly in tbe interest of common justice to tbe party against whom tbe ruling is made, and, too, it will meet with such favor and cheerful acquiescence on tbe part of tbe Judges who preside at trials, as we are persuaded to believe, that we can now perceive of no good reason why tbe rule should be disturbed. Tbe reasons for its adoption have been so well stated by Mr. Justice Gonnor in tbe case cited, which now appear to us as conclusive, that we will not undertake any elaboration of them in further vindication of what we there decided. One sufficient ground upon which tbe rule can well rest is that tbe defeated party is entitled to know whether be lost by reason of some error in law committed during tbe trial or merely by tbe exercise of tbe Judge’s discretion, to tbe end that, in tbe former case, be may proceed *469to test tbe validity of tbe Tilling as it involves a matter of law or legal inference and, in tbe latter, tbat be may submit to tbe ruling and avoid any further useless contest, as it is not a reviewable matter.

Tbe discretion of tbe Judge to set aside a verdict is not an arbitrary one, to be exercised capriciously or according to bis absolute will, but reasonably and with tbe object solely of preventing wbat may seem to him an inequitable result. Tbe power is an inherent one, and is regarded as essential to tbe proper administration of tbe law. It is not limited to cases where tbe verdict is found to be against tbe weight of tbe evidence, but extends to many others. Bird v. Bradburn, 131 N. C., 488. Judicial discretion, said Coke, is never exercised to give effect to tbe mere will of tbe Judge, but to tbe will of tbe law. Tbe Judge’s proper function, when using it, is to discern according to law wbat is just in the premises. ^Discernere per legem quid sit justumB Osborn v. Bank, 9 Wheat., 738. When applied to a court of justice, said Lord Mansfield, discretion means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular. 4 Burrows, 2539. While tbe necessity for exercising this discretion, in any given case, is not to be determined by tbe mere inclination of tbe Judge, but by a sound and enlightened judgment, in an effort to attain tbe end of ail law, namely, tbe doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.

In this case tbe defendant can derive no benefit from tbe decision in Abernethy v. Yount, as tbe question raised by its exception is not presented on tbe record alone, but a case on appeal has been.settled by tbe Judge upon disagreement of counsel, and it appears therefrom tbat tbe Judge exercised bis discretion in a perfectly proper manner. Tbe findings of *470the jury, it is true, may not be conflicting, and, in legal effect, they may amount to a verdict for the defendant, as contended by the defendant’s counsel; but bis Honor thought they sufficiently indicated that the jury must have misunderstood the charge, or the case, and for that reason, or in some other way, there had been a miscarriage of justice. Besides, he found that the verdict as to the second issue was against the weight of the evidence and that the damages, were insufficient. This was nothing but the exercise of the legitimate power of the Court to set aside a verdict. The discretion confided to the Judge, when thus used, is, of course, not reviewable. But if it could be revised, we can discover nothing reversible in the ruling upon the facts, as stated in the record and in the case, treating the latter as supplementing the record entries. The case contains a full statement of the reasons which induced the action of the Court, and we find them amply sufficient to justify the order. Unless we looked into the case on appeal, it would not appear that the defendant ever moved for judgment upon the verdict as rendered, for the record does not show it.

One of the most delicate and responsible duties of all those the Judge must perform is the use of his discretion in passing upon the rights of litigants, when he has no fixed and certain rule for his guidance, but is left, as Judge Gaston once expressed it, “to his own notions of fitness and expediency”- and while, perhaps, discretion should always be exercised sparingly, and surely not unnecessarily, yet the duty of using it is one the law requires of him, and which he should perform with firmness and without hesitation, in all cases where he deems it necessary to execute justice and maintain the right.

No Error.