Bergh v. Hellickson

• Decision Date: 12 December 1919
• Citation: Bergh v. Hellickson, 44 N.D. 9, 177 N.W. 506 (N.D. 1919)
• Court: North Dakota Supreme Court

177 N.W. 506

44 N.D. 9

MELVIN BERGH, Respondent, v. GEORGE HELLICKSON and A. H. Stavens, Appellants

Supreme Court of North Dakota

December 12, 1919

Appeal from the District Court of Steele County, Cole, J. Order reversed and new trial granted.

P. O Sathre and Chas. A. Lyche, for appellants.

"Where parties have been diligent in their efforts to be ready for trial, but have been prevented by circumstances beyond their control, the court should grant them a continuance. Radford v. Fowlkes, 85 Va. 820, 8 S.E. 817; Myers v. Trice, 86 Va. 835, 11 S.E. 428; Roberts v. Moore, 27 Ga. 411; Wright v. Lery, 22 Minn 466; Thompson v. Thornton, 41 Cal. 626; Connell v. Sharpe, 32 Ga. 443; Mayton v. Guild, 29 S.W 218; Light v. Richardson, 31 P. 1123.

"It is unquestionably an important privilege of a party to be present at the trial of his cause, which should not be denied on a proper application made, unless for weighty reasons." 9 Cyc. 93; Robertson v. Woolley, 6 Wash. 156, 32 P. 1060; Mathews v. Willoughby, 85 Ga 289, 11 S.E. 620; Re Townsend, 122 Iowa 246, 97 N.W. 1108; Hoover v. Hoover, 97 N.W. 620; Martin v. Nichols, 121 Ga. 506, 49 S.W. 613.

"To hold a person liable for tort which he has not himself committed, and which has not been done by his orders, his adoption of or assent to the act, such as will render him liable, must be clear and explicit, and made with a full knowledge of the tort, or at least of the injured party's complaint that the injury has been inflicted on him." Tucker v. Jerris, 75 Me. 184; Cooley, Torts, 215, 216.

"Damages must be assessed in a single sum. They cannot be apportioned by the jury among the defendants, for the sole inquiry open is what damages plaintiff has sustained, not who ought to pay them." 38 Cyc. 492, and numerous authorities cited there.

W. J. Courtney, for respondent.

BIRDZELL, J. CHRISTIANSON, Ch. J., and GRACE and BRONSON, JJ., concur. ROBINSON, J., dissents.

OPINION

BIRDZELL, J.

The plaintiff brings this action to recover possession, or the value, of three hogs which he claims strayed from his farm in the month of May, 1918, and which thereafter came into the possession of the defendants. The defendant Stavens is the owner of a large farm situated in the vicinity of the place from which the plaintiff's hogs strayed, and the defendant Hellickson is his foreman. This action came on for trial on February 18, 1919, in the district court of Steele county. At the commencement of the trial the attorney for the defendants made an application for a continuance on the ground that one of his clients, Hellickson, was absent from the state under the following circumstances, as set up in the affidavit: The defendant Hellickson had conferred with his attorney on February 5th, at which time he was apprised of the date of the trial, defendant stating that he would be present at such time. That on the day before the term convened, to wit, on February 17th, affiant called Hellickson by telephone, and was informed by his sister that the former had gone to Minneapolis two days before on account of illness in his family, but that he had expected to return on that day; that affiant again called on the following day the day of the trial, but defendant had not returned. Defendants' counsel asked either for a continuance or that the action be placed at the foot of the calendar to enable him to communicate with his client. This application was denied and the case proceeded to trial. Defendants' counsel, however, produced no witnesses to testify to their version of the facts the only witness sworn for the defendants being the plaintiff himself, who was called for cross-examination. The jury, under the evidence and under proper instructions from the court, returned a verdict for the plaintiff for the full amount claimed. There is error, however, in the verdict in that the jury purports to relieve the defendant Hellickson from liability for a portion of the sum found against the defendants, when, under the charge of ...