Bohn v. Eichhorst

• Decision Date: 04 December 1970
• Docket Number: No. 8672,8672
• Citation: 181 N.W.2d 771
• Parties: Olive BOHN and Kenneth Bohn, Plaintiffs and Respondents, v. Esther R. EICHHORST, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 771

181 N.W.2d 771

Olive BOHN and Kenneth Bohn, Plaintiffs and Respondents, v. Esther R. EICHHORST, Defendant and Appellant.

Civ. No. 8672.

Supreme Court of North Dakota.

Dec. 4, 1970.

Syllabus by the Court

1. An irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial may justify the granting of a new trial, but an irregularity to justify a new trial must be one which is patent, obvious, or evident from the record.

2. It is the responsibility of counsel for the party moving for a continuance to secure a hearing date from the court, to notice the motion for hearing at such a date, to serve notice of said hearing upon the adverse party pursuant to Rule 6(d) of the North Dakota Rules of Civil Procedure, and, in the event that a court refuses to set such a hearing, it is the responsibility of the counsel for the moving party to make that refusal a matter of record.

3. An irregularity brought on by the movant or his counsel will not justify the granting of a new trial.

4. The mere assertion of surprise in support of a motion for continuance does not deprive the trial court of its duty to attempt to determine whether the movant has been met with actual surprise which ordinary prudence could not have guarded against.

5. Applications for a new trial on the ground of surprise are addressed to the sound discretion of the court and its ruling will not be disturbed in the absence of a showing of abuse of discretion.

6. Whether excessive damages have been awarded under the influence of passion or prejudice, and, if so, whether the ends of justice may be subserved by ordering a reduction of the verdict, or whether a new trial must be had, are primarily questions for the trial court.

7. A new trial will not ordinarily be granted for accident or surprise unless it appears probable that, except for the surprise or accident, a different verdict would have been rendered or a new trial will probably result in a changed verdict.

Conmy, Conmy, Rosenberg, Lucas & Olson, Bismarck, for defendant-appellant.

Nelson, Mack & Moosbrugger, Grand Forks, for plaintiffs-respondents.

ERICKSTAD, Judge.

The plaintiffs, Olive Bohn and Kenneth Bohn, wife and husband, initiated their action against the defendant, Esther R. Eichhorst, by complaint dated May 8, 1969. The complaint in essence asserts that on the 14th day of March, 1968, the defendant negligently drove her automobile into the rear of the automobile driven by Mrs. Bohn, while Mrs. Bohn's automobile was stopped at the corner of Eighth Avenue South and Cottonwood Street in the City of Grand Forks, causing extensive damage to the Bohn vehicle and injury to Mrs. Bohn.

The allegations of the complaint relative to damages are as follows:

V.

That as a direct and proximate result of said collision, the Plaintiff, Olive Bohn was injured in and about the head, neck, back, spine, body, and limbs, and that said injuries are of a permanent and disabling nature, and have caused, and will continue to cause, the Plaintiff, Olive Bohn great pain and suffering, both physical and mental.

VI.

That by reason of said collision and resulting injuries, the Plaintiff, Olive Bohn required medical care and treatment, for which she reasonably and necessarily is obligated and indebted in the amount of $1,671.38; and that in the future she will incur additional expenses.

VII.

That by reason of the Plaintiff, Olive Bohn, being injured as aforesaid, the Plaintiff, Kenneth Bohn, as her husband has been deprived of the services of his wife and in providing care and treatment of the said Olive Bohn for the injuries sustained by her, has incurred and will incur in the future, hospital, medical and drug expense, all to his damage in the sum of Fifteen Thousand and no/100 ($15,000.00) Dollars.

VIII.

That by reason of said collision and the Plaintiff, Olive Bohn's injuries, the Plaintiff, Olive Bohn suffered loss of earnings in the sum of $6,400.00 and that in the future she will continue to suffer loss of earnings.

WHEREFORE, The Plaintiff, Olive Bohn, demands judgment against the Defendant for actual and compensatory damages in the sum of $8,196.38; for general damages in the sum of $50,000.00 and her costs and disbursements of this action, and the Plaintiff, Kenneth Bohn, demands judgment against the Defendant in the sum of $15,000.00 together with costs and disbursements herein.

The defendant's answer denies the material allegations of the complaint.

The case was tried by a jury, which rendered a verdict of $35,000 for Mrs. Bohn and a verdict of $15,000 for Mr. Bohn. Judgment was entered on the 19th of December, 1969, pursuant to the district court order consistent with those verdicts.

The notice of appeal asserts that the defendant appeals from the December 19, 1969, judgment, from an order of the district court of the 22nd of January, 1970, denying her motion for new trial, and from the district court's denial or refusal to hear her written motion for continuance prior to trial, dated the 5th of December, 1969.

The defendant's main contention on the motion for new trial and on this appeal is that the trial court erred in denying her motion for a continuance asserted to have been made shortly before the case was scheduled for trial, which continuance was requested for the reason that the defendant sought to have the plaintiff examined by a psychiatrist.

The record, however, on this appeal does not disclose that such a motion was actually noticed for hearing or that the trial court refused to set hearing on such a motion, or that a hearing was ever had on the motion, or that an order was ever entered denying such a motion.

The facts relevant thereto are for the most part agreed upon.

This action was started with the service of a summons and complaint on or about the 8th of May, 1969. An answer of the defendant was served on or about the 20th day of May, 1969, and thereafter interrogatories were submitted to the plaintiffs on or about the 23rd day of May, 1969, with answers to the interrogatories being served upon the defendant in June of 1970. The interrogatories disclosed that Mrs. Bohn had been examined by Dr. William Nelson, a specialist in internal medicine, and that she had received therapy treatments from Dr. Donald F. Barcome. It is the defendant's position that her first indication of any psychiatric involvement in the action was when her counsel received a letter on December 3, 1969, which enclosed a copy of a report from Dr. Edmund McLaughlin, a psychiatrist. The defendant points out that the psychiatrist had seen Mrs. Bohn for the first time on November 28, 1969.

It is conceded that counsel for the defendant mailed a motion for continuance to the clerk of the district court of Grand Forks County on December 5, 1969. There all concesssions end.

Counsel for the defendant contends that the district court of Grand Forks County called him on the telephone on December 8, 1969, and advised him that the motion for continuance was denied. The record of the hearing before the trial court on the motion fro a new trial, however, discloses that the trial court had a different view of what was said over the telephone. The pertinent part of that record reads:

'THE COURT: * * * Now, you may have been misled, but I know what I said, was that from the way it looked to me, that should the motion be heard, it might be denied, but that I feilt that I would never let you be taken by surprise, and I would give you a chance to have an examination during the trial. Now, I remember saying those words. And do you remember hearing me say those words to you?

'MR. CONMY: The best I can recall, I am sure the court did indicate that if there were any problem, he would require the plaintiff to submit to an exam.

'THE COURT: Right, right.

'MR. CONMY: That's correct.

'THE COURT: Yes. And then you did not bring it to the court's attention at any time during the trial.

'MR. CONMY: That's correct, simply because there was no one we could line up due to the time. * * *'

It should be noted that the motion which was mailed to the clerk of the district court was for an order moving the action over the current term of the court. It was not a motion for a continuance to a later date in the term or for a certain number of days within which a psychiatric examination might have been obtained.

Another part of the record of the hearing on the motion for new trial discloses that the defendant could have secured the services of a Dr. Bohrod of Grand Forks after the 12th of December in the evenings or on Sundays. That part of the record reads:

'MR. CONMY: * * * the contact was initially made with Dr. Bohrod on Friday, December 5, that we were advised that he was booked solid through the 12, as I understand it, and that any attempt to--or a visit with her would have to be evenings or Sundays, as he works full time at another job, some form of government appointment.

'THE COURT: Yes. But you could have had him examine her in the evenings then?

'MR. CONMY: After the 12th he indicated he would have some time available to do it. At the time we were attempting to set this up, I believe the case was coming to trial on the 11th.

'THE COURT: Well, it was set for the week of the Eighth, but it didn't come until the week of the 15th.'

The defendant's specifications of error on this appeal are as follows:

1. An irregularity existed in the proceedings of the Court, and particularly in the order of the court refusing to hear and denying defendant's written motion for a continuance made prior to trial, which prevented the defendant from having a fair trial on the issues of damage therein.

2. That the Court erred in denying defendant's motion for a continuance and motion for a new trial based in part on the plaintiff's use of psychiatric testimony, which testimony was not hinted at in the answers to medical...