CHICAGO, M., ST. P. & P. RR. CO. v. Johnston's Fuel Liners

• Citation: 130 N.W.2d 154
• Decision Date: 11 September 1964
• Docket Number: No. 8144.,8144.
• Parties: CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an individual doing business under the trade name of Regent Oil Company, Third-Party Defendant and Respondent.
• Court: United States State Supreme Court of North Dakota

130 N.W.2d 154

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an individual doing business under the trade name of Regent Oil Company, Third-Party Defendant and Respondent.

No. 8144.

Supreme Court of North Dakota.

August 21, 1964.

Rehearing Denied September 11, 1964.

COPYRIGHT MATERIAL OMITTED

Conmy & Conmy, Bismarck, for defendant and third-party plaintiff and appellant.

Donald R. Crabtree, Ellendale, and Campbell, Voas & Richardson, Aberdeen, S. D., for plaintiff and respondent.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Rausch & Chapman, Bismarck, for third-party defendant and respondent.

TEIGEN, Judge.

This is an appeal from an order granting a new trial to a third-party defendant in an action for damages sounding in tort in which the third-party defendant was impleaded for liability over.

This is the second appeal in this case. The first opinion is contained in 122 N.W.2d 140. In that case we sustained the trial court's order overruling the defendant's motion for judgment notwithstanding the verdict and affirmed the judgment in favor of the plaintiff against the defendant. We also reversed the trial court's order granting judgment notwithstanding the verdict in favor of the third-party defendant, subject, however, "to the right of the respondent third-party defendant, Leonard Prince, to proceed promptly to press for a ruling on his motion for a new trial." The third-party defendant in its original motion had moved in the alternative for judgment notwithstanding the verdict or a new trial. The trial court, in granting the motion for judgment notwithstanding the verdict, did not decide the motion for new trial as it should have done under Rule 50(c), North Dakota Rules of Civil Procedure. Therefore, we permitted the movant to press for a ruling after remittitur.

The third-party defendant, Prince, after the remittitur in the first case, pressed for a ruling on his motion for a new trial. It was granted by the trial court. This is the order with which we are concerned in this appeal.

For the sake of convenience, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation, the plaintiff in this action, will hereinafter be referred to as the railroad. Johnston's Fuel Liners, Inc., a corporation, the defendant and third-party plaintiff, will be referred to as Johnston's. Leonard Prince, an individual doing business under the trade name of Regent Oil Company, the third-party defendant, will be referred to as Prince.

A thumbnail sketch of the history of the case may be stated thus: The plaintiff, the railroad, sued the defendant, Johnston's, for damages to its railroad property resulting from a gasoline fire that occurred when the third-party defendant's, Prince's, gasoline storage tanks caught fire while one of the tanks was being filled by the defendant, Johnston's, which is a gasoline transportation company. The plaintiff, the railroad, alleged negligence on the part of the defendant, Johnston's, as the proximate cause of its damage.

The defendant, Johnston's, impleaded Prince, as third-party defendant, for liability over, alleging negligence on the part of Prince. Johnston's also prayed for judgment against Prince for its loss and damage. The third-party defendant, Prince, denied negligence on his part, alleged negligence on the part of the defendant, Johnston's, and counterclaimed against Johnston's for his loss as a result of the fire.

The case was tried to a jury. The jury returned a verdict in four parts: (1) In favor of the plaintiff, the railroad, and against the defendant, Johnston's, and assessed damages; (2) In favor of Johnston's and against the third-party defendant, Prince, for liability over and assessed the amount; (3) Against Johnston's in its claim against the third-party defendant, Prince, for Johnston's damages as a result of the fire; and (4) Against the third-party defendant, Prince, and in favor of Johnston's on Prince's counterclaim.

The new trial was granted on the ground of insufficiency of the evidence to justify the verdict.

The trial court, in its written memorandum filed with the order granting new trial, prefaced its opinion with the following statement:

"My opinion on the physical facts, as disclosed by the record, and my conclusions that the negligent acts, if any, of Prince, were not a proximate cause of the damages to plaintiffs' properties, are very positive and directly contrary to those of the Supreme Court. In granting the motion of Prince for a new trial I am exercising my judgment and discretion, as I should have on January 4, 1962, under rule 50 c, when I wrote my opinion determining that Prince was entitled to Judgment Notwithstanding the Verdict. I am still of the same opinion and in writing this memorandum now, after the decisions of the Supreme Court, I wish to say that I do recognize that the Supreme Court has the final say, and I am not assuming an attitude of defiance or attempting to display any disrespect."

In the former appeal, this court found the trial court in error when it granted judgment notwithstanding the verdict in favor of Prince, the third-party defendant, for the reason that the evidence, when viewed in the light most favorable to the plaintiff and Johnston's, as third-party plaintiff, who were the prevailing parties, permitted a finding by the jury that the proximate cause of plaintiff's damages was the concurrent negligence of both Johnston's and Prince. We held it was error for the trial court to grant the motion of Prince, third-party defendant, for judgment notwithstanding the verdict. We applied the rule that on a motion for judgment notwithstanding the verdict, the evidence will be construed most favorably to the party against whom such judgment is sought, and that the questions of negligence and proximate cause are questions of fact for the jury in tort actions, unless the evidence is such that reasonable minds can draw but one conclusion therefrom.

Applying these rules we found the facts were not such that but one conclusion could be drawn therefrom by reasonable minds. We granted Prince leave to press for a ruling on his alternate motion for new trial because justice required he be permitted to obtain a ruling thereon in view of our procedural rule. Rule 50(c), N.D.R.Civ.P.

A motion for judgment notwithstanding the verdict does not go to the weight of the evidence and such judgment should not be granted, unless the moving party is entitled to judgment as a matter of law. Richmire v. Andrews & Gage Elevator Co., 11 N.D. 453, 92 N.W. 819; State v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382; Taylor v. Minneapolis, St. P. & S. S. N. Ry. Co., 63 N.D. 332, 248 N.W. 268; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476; Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323; Dahl v. North American Creameries, N.D., 61 N.W.2d 916.

The foregoing rule does not apply in considering a motion for new trial on the ground urged here of insufficiency of the evidence to justify the verdict. It is well established that a motion for a new trial on the ground of insufficiency of the evidence to justify the verdict invokes the legal discretion of the trial court to be exercised in the interest of justice. Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; Delaloye v. Kaisershot, 72 N.D. 637, 10 N.W.2d 593; Hochstetler v. Graber, 78 N.D. 90, 48 N.W.2d 15; McDermott v. Sway, 78 N.D. 521, 50 N.W.2d 235; Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240; Mann v. Policyholders' National Life Insurance Co., 78 N.D. 724, 51 N.W.2d 853; and Maier v. Holzer, N.D., 123 N.W.2d 29.

Where it appears to the trial court that the verdict is against the weight of the evidence, it is the duty of the trial court to set the verdict aside and grant new trial. Crossen v. Rognlie, N.D., 68 N.W.2d 110; Hoffman v. Berger, N.D., 76 N.W.2d 515; Hamre v. Senger, N.D., 79 N.W.2d 41; and Long v. People's Department Store, N.D., 95 N.W.2d 904.

Upon this appeal Johnston's, the third-party plaintiff, specifies: (1) The trial court was barred by the Supreme Court's decision in the first appeal from granting new trial on the ground of insufficiency of the evidence; (2) If it was not barred, it abused its discretion in granting a new trial; and (3) It erred in granting new trial to Prince alone and, if new trial is to be granted, it should be granted to Johnston's also.

The first specification, we believe, has already been answered. It has no merit. The trial court has discretion within limits to be exercised in the interests of justice in ruling upon a motion for new trial. Different rules apply to the two types of motion. A judgment notwithstanding the verdict determines the issues; whereas, an order granting a new trial leaves the issues where they were before trial and for trial anew to a different jury. On the basis of these rules and the difference in the nature of the relief granted, the state of the evidence may be such that the trial court is not warranted in granting judgment notwithstanding the verdict but is warranted in granting a new trial.

Johnston's second specification is that the court abused its discretion in that the cause or ground upon which the trial court relied did not have actual existence. It cites in support thereof Kohlman v. Hyland, supra.

We note that in our former decision, after having reviewed the evidence in the light most favorable to the prevailing parties, including the third-party plaintiff, Johnston's, we concluded "reasonable minds could differ" and, therefore, the case was properly one for the jury to decide.

One test as to whether a decision is within the discretion of the court is whether or not the question may properly be decided either way. Kohlman v. Hyland, supra.

The trial court, in its memorandum, stated the argument on the motion...