Clark v. Josephson

• Decision Date: 29 October 1954
• Docket Number: 7463,Nos. 7462,s. 7462
• Citation: 66 N.W.2d 539
• Parties: Lee CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant. Ella CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 539

66 N.W.2d 539

Lee CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant.

Ella CLARK, Plaintiff and Respondent, v. Henry JOSEPHSON, Defendant and Appellant.

Nos. 7462, 7463.

Supreme Court of North Dakota.

Oct. 29, 1954.

Syllabus by the Court.

1. Assignment of error and issues not argued in brief are deemed abandoned and need not be considered on appeal.

2. Improper questions to which objection is sustained and upon which the trial court admonishes the jury in its instructions, do not necessarily constitute reversible error.

3. Evidence of a plea of guilty to a criminal charge arising out of an automobile collision is admissible as an admission against interest, but may be explained.

4. An unsuccessful attempt to secure an answer to a question propounded to defendant upon cross examination as to whether he has entered a plea of guilty to drunken driving does not constitute misconduct.

5. In the denial of a motion for mistrial, the trial court has wide discretion. The granting of a motion for mistrial is an extreme remedy, and should be resorted to only when further proceedings would be productive of great hardship or manifest injustice.

6. Reference by counsel in opening statement that defendant entered a plea of guilty to drunken driving, or that the evidence shows that as a result of the collision the defendant entered a plea to said charge, in view of the instructions of the trial court to the jury, was not prejudicial error.

7. Where the evidence is in conflict and reasonable men might draw different conclusions therefrom, the Supreme Court, on appeal, will disturb neither the verdict of the jury based on such evidence, nor the order of the trial court in denying a motion for a new trial on the ground of insufficiency of the evidence.

8. Where plaintiff's automobile was damaged in a collision caused by the negligence of the defendant, the measure of damages is the difference in its market value immediately before and after the collision, and such evidence is not subject to the objection of indefiniteness as to time and place, where other undisputed evidence thereof is before the jury, and the complaints show the time and place of the collision, and the answer in each case admits the time and place thereof, and the contents thereof including the time and place of the collision were summarized in the trial court's instructions to the jury.

9. The evidence in the case of Ella Clark is examined and for reasons stated in the opinion, it is held that: a jury verdict for $1300 for personal injuries, although not supported by medical testimony, where undisputed evidence shows that the injuries, pain and suffering resulting therefrom are proximately caused by the defendant's negligence, is not excessive.

J. K. Murray, Bismarck, for defendant and appellant.

Strutz, Jansonius & Fleck, Bismarck, for plaintiffs and respondents.

JOHNSON, Judge.

This litigation arose out of a collision between the automobiles owned by the plaintiff, Lee Clark, and Henry Josephson, on the 12th day of September, 1952, at about 5:25 p. m. The plaintiff, Lee Clark, and his wife, Ella Clark, were on their way home. The collision occurred near the intersection of Front Avenue and Third Street in the City of Bismarck, North Dakota. The plaintiff, Lee Clark, was driving south on Third Street and the defendant was driving east on Front Avenue.

Both of the plaintiff's actions involve the same facts. The cases were consolidated for trial in the District Court of Burleigh County, North Dakota, and both were argued on appeal together. We will consider both appeals in this one opinion.

The plaintiff, Lee Clark, alleges that the defendant, Henry Josephson, was negligent in the operation of his automobile, and operating it under the influence of intoxicating beverages, and that his negligence and carelessness was the proximate cause of the damages to the plaintiff's 1946 4-door Oldsmobile. He seeks damages to his automobile and for personal injuries. The plaintiff, Ella Clark, claims damages for personal injuries by reason of the negligence of the defendant.

The defendant answered, admitting the collision between Lee Clark's car and his, and the time and place thereof. He denies the allegation of negligence and alleges that the collision between his car and Lee Clark's car was caused by the contributory negligence of the plaintiff, Lee Clark. The defendant also counterclaimed for damages. The plaintiff denied defendant's counterclaim. Upon the trial of the action on the motion of the defendant, the counterclaim was dismissed.

The plaintiff, Ella Clark, alleges that she was riding as a guest in the automobile owned and operated by her husband, Lee Clark; that by reason of the collision between the defendant's car and the car of her husband, Lee Clark, she was injured; that the negligence and carelessness of the defendant was the proximate cause of such injury.

The defendant answered the complaint of Ella Clark, denying negligent operation of his automobile, admitting the approximate time and place of the collision, and asserting that at the time thereof, the plaintiff, Ella Clark, and her husband, Lee Clark, were engaged in a joint enterprise; that the plaintiff, Ella Clark, failed to do anything to prevent her husband's negligent operation of his automobile and consented to and adopted the negligent driving of his car. The defendant also counterclaimed in this action. The plaintiff, Ella Clark, denied defendant's counterclaim. On defendant's motion at the time of trial his counterclaim was dismissed.

The jury, in the action of Lee Clark against the defendant, rendered a verdict of $290 for the plaintiff, and in the action of the plaintiff, Ella Clark, rendered a verdict in her favor in the sum of $1300.

The defendant made a motion for a new trial in both actions. The motions were denied by the trial court. The defendant appealed from both orders denying the motion for a new trial and also appealed from the judgments which were entered upon the verdicts in favor of the plaintiffs, Lee Clark and Ella Clark.

In connection with the motions for a new trial in both actions, in the District Court, the defendant set forth nine specifications of error and these specifications are also asserted on this appeal. The specifications of error on appeal are identical in both cases. They are a restatement of the specifications of error on the motions for a new trial. The defendant also specifies that the court erred in denying the motions for a new trial in both cases and points out alleged insufficiency of evidence on the motions for a new trial.

We deem it unnecessary to set forth in detail all of the specifications of alleged error, specifications of insufficiency of the evidence, and contentions of the defendant and appellant, that the evidence is conclusive in several particulars. He has grouped all of the alleged errors of law raised by the specifications and the insufficiency of the evidence, as follows:

'1. Misconduct of counsel for plaintiffs, which was highly prejudicial to the rights of the defendant.

'2. No proper measure of damages established by the evidence with reference to the automobile.

'3. Error of law in the admission in evidence of a copy of a repair bill on the automobile.

'4. Error in admitting the repair bill in rebuttal when the defendant offered no evidence pertaining to the amount of repairs to the automobile.

'5. No evidence of any nature establishing any particulars with reference to damages to the automobile.

'6. Error in the Court's instructions pertaining to damages to the automobile, when there was no evidence sustaining the theory of damages set forth in the instructions.

'7. No medical testimony pertaining to the personal injuries of Ella Clark, the award of $1300.00 being based not on evidence but on bias and prejudice and without any foundation established for such award. That the amount of such award is highly excessive.'

Under this grouping the defendant and appellant has apparently abandoned many of the alleged specifications of error, as they are not argued under any of the seven points just mentioned. Issues or assignments of error not argued in briefs are deemed abandoned. First State Bank of Kief v. Osborne-McMillan Elevator Co., 53 N.D. 551, 207 N.W. 37. Errors assigned in the brief, but not argued, will be deemed abandoned. Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 12 L.R.A.,N.S., 180; Olson v. Armour & Co., 68 N.D. 272, 276, 280 N.W. 200, 201.

We will now discuss the errors as grouped by the defendant and appellant in the order in which they are presented.

The appellant specific misconduct of counsel for plaintiffs in several particulars, relative to questions propounded to Mr. Bossert, a policeman, one of the witnesses for the plaintiffs, in which he was asked whether as a result of his investigation and talk with the parties, criminal charges were made, and as to whether he was present when Mr. Josephson entered a plea of guilty to criminal charges arising out of the accident, and whether he had heard him enter a plea. This witness was further asked if he had been present at the time of the hearing described in Exhibit 1. Upon objection to Exhibit 1, it was withdrawn and the objection thereto was sustained. All this type of testimony was excluded. Where improper questions are asked to which objections are sustained, the prejudicial effect of the asking of such questions, is a matter in the first instance, for the consideration of the trial court. Under the circumstances disclosed by the record, the court having sustained objection to the questions, the same do not constitute reversible error. Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791. This is particularly true in view of the admonition in the charge to the jury concerning this line of testimony in which the court instructed the jury to disregard remarks by counsel for plaintiff concerning any alleged...