Cook v. Stenslie, 9245

• Citation: 251 N.W.2d 393
• Decision Date: 24 February 1977
• Docket Number: No. 9245,9245
• Parties: Susan COOK, Plaintiff and Appellant, v. Clyde STENSLIE, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 393

251 N.W.2d 393

Susan COOK, Plaintiff and Appellant, v. Clyde STENSLIE, Defendant and Appellee.

Civ. No. 9245.

Supreme Court of North Dakota.

Feb. 24, 1977.

Syllabus by the Court

1. A motion for new trial is addressed to the sound discretion of the trial court, whose ruling on the motion will not be disturbed on appeal unless a manifest abuse of discretion is shown.

2. The trial court, in ruling on a motion for new trial, is vested with discretion to consider and weigh the evidence, not as a "thirteenth" juror but as the presiding judge.

3. An abuse of discretion by the trial court in granting a motion for new trial implies an unreasonable, arbitrary, or unconscionable attitude.

4. A trial judge should set aside a jury verdict and grant a new trial only when, based on all the evidence and proceedings before him, his judgment tells him that the verdict was against the fair preponderance of the evidence.

5. A verdict is excessive and influenced by passion or prejudice when it shocks the judicial conscience, appears arbitrary or unjust, or is so extreme as to be without support in the evidence.

6. A stronger showing is required to reverse the granting of a new trial than to reverse an order denying a motion for new trial.

7. In evaluating the excessiveness of a jury verdict, the court must be guided by the peculiar facts and circumstances of the case.

8. A new trial limited to the question of damages should not be granted unless liability is clearly proven and separable from the issue of damages.

Lanier, Knox & Olson, Fargo, for appellant; argued by Frank T. Knox, Fargo.

Vogel, Vogel, Brantner & Kelly, Fargo, for appellee; argued by Kermit Edward Bye, Fargo.

SAND, Justice.

Plaintiff Susan Cook was injured in an automobile-pedestrian accident. After a verdict for Cook in the amount of $50,000 rendered by a jury in Cass County district court, defendant-driver Clyde Stenslie moved for judgment notwithstanding the verdict or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was denied, but the motion for a new trial was granted on grounds that the verdict was excessive, unsupported by the evidence, and influenced by passion and prejudice.

Susan Cook was walking across Main Avenue in Fargo on her way to work when the collision occurred. She was crossing in the crosswalk with the "walk" light in her favor. Clyde Stenslie was stopped on Eighth Street, facing south, at the intersection of Main Avenue preparing to turn left onto Main Avenue when the light turned green. As he made the turn he was facing into the sun, which made it difficult for him to see. Cook saw Stenslie's car approach her as she crossed, at which time she quickened her walking pace but did not run. She was almost to the center of the intersection when she was struck by the front end of Stenslie's car. Stenslie did not see her until she rolled over the front of his car. Stenslie stopped, and within a few moments Cook was taken by ambulance to the hospital.

Cook suffered a fractured sacrum, along with some bruising and soreness on the outer part of her left hip where she was hit. She was hospitalized for six days to allow for observation of any numbness or loss of neurological function due to the fracture. A slight numbness on one inside thigh was found immediately after the accident but disappeared shortly thereafter, and no neurological deficit was observed. Treatment in the hospital consisted primarily of bed rest and warm baths to relieve pain and discomfort.

After discharge from the hospital, Cook stayed with her parents for a week before returning to her job as a secretary, first for half days for a period of about two to three weeks, then full time. She made visits to her doctor from the time of the accident in March 1973, until December of 1973, when X-rays showed the fracture to be healed.

After the jury returned a verdict in the amount of $50,000 in the action commenced by Cook against Stenslie for negligence, the trial court granted Stenslie's motion for new trial as to both liability and damages.

Stenslie in his motion for a new trial contended that the verdict was influenced by passion and prejudice as indicated by excessive damages in the amount of $50,000; that the verdict was reached in less than one hour and three minutes of deliberation; that special damages were only $703.10; that Cook claimed no loss of wages or impairment of future earnings; that she had not seen a doctor for the injuries suffered in the accident for two years before the trial; that she sustained only a ten percent permanent disability of the sacrum which did not affect her range of motion; that no neurological deficit was observed; and that Cook was in two auto accidents subsequent to the collision with Stenslie.

Cook argues in this appeal that granting of a new trial was an abuse of the trial court's discretion.

We begin with the undisputed premise that a motion for new trial made under Rule 59(b), North Dakota Rules of Civil Procedure, is addressed to the sound discretion of the trial court, and the trial court's action in granting such a motion will not be disturbed on appeal unless a manifest abuse of discretion is shown. Skjonsby v. Ness, 221 N.W.2d 70 (N.D.1974); Long v. People's Department Store, 95 N.W.2d 904 (N.D.1959); 22 Am.Jur.2d Damages § 366.

When the motion is based upon insufficient evidence to support the verdict, the trial court is vested with a margin of discretion to weigh the evidence, not as a "thirteenth" juror but as the presiding judge, and, within certain limitations to act upon its own judgment regarding the weight and credibility of the evidence. Wrangham v. Tebelius, 231 N.W.2d 753 (N.D.1975).

When the motion is made on grounds of passion or prejudice, this court has held that the motion implies a duty on the part of the trial court to consider and weigh the evidence. Lake v. Neubauer, 87 N.W.2d 888 (N.D.1958); Loveland v. Nieters, 79 N.D. 1, 54 N.W.2d 533 (1952).

The power of the trial court to exercise its discretion on this motion must be clearly distinguished from our power on appeal, which is limited to a determination of whether grant of the motion was an abuse of discretion.

In Maier v. Holzer, 123 N.W.2d 29 (N.D.1963), Justice Morris in discussing motions for new trial quoted approvingly from an Ohio decision as follows:

". . . A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury. . . . But, where a court finds a judgment on a verdict manifestly against the weight of the evidence, it is its duty to set it aside.

". . . in order to reverse the action of a court granting a new trial upon the weight of the evidence, it is necessary to show an abuse of discretion upon its part, and we have held that the meaning of the term, 'abuse of discretion,' in relation to the sustaining of a motion for a new trial implies an unreasonable, arbitrary or unconscionable attitude upon the part of the court."

In determining whether or not the trial court abused its discretion in granting a new trial, we refer to the standards previously enunciated by this court in Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228 (1928), where the court stated:

"The discretion of the trial court should be exercised in all cases in the interest of justice, and, where it appears to the judge that the verdict is against the weight of the evidence, it is his imperative duty to set it aside. State v. Stepp, 48 N.D. 566, 185 N.W. 812; State v. Weber, 49 N.D. 325, 191 N.W. 610; Kansas P. Ry. Co. v. Kunkel, 17 Kan. 145. 'We do not mean,' says Justice Brewer in the Kansas case, supra, at page 172, 'that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and, when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.' " ¹

See also, 58 Am.Jur.2d New Trial § 137, page 342; 66 C.J.S. New Trial § 71, page 227; and Rule 59(b)(5) and (6), North Dakota Rules of Civil Procedure.

Where the motion is based upon an excessive verdict influenced by passion or prejudice, the standard for what constitutes an excessive verdict varies but generally includes one or more of the following: the amount is so unreasonable and extreme as to indicate passion or prejudice on the part of the jury, Eriksen v. Boyer, 225 N.W.2d 66 (N.D.1974); the award is so excessive as to be without support in the evidence, Anderson v. Miller's Fairway Foods, 225 N.W.2d 579 (N.D.1975); and Strandness v. Montgomery Ward, 199 N.W.2d 690, 694 (N.D.1972); the jury verdict is so excessive as to appear clearly arbitrary, unjust, or such as to shock the judicial conscience, Skjonsby v. Ness, 221 N.W.2d 70 (N.D.1974), 22 Am.Jur.2d Damages § 366. If the trial court, based on all the evidence and proceedings before it, found any of these, it did not abuse its discretion in granting a new trial.

In addition, this court has repeatedly held that a stronger showing is required to reverse the granting of a new trial than to reverse an order denying a motion for new trial. Wrangham v. Tebelius, supra; Johnson v. Frelich, 165 N.W.2d 343 (N.D.1969). In Wagoner v. Bodal, 37 N.D. 594, 164 N.W. 147, 149 (1917), we said:

"As a new trial merely affords the parties an opportunity to submit the questions to another jury,...