Crosby v. Sande, 8603

• Decision Date: 23 September 1970
• Docket Number: No. 8603,8603
• Parties: Ray CROSBY, Plaintiff and Respondent, v. Martin SANDE and Monte L. Sande and Robert Ward, Defendants and Appellants, Lyle Ward, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 164

180 N.W.2d 164

Ray CROSBY, Plaintiff and Respondent, v. Martin SANDE and Monte L. Sande and Robert Ward, Defendants and Appellants, Lyle Ward, Defendant.

Civ. No. 8603.

Supreme Court of North Dakota.

Sept. 23, 1970.

Syllabus by the Court

1. Where the trial court granted a new trial on grounds which were set forth by a party and such grounds were not on the court's owner initiative, Rule 59(i), N.D.R.Civ.P., is not controlling.

2. When an appeal is taken from an order of the trial court granting a new trial, the determinative question before this court on appeal from that order granting a new trial is whether the trial court had the grounds to exercise its discretion pursuant to Rule 59(b), N.D.R.Civ.P., and, if so, whether the trial court abused that discretion.

3. A motion for a new trial is addressed to the sound judicial discretion of the trial court. The discretion to be exercised by the trial court is a legal discretion to be exercised in the interests of justice and, where the motion is granted, it must appear that the alleged cause or ground had actual existence.

4. An order granting a new trial will not be reversed as readily as an order denying a new trial, since such order granting a new trial does not make a final determination. Appellate courts are much more reluctant to interfere with the action of a trial court granting a new trial than they are to interfere with the action of a trial court denying a new trial.

5. A motion for a judgment notwithstanding the verdict can be denied and a motion for a new trial granted on the same record.

6. When a party has testified that he was driving with care and prudence, he may be cross-examined as to whether he had been drinking, since such cross-examination is relevant to the question of the manner in which he was driving. What effect the consumption of intoxicants had upon the operation of his vehicle, if at all, would be a question for the jury.

7. For reasons stated in the opinion, the trial court did not abuse its discretion in granting a new trial.

Letnes & Marshall, Grand Forks, for Martin Sande and Monte L. Sande, defendants and appellants.

A. J. Fosaaen, Cando, for Robert Ward, defendant and appellant.

Duffy & Haugland, Devils Lake, for plaintiff and respondent.

PAULSON, Judge.

This is an appeal from an order granting a new trial to the plaintiff, Ray Crosby. This action arose as the result of a motor vehicle collision which occurred on August 13, 1966, at approximately 11:30 in the evening. The accident took place about one mile south of the city of St. John, North Dakota, on Highway No. 30. A 1966 Chevrolet pickup truck owned and operated by Ray Crosby, which was being driven in a southerly direction, collided with the rear end of a 1955 Chevrolet sedan owned and operated by the defendant, Robert Ward, whose vehicle, with its motor running, was stopped in the lane of travel for vehicles proceeding in a southerly direction. The defendant, Monte L. Sande, at the time of the accident, was sitting in his 1957 Chevrolet automobile, which vehicle, with its motor running, was stopped in a position, with its headlights on and facing in a northerly direction, on the east edge of the highway so that he could visit with the defendant Robert Ward, who was also sitting in his vehicle on the opposite side of the road. Crosby asserted that the headlights of the Sande vehicle blinded him so that he did not see the Ward vehicle until it was too late to avoid the accident.

The case was tried to a jury which returned a special verdict finding that the defendant Monte L. Sande was not negligent in the operation of the vehicle which he was driving; that the defendant Robert Ward was negligent in the operation of his vehicle; and that the plaintiff Ray Crosby, was contributorily negligent as a matter of law in the operation of his vehicle. Pursuant to this verdict, a judgment was entered on April 13, 1968, dismissing Crosby's action.

On April 25, 1968, Crosby made a motion for a judgment notwithstanding the verdict or in the alternative for a new trial. Crosby's motion was resisted by the defendants. The trial court denied the motion for a judgment notwithstanding the verdict and granted the motion for a new trial. The Sandes and Ward have appealed from the order of the trial court granting a new trial. It should be noted that no appeal was taken from the denial of the motion for a judgment notwithstanding the verdict by Crosby, and, therefore, any issue relevant to the denial of a motion for judgment notwithstanding the verdict is not before this court and will not be discussed.

The pertinent parts of Crosby's motion for a new trial are as follows:

'The evidence is insufficient to sustain a verdict and is sufficient to establish as a matter of law the liability of the defendants to the plaintiff in that the evidence shows beyond question that on or about 11:30 P.M. on August 13, 1966, the defendant Robert Ward parked his automobile facing South on a highway with his lights off, and that the defendant Monte L. Sande parked his automobile on the same highway facing North with his lights on, and that thereby they created an entrapment for the plaintiff who was proceeding in his lane of travel in a Southerly direction on the same highway and that by virtue of the fact that the lights from the Sande car partially blinded him as he approached the Ward car and by reason of the fact that the Ward car had no taillights the plaintiff was unable to see the Ward car in time to avoid a collision and that therefore both the defendants were negligent in setting a dangerous situation and the plaintiff was not negligent under the circumstances, and that accordingly the plaintiff was entitled to a directed verdict reserving to the jury only the question of damages.

'ERRORS OF LAW

'1. Notwithstanding the fact that counsel for the defendants was admonished by the Court he continually mentioned in argument that liquor had been consumed by the plaintiff prior to the accident and thereby created prejudice against the plaintiff;

'2. That the verdict was against the evidence and was given under the influence of passion and prejudice;

'3. All rulings adverse to the plaintiff upon the trial of the action.'

We are next confronted with the issue of whether Crosby's motion for a new trial was timely. The Sandes and Ward urge that under Rule 59(i), North Dakota Rules of Civil Procedure, the order granting the motion for a new trial was not timely because the court's decision is based upon a specification of error not raised by Crosby, but on the court's own initiative, and since the court did not order a new trial on its own initiative within ten days from the entry of the judgment the order granting the motion for a new trial did not come within the time set forth in Rule 59(i). Rule 59(i), N.D.R.Civ.P., provides:

'(i). On initiative of court. Not later than ten days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.'

The contentions of Ward and the Sandes are without merit. A perusal of Crosby's motion for a new trial shows that he included in his petition the grounds upon which the trial court granted the new trial. A review of the record reveals that Crosby's motion was accompanied by a brief detailing and definitizing the various tactics employed by counsel for Ward that the Sandes by alluding to and referring by innuendo to liquor, so that the alleged intoxication of Crosby would pervade the trial and result in an adverse verdict. The verdict of the jury was returned and received by the trial court on March 22, 1968. The motion for a new trial was served upon opposing counsel by mail on April 25, 1968. Rule 59(c), N.D.R.Civ.P., is applicable and, since the motion was made within sixty days, the argument of counsel is not persuasive. We conclude that the motion was made within the 60-day period and, further, that Rule 59(i) is not controlling.

When an appeal is taken from an order of the trial court granting a new trial, the determinative question before this court on appeal from that order granting a new trial is whether the trial court had the grounds to exercise its discretion pursuant to Rule 59(b), N.D.R.Civ.P., and, if so, whether the trial court abused that discretion. Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 (N.D.1968).

The trial court granted the motion for a new trial on the basis that the attempted interjection during the trial of the issue of intoxication was prejudicial to Crosby's case and that the jury's verdict against Crosby resulted from improper influence and thereby prevented him from having a fair trial. The pertinent provision of Rule 59(b), N.D.R.Civ.P., is as follows:

'(b) Causes for new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

'1. 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; * * *'

A motion for a new trial is addressed to the sound judicial discretion of the trial court. Muhlhauser v. Archie Campbell Construction Co., Supra, 160 N.W.2d at 525; Sullwold v. Hoger, 110 N.W.2d 457 (N.D.1961); Hamre v. Senger, 79 N.W.2d 41 (N.D.1956). The discretion to be exercised by the trial court is a legal discretion to be exercised in the interests of justice and, where the motion is granted, it must appear that the alleged cause or ground had actual existence. Sucher v. Oliver-Mercer Electric, 151 N.W.2d 321 (N.D.1967); Maier v. Holzer, 123 N.W.2d 29 (N.D.1963); Mann v. Policyholders' Nat. Life Ins. Co., 78 N.D. 724, 51 N.W.2d 853 (1952).

An order granting a...