Erdahl v. Hegg

• Decision Date: 22 August 1961
• Docket Number: No. 7952,7952
• Citation: 110 N.W.2d 355
• Parties: Ruth ERDAHL, Plaintiff and Respondent, v. Neil HEGG, Defendant and Appellant. Seven ERDAHL, Plaintiff and Respondent, v. Neil HEGG, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 355

110 N.W.2d 355

Ruth ERDAHL, Plaintiff and Respondent, v. Neil HEGG, Defendant and Appellant.

Seven ERDAHL, Plaintiff and Respondent, v. Neil HEGG, Defendant and Appellant.

No. 7952.

Supreme Court of North Dakota.

Aug. 22, 1961.

Syllabus by the Court

1. One of the causes for which a new trial may be granted under the provision of Rule 59(b), N.D.R.Civ.P., is:

'Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.'

2. Under Rule 26, N.D.R.Civ.P., a party may take the testimony of any person by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action, or for both purposes.

The deponent may be examined regarding any matter not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the identity and location of persons having knowledge of relevant facts.

A party will not be deemed to make a person his own witness for any purpose by taking his deposition under Rule 26.

It is not a ground for objection that the testimony of a deponent will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

3. Where a movant for a new trial on the ground of newly discovered evidence knew the identity of an available witness under circumstances that pointed to the probability that the witness had knowledge of relevant facts which she refused to disclose until after trial, and the facts which she ultimately disclosed could have been discovered by disclosure proceedings under Rule 26, N.D.R.Civ.P., those facts do not constitute newly discovered evidence which could not with reasonable diligence have been discovered and produced at the trial.

Nilles, Oehlert & Nilles, Fargo, for plaintiffs and respondents.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendant and appellant.

MORRIS, Judge.

This opinion embraces two actions for damages growing out of a collision between two automobiles at the intersection of First Street North and Tenth Avenue North in the City of Fargo on October 2, 1955, at approximately 7:45 o'clock p. m. When the collision occurred, the plaintiff Ruth Erdahl was driving her husband's Packard automobile in a southerly direction on First Street North. She was the sole occupant of that car. Neil Hegg, the defendant, was driving his automobile in an easterly direction on Tenth Avenue North. The streets intersected at right angles. Ruth Erdahl seeks damages for her personal injuries. Her husband, Sven Erdahl, seeks to recover for the medical and hospital expenses incurred on behalf of his wife, for the deprivation of her companionship, society and assistance, and for damage to his automobile. The cases were consolidated for trial. They have been tried twice. The first trial resulted in verdicts for the plaintiffs. On appeal to this court, new trials were granted for error in instructions of the court pertaining to the legal effect of an ordinance of the City of Fargo purporting to regulate the speed of motor vehicles on city streets. Erdahl v. Hegg, N.D., 98 N.W.2d 217. Upon a retrial of the cases, which included a counterclaim by the defendant against Sven Erdahl for damages to the defendant's automobile, the jury, on April 6, 1960, rendered a verdict for the dismissal of the complaint in each action and for a dismissal of defendant's counterclaim.

The plaintiffs moved for a new trial on the ground of newly discovered evidence. The defendant appeals from the trial court's order granting a new trial.

The defendant asserts that the trial court erred in granting a new trial because of the failure of the plaintiffs to use due diligence in discovering the proposed new evidence, that such evidence is cumulative, and that it is not probable that it would change the result of the trial.

Rule 59 of the North Dakota Rules of Civil Procedures sets forth causes for new trial, among them being:

'Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.'

This is the identical language used in the statute that was superseded by the rule (Section 28-1902, NDRC 1943).

The proposed newly discovered evidence is presented in the affidavits of two persons, Mrs. C. Brekke, and Stephen Auenson, her grandson, who was born October 4, 1948 and lacked two days of being seven years old at the time of the accident. Both affidavits are dated July 21, 1960. Mrs. Brekke states that she is 65 years of age and has resided continuously at her present address, 919 Second Street North, Fargo, since 1943. The front of her house faces west on Second Street. Her kitchen is on the north side of the house. There are two kitchen windows facing Tenth Avenue that are approximately table height, each of which is 4 ft. X 2 ft. in size. The evening of the accident she was having lunch with her grandson as she sat in a chair on the east side of the kitchen table. The grandson was sitting on the west side of the table. Her attention was attracted by the sound of an automobile motor. She looked out a kitchen window and saw an automobile traveling east on Tenth Avenue 'at a fast rate of speed.' She made an exclamation to her grandson when she heard a screeching noise followed by a loud crash. No other automobile passed the windows going east on Tenth Avenue. (The intersection at which the accident occurred is about 250 feet east of the kitchen windows.) The car that Mrs. Brekke heard and observed had its headlights on, as it was dark outside. She further states that she was contracted at work by a lawyer who was investigating the accident but she refused to discuss the facts with the lawyer because of her fear of lawyers based on an unfortunate family matter and her desire not to get involved in the accident in any way.

Stephen Auenson, the grandson, states in his affidavit that he has completed the Sixth Grade in school and that his marks consist mostly of A's, with some B's. He attends Sunday School regularly and realizes the importance of telling the truth at all times and that if a person does not tell the truth he is subject to punishment under the law. He also realizes the seriousness of an oath. He corroborates his grandmother with respect to the incident in the kitchen immediately preceding the accident. He further states that from what he saw of the automobile he is of the opinion that it was traveling at a speed of 35 to 40 miles an hour as it proceeded east on Tenth Avenue. After he heard the crash he ran out of the house and to the scene of the accident. One of the vehicles involved was the vehicle he had just seen traveling east on Tenth Avenue. He also states that he had not talked to the plaintiffs or their attorney or in any way discussed the accident with them prior to July 20, 1960.

While the proffered evidence is of doubtful probative...