Farmers Ins. Exchange v. Arlt

• Decision Date: 12 November 1953
• Docket Number: No. 7390,7390
• Citation: 61 N.W.2d 429
• Parties: FARMERS INS. EXCHANGE v. ARLT et al.
• Court: North Dakota Supreme Court

Page 429

61 N.W.2d 429

FARMERS INS. EXCHANGE v. ARLT et al.

No. 7390.

Supreme Court of North Dakota.

Nov. 12, 1953.

Syllabus by the Court.

1. Where a motion for judgment notwithstanding the verdict is made within the ten days required by Chapter 204 SLND 1951, served upon the counsel for the opposite party and a date for hearing fixed by the court it is not a jurisdictional requisite that it be filed in the clerk's office within that time.

2. A right of action at law arises from the existence of a primary right in the plaintiff and invasion of that right by some act or omission on the part of the defendant. The facts which establish the existence of that right and its violation constitute the cause of action.

3. Where an automobile accident results in injury to the person and property of an individual, but one cause of action arises in favor of the injured party for the recovery of damages.

4. Where the owner of an automobile has been reimbursed by his insurer for damages to his automobile in a collision the insurer is subrogated to the claim of the owner against the wrongdoer, claimed to have caused the damage, to the extent of his payment. Such subrogation gives the insurer no more rights than the insured had and only one suit can be brought for all damages arising out of a single cause of action.

5. Where the insured has been partially paid by his insurer for the damage to his automobile, action against the wrongdoer may be brought in the name of the insured to recover all damages caused by the collision.

6. A suit by assignee of a chose in action is subject to any defense thereto existing at the time of the assignment or before notice of such assignment was given to the defendant.

7. A judgment rendered in an action brought by the insured against the wrongdoer to recover damages for all injuries to person and to property suffered by him in a collision of motor vehicles is a complete bar to an action brought by his insurer against the wrongdoer for the same property damage.

J. K. Murray, Bismarck, for appellant.

John A. Zuger, Bismarck, for respondents.

GRIMSON, Judge.

Plaintiff brings this action for damages alleged to have been caused in a motor vehicle collision between one John A. Logan and defendant, Jacob P. Arlt.

The evidence shows that John A. Logan was the owner and operator of a 1948 Buick automobile and carried collision insurance thereon with this plaintiff; that Jacob P. Arlt was an employee of the State Highway Department; that the State Highway Department carried liability insurance for its employees with the defendant, United States Fidelity & Guaranty Company; that on May 20, 1949, a collision occurred on U. S. Highway No. 10 about four miles east of Glen Ullin between the automobile driven by Logan and the highway truck driven by Arlt as Logan was attempting to pass the said truck. The automobile was damaged and Logan injured. Plaintiff paid Logan $694.85 on his property damage under the provisions of the insurance policy. Thereupon John A. Logan assigned his claim for property damage against the defendant, Arlt, to the plaintiff authorizing it to bring suit if necessary.

On January 20, 1951, said John A. Logan brought suit in the district court of Burleigh County, North Dakota, against Jacob P. Arlt, and the State Highway Department of North Dakota, for the recovery of $1,368.56 for property damages and $1,050 for personal injuries resulting from this collision. That case was tried in June 1951 and the jury returned a verdict of dismissal for the defendants. Judgment was entered thereon and no appeal was taken.

On October 15, 1951, the present action was commenced. It is brought on the same collision but only for the property damage in the same amount of $1,368.56. Plaintiff alleges that it is the owner of such claim to the extent of $694.85 and as to the balance of such claim that plaintiff holds same in trust for the said John A. Logan.

The defendant, Arlt, answers denying liability and alleging that the suit theretofore brought by John A. Logan for the same property damage was a complete bar to this action.

The defendant, United States Fidelity & Guaranty Company denied liability under its insurance contract and pleads the suit of Logan against the defendant, Arlt, as a bar to this action.

At the close of the testimony the defendant, United States Fidelity & Guaranty Company moved for the dismissal of the action as against it on the grounds there was no liability shown. This motion was denied. Then both defendants moved for a dismissal upon the same grounds and upon the further grounds that the prior action between John A. Logan and the defendant, Jacob P. Arlt, was for the same damages here claimed resulting from the same collision; that judgment of dismissal thereon was a complete bar to the present action, and on the further ground of contributory negligence by Logan. This motion was denied. Thereupon both defendants moved for a directed verdict upon all the grounds stated in the defendants' motions for dismissal. These motions were resisted and denied.

On December 9, 1952, a motion for judgment notwithstanding the verdict on behalf of each defendant, separately, was presented to the court and set by the court for hearing on December 23, 1952, at 2 o'clock P.M. Service of said motion and a notice of hearing was admitted by the attorney for the plaintiff on December 9, 1952. On December 23, 1952, plaintiff's attorney appeared specially objecting to the jurisdiction of the court on the ground said motion was not made within ten days subsequent to the rendition and filing of the judgment. On the 16th day of February, 1953, the court set aside the judgment and granted the motions of both defendants for judgment in their favor notwithstanding the verdict. The plaintiff appeals from said orders and the judgments entered thereon.

The first contention of plaintiff is that the motion for judgment notwithstanding the verdict was not made within the ten days as required by Chapter 204 SLND 1951 because it had not been filed in the clerk's office within that time. Said section reads in part:

'* * * Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to the have the verdict and the judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict * * *.'

The statute does not say that the motion must be filed with the clerk within ten days. It is admitted that the motions were presented in open court within five days after the return of the verdict and served upon the plaintiff's attorney. The motions definitely state that the defendant 'moves that judgment be entered in its favor notwithstanding the verdict.' The court and plaintiff's attorney were engaged in another jury trial at the time so that the motions could not be heard then but the court set December 23rd as the date for the hearing. The trial court overruled the plaintiff's objection to the jurisdiction and held 'that the notice of motion and the motions were served on plaintiff's attorney and presented to the court on Dec. 9th. 1952 * * * and that the court had jurisdiction to rule on the motions.' Failure to file the written motion for judgment notwithstanding the verdict with the clerk of the district court within ten days after the rendition of the verdict was not a jurisdictional prerequisite to its consideration by the trial court or by this court on appeal. Nicholson v. Roop, N.D., 62 N.W.2d 473.

The motions for judgment notwithstanding the verdict are based on the motions for a directed verdict made by the defendant at the close of the case. Plaintiff raises two objections to those motions. First he says that no particulars are set forth as to the grounds upon which the motions are made in that the motions merely stated that they are made 'upon all of the grounds and for all the reasons stated in both motions for dismissal.' When the attorney for the defendants had made that statement the following record was made:

'Mr. Zuger: Can I have the understanding that I do not need to repeat all of the grounds in this motion that I stated in the other motions?

'Mr. Murray: I am not running the court.

'The Court: Yes, you may have the grounds for a directed verdict the same as those that you mentioned in your two motions for dismissal.'

No objection to that ruling was made by the attorney for the plaintiff. Under those circumstances the objection now made to that proceeding is without merit.

Plaintiff next contends that the motions for dismissal did not themselves specify the particulars in which the evidence was insufficient to establish a cause of action against the defendants.

It is true that this court has repeatedly laid down the salutary rule that motions for directed verdicts upon ground of insufficiency of the evidence need not be considered by the trial court nor will they be considered on appeal unless the particulars are specifically pointed out. Jacobs v. Bever, N.D., 55 N.W.2d 512; Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429, and cases cited on pages 259 and 260 of 77 N.D., and on pages 433 and 434 of 42 N.W.2d.

The purpose of this rule is to apprise the opposing counsel and the court of the failure of the evidence to sustain the law question involved. This must be done with sufficient particularity so that the court and counsel can see forthwith what, if any, merit there is to the motion. This rule has generally been applied to cases where the motion for a directed verdict and for judgment notwithstanding the verdict have been denied. See cases cited in Westerso v. City of Williston, supra.

The motions in the case at bar do point out that there was evidence of a prior lawsuit involving the same issues between the plaintiff's insured, Logan, and the defendant, Arlt, wherein a jury found in favor of defendant, Arlt; that prior thereto plaintiff had...