Farmers Union Grain Terminal Ass'n v. Briese, 8740

• Decision Date: 16 November 1971
• Docket Number: No. 8740,8740
• Citation: 192 N.W.2d 170
• Parties: FARMERS UNION GRAIN TERMINAL ASSOCIATION, a cooperative association, Plaintiff and Respondent, v. Walter BRIESE and Marvin Briese, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 170

192 N.W.2d 170

FARMERS UNION GRAIN TERMINAL ASSOCIATION, a cooperative association, Plaintiff and Respondent, v. Walter BRIESE and Marvin Briese, Defendants and Appellants.

Civ. No. 8740.

Supreme Court of North Dakota.

Nov. 16, 1971.

Rehearing Denied Dec. 17, 1971.

Syllabus by the Court

1. The time prescribed by Section 28--27--04, N.D.C.C., within which an appeal may be taken from a judgment is mandatory and jurisdictional, and where an appeal from a judgment is not taken within the statutory period the Supreme Court is without power to do more than dismiss the appeal.

2. On an appeal from an order denying a motion for judgment notwithstanding the verdict, the only grounds which will be considered are those which were assigned on the motion for a directed verdict.

3. On review of an order denying a motion for judgment notwithstanding the verdict the Supreme Court is limited to a consideration of the evidence, and if the record is such that there is some issue of fact for the jury and it rendered a verdict thereon, the order will be affirmed.

4. In reviewing an order for judgment notwithstanding the verdict, the evidence will be considered in the light most favorable to the verdict. The motion for judgment notwithstanding the verdict admits the truth of all inferences and conclusions which can reasonably be drawn from the evidence which are favorable to the party opposing the motion.

5. In considering the sufficiency of the evidence on an appeal from an order denying a motion for a new trial, the Supreme Court will consider the evidence in the light most favorable to the verdict.

6. It was not error for the trial court to sustain an objection to a question asked of an expert witness which called upon the expert witness to pass upon the credibility of a previous witness who had testified at the trial.

7. Under our Rules of Civil Procedure an affirmative defense may be pleaded by answer to the complaint. A responsive pleading to an answer is not allowed unless ordered by the court, and averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Therefore, where contributory negligence is pleaded by answer and the evidence adduced in support thereof, taken together with all the other evidence in the case, fairly raises an issue under the doctrine of sudden emergency, it is proper for the trial court to instruct a jury on the doctrine.

8. The emergency doctrine is not a defense in negligence actions as the actor is not exonerated of negligence because an emergency may have existed. It is simply a principle of law which means that where action was taken in an emergency it is a factor to be considered by the jury in determining whether the actor exercised that degree of care which an ordinarily prudent person would have exercised under similar circumstances.

9. Where the owner bailed his farm tractor, which was not equipped with operable lamps as required by law to permit its use upon the highways of this state, and the bailee causes the farm tractor to be operated on the highway at night without lights, and an accident occurs resulting in an action for damages by the owner of the vehicle which collided with the unlighted farm tractor upon the highway, and the jury returns a verdict against the bailor, such verdict is upheld on appeal from an order denying a motion for a new trial where the evidence, when considered in the light most favorable to the verdict, permits findings that the bailor knew his farm tractor's lighting system was defective, that the farm tractor would be driven upon the highways in going to and from the work of the bailee, and that the bailor, when using the farm tractor in his own work, was in the practice of causing it to be operated in his fields until after dark.

DePuy, Fair & O'Connor, Grafton, for defendant and appellant Walter Briese.

Letnes & Marshall, Grand Forks, for defendant and appellant Marvin Briese.

Degnan, McElroy, Lamb & Camrud, Grand Forks, for plaintiff and respondent.

TEIGEN, Justice.

This is a suit in tort to recover for property damage to the plaintiff's International truck-tractor and trailer unit (hereinafter GTA semi) resulting from its collision with a farm tractor owned by the defendant, Walter Briese, and operated by an employee of the defendant, Marvin Briese. The case was tried to a jury which returned a verdict in favor of the plaintiff and against both defendants in the amount of $19,388, and dismissed the counterclaim of the defendant, Walter Briese, for damages to his farm tractor.

The defendants joined in one notice of appeal. According to the notice of appeal, both defendants appeal from the judgment and from an order denying a new trial. The defendant, Marvin Briese, also appeals from an order denying his motion for judgment notwithstanding the verdict. Walter Briese did not move for judgment notwithstanding the verdict.

The written notice of entry of judgment was served on both defendants on December 23, 1969. The notice of appeal was served on August 11, 1970, more than ninety days after the notice of entry of judgment had been served. Thus the provisions of Section 28--27--04, N.D.C.C., which provide that an appeal from a judgment may be taken within ninety days after written notice thereof, limit the time for an appeal and have not been complied with. This statute is mandatory and jurisdictional. Where an appeal has not been taken within the statutory period, this court is without power to do more than dismiss the appeal. State v. Jacobson, 156 N.W.2d 70 (N.D.1968); C. & M., Inc. v. Northern Founders Insurance Co. of N.D., 124 N.W.2d 471 (N.D.1963). For this reason the appeal by both defendants from the judgment is dismissed.

The dismissal of the appeal from the judgment leaves for our determination the appeal of Marvin Briese from the order denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and the appeal of Walter Briese from the order denying his motion for a new trial.

We shall first consider the trial court's order denying Marvin Briese's motion for judgment notwithstanding the verdict. Upon appeal from such an order, our review is limited to the grounds which were assigned on the motion for a directed verdict. Linington v. McLean County, 161 N.W.2d 487 (N.D.1968); Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968). On a review of an order denying a motion for judgment notwithstanding the verdict, we are limited to a consideration of the evidence. If the record is such that there is some issue of fact for the jury and the jury rendered a verdict thereon, then the motion for judgment notwithstanding the verdict should be denied. Pocta v. Kleppe Corporation, 154 N.W.2d 177 (N.D.1967); Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803 (1941).

In considering the evidence on a motion for judgment notwithstanding the verdict, the evidence must be considered in the light most favorable to the one in whose favor the jury returned a verdict. Pocta v. Kleppe Corporation, Supra; Linington v. McLean County, Supra.

The motion for judgment notwithstanding the verdict admits the truth of all inferences and conclusions which can reasonably be drawn from the evidence and which are favorable to the party opposing the motion. A motion should not be granted where there is an issue for the jury to pass on. Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Linington v. McLean County, 146 N.W.2d 45 (N.D.1966); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965). Furthermore, on an appeal from an order denying a motion for judgment notwithstanding the verdict, the only grounds which will be considered will be those which are assigned on the motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 401 (N.D.1961); Leach v. Kelsch, 106 N.W.2d 358 (N.D.1960).

We have carefully examined the court's rulings with reference to the motion for a directed verdict, which were made at the close of the presentation of all the evidence in the case, and have concluded that the defendant, Marvin Briese, would not have been entitled to a directed verdict at the close of the trial. For this reason we find the trial court did not commit error in denying Marvin Briese's motion for judgment notwithstanding the verdict.

We will next consider the defendants' respective motions for a new trial.

The salient facts in this case are that the plaintiff, Farmers Union Grain Terminal Association (hereinafter GTA), commenced this action against the defendants Walter and Marvin Briese to recover damages suffered by GTA as a result of the alleged negligence of the defendants, including a negligent bailment by the defendant, Walter Briese, of his farm tractor to the defendant, Marvin Briese, which farm tractor, while being operated upon a highway by an employee of Marvin Briese, collided with the large GTA semi being operated by GTA's employee, Lloyd Frankl. The collision occurred in the intersection of a township road and U.S. Highway 81 in Pembina County, North Dakota, at about 5:55 p.m., on November 2, 1967. The time of sunset at this point was established as occurring at 11.63 minutes after 5 p.m. on the date of the collision. Both vehicles were completely demolished and Marvin Briese's employee, Clifford Nelson, was killed. It appears that the farm tractor operated by Clifford Nelson was owned by Walter Briese but had been loaned to his brother, Marvin Briese, on November 1, 1967. Marvin Briese and employed Clifford Nelson to operate the farm tractor to do some field work and, on the evening of November 2, 1967, after completion of the day's work, Clifford Nelson was in the process of driving the farm tractor from the field to the home of Marvin Briese, located in Glasston, North Dakota. Clifford Nelson, operating the farm tractor, was proceeding in an easterly direction on the township road. It was an inferior highway and a stop sign was in...