Ferderer v. N. Pac. Ry. Co., No. 7009.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCHRISTIANSON
Citation26 N.W.2d 236,75 N.D. 139
Decision Date04 March 1947
Docket NumberNo. 7009.
PartiesFERDERER v. NORTHERN PACIFIC RY. CO.

75 N.D. 139
26 N.W.2d 236

FERDERER
v.
NORTHERN PACIFIC RY.
CO.

No. 7009.

Supreme Court of North Dakota.

Jan. 18, 1947.
Rehearing Denied March 4, 1947.


Appeal from District Court, Morton County; Miller, Judge.

Action by J. J. Ferderer against the Northern Pacific Railway Company to re-recover damages allegedly caused by flooding of premises. Judgment for defendant, and plaintiff appeals.

Reversed.


Syllabus by the Court

1. N.D.R.C.1943, Sec. 28-1419, which provides that where information regarding any point of law arising in a case is given to a jury after they have retired for deliberation, such information ‘must be given in the presence of or after notice to the parties or counsel’, is mandatory.

2. Generally the failure to comply with the provisions of a mandatory statute in relation to instructions to the jury and communications between the trial judge and the jury constitutes error per se and must be deemed to be prejudicial, either as a matter of law, or unless and until it is shown that no prejudice resulted or could have resulted from the noncompliance.

3. Where it is shown that the trial judge entered the room to which the jury had retired to deliberate upon the verdict and gave additional oral instructions in the absence of the court reporter, and in the absence and without the consent of or notice to the parties or their attorneys, it will be presumed that prejudicial error was committed.

4. The general rule that on appeal all reasonable presumptions are indulged in favor of the judgment or order from which the appeal is taken rests on the assumption that in all legal proceedings judicial tribunals and officials act according to law. When the appellant shows affirmatively from the record on the appeal that error was committed by the trial court which might operate to appellant's injury, it will not be presumed that such error was in fact harmless or nonprejudicial.

5. A presumption of prejudice arises from an error which might have operated to the prejudice of the person against whom it was committed; and when the appellant presents a record on appeal showing affirmatively that an error was committed upon the trial, which presumptively operated to the injury of the appellant, the burden is on the respondent on appeal to show that the appellant was not in fact injured by such error.

6. Where error is shown which might operate to the injury of the party against whom it was committed it will not be presumed, because the entire evidence is not in the record, that the error was harmless or obviated, or that the right result was reached.

7. In the instant case it it held for reasons stated in the opinion that error which might operate to the injury of the appellant was committed by the trial court and that the record presented on this appeal does not show that such error was harmless or obviated.

[26 N.W.2d 237]


Murray & Murray, of Bismarck, for appellant.

Conmy & Conmy, of Fargo, for respondent.


CHRISTIANSON, Chief Justice.

The plaintiff brought this action to recover damages alleged to have been sustain in March, 1943 as a result of the flooding of premises then occupied by him in

[26 N.W.2d 238]

Morton County in this state; and which flood it is alleged was caused by the negligence of the defendant in the construction of certain works made for the purpose of changing the course of the Cannonball river. The plaintiff alleges that he sustained damages in the sum of $2900.82. The defendant interposed an answer denying generally the allegations of the complaint, except as admitted, qualified or explained. The defendant denies any negligence and alleges that the dykes and embankments were designed and constructed pursuant to proper engineering standards and were adequate to take care of all normal waters and flood waters reasonably foreseeable; also, that at the time of the flood the waters did not reach a greater height than they would have reached if the river had remained in its natural course. It is further alleged that the flood was entirely unprecedented and unforeseeable; that the premises in question were occupied by plaintiff as a tenant for hire and that his landlord held title thereto under covenants which released the defendant from any liability such as that claimed in this action, and that the plaintiff had constructive notice and knowledge of such covenants.

The action was tried to the jury upon the issues formed by the pleadings. The court submitted the case to the jury for a general verdict and also submitted the following special interrogatory, ‘Was the flood that occurred on or about March 25, 1943 in the valley of the Cannonball River in the vicinity of and on the land occupied by the plaintiff an extraordinary and unprecedented flood?’ In its instructions the court gave directions to the jury for the return of a sealed verdict in the event they were unable to agree upon and return a verdict during the open session of the court. The jury returned a verdict in favor of the defendant. Judgment was entered pursuant to the judgment. Thereafter the plaintiff moved for a new trial upon several grounds, among others, (1) irregularities in the proceedings of the court by which the plaintiff was prevented from having a fair trial; and (2) errors in law occurring at the trial and excepted to by the plaintiff. The motion for a new trial was denied and plaintiff has appealed from the judgment and from the order denying his motion for a new trial.

Among the errors assigned by the plaintiff on the motion for a new trial and on this appeal are that the trial judge communicated with the jury and gave additional instructions after the cause had been submitted to the jury, in the absence of counsel for the parties and without notice to or the consent of the parties or their counsel. In support of such assignment of error the plaintiff submitted affidavits of five of the jurors and of the counsel for the plaintiff, and also the entries made by the clerk of the court in the minutes. No affidavits were submitted, or other showing made, in opposition to that made by the plaintiff. From the affidavits so submitted it appears that some years ago the courthouse of Morton County was destroyed by fire and that since such destruction the Memorial Building in the City of Mandan has been utilized for county courthouse purposes. The auditorium in the building has been utilized as courtroom for the district court. This case was tried in such auditorium. The case was submitted to the jury in the late afternoon-sometime before 5:00 o'clock P.M.-on March 9, 1945. After the trial judge had given the instructions, the jury retired for deliberation to a room reserved for such purposes adjoining the auditorium. The court suggested, however, that after the court had recessed and the auditorium had been vacated the jury might be taken to the auditorium and permitted to utilize the same while they were deliberating. Thereafter, and while the jury were still deliberating, about 12:30 A. M. on March 10, 1945, the trial judge, together with the clerk of the court and the bailiff, entered the room then occupied by the jury, namely the auditorium. The court reporter was not present and was not called. The attorneys for the respective parties were not notified or afforded an opportunity to be present and had no knowledge of what transpired.

According to the affidavit of one of the jurors the foreman of the jury and the trial judge ‘had a conversation in substance as follows: That the said foreman asked the said Judge in substance that if the flood was an unprecedented one, would the railway

[26 N.W.2d 239]

company be liable for the damages caused by such flood; that in response thereto, the said Presiding Judge replied to her in substance, that if the flood was an unprecedented flood, then the railway company would not be liable for the damages that were caused from the flood.’ According to the affidavit of other jurors ‘there was then a conversation’ between the foreman of the jury and the trial judge ‘with reference to the flood involved in the case; that the said foreman asked the Judge, in substance, that if the flood was unprecedented one, could any person or corporation be held liable for damages caused by the flood; that in reply thereto, the said presiding judge replied to her, in substance, that if the flood was an extraordinary or unprecedented flood then the railroad company would not be liable for the damages that resulted from that flood.’

The minutes certified by the clerk as part of the record contain the following recital:

‘March 10, 1945

‘Court called to order at 12:30 o'clock A. M., March 10, 1945. Jurors in the case of J. J. Ferderer vs Northern Pacific Railway Company reporting. Court asks jurors if they have arrived at a verdict. Foreman Lorraine Huisinger replies ‘We have. We have not reached a verdict, we have a split decision.’ Court asks jurors if they think they can arrive at a verdict. Foreman replies she doesn't know. Foreman asks court question as to the charge given in the instructions. Court asks what item she refers to and foreman replies ‘It was the one on the fact that if the flood was extra-ordinary or unprecedented that no person or corporation could be held responsible for the condition caused by that flood.’ Court replies, ‘Yes, that was the substance of the instruction, that if you found from a fair preponderance of the evidence, and the burden of proving that preponderance of the evidence was upon the defendant, was that if this flood condition was an extra-ordinary and unprecedented flood the railroad company would not be liable for the damage that resulted from that flood.’ Jurors retire for further deliberation and court adjourns to 9:00 o'clock A. M., March 10, 1945.'

The forms of the general verdict and the special interrogatory submitted to the jury contained blank spaces for the insertion of the date. The special interrogatory as returned by the jury was dated March 9 and the general...

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12 practice notes
  • Andrews v. O'Hearn, No. 10837
    • United States
    • United States State Supreme Court of North Dakota
    • May 7, 1986
    ...jury communication with the judge, as can be seen by the foreman's immediate response. According to Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236 (1947), once a party shows affirmatively from the record that error in communicating ex parte with the jury was committed whic......
  • Brink v. Curless, No. 8883
    • United States
    • United States State Supreme Court of North Dakota
    • July 13, 1973
    ...that it shall not be done by other persons or in another manner.' 26 Am. & Eng.Enc.Law, p. 605'. Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236, 241 Under these rules, only the county auditor and he or she alone is authorized to make and file the affidavit of proof of serv......
  • Leake v. Hagert, No. 8569
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1970
    ...it as error in his motion for a new trial and also on appeal to this court. Leake contends that Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236 (1947), is controlling, where the court said that the requirements of § 28--1419 of the North Dakota Revised Code of 1943 (§ 28--1......
  • Ferderer v. N. Pac. Ry. Co., No. 7102.
    • United States
    • North Dakota Supreme Court
    • April 6, 1950
    ...in the construction and maintenance of diversion channel and dikes and embankments. Judgment affirmed. Burke, J., dissenting. See also 75 N.D. 139, 26 N.W.2d 236. [42 N.W.2d 217]Syllabus by the Court 1. The owner of land through which a stream flows has the right to dam or change the course......
  • Request a trial to view additional results
12 cases
  • Andrews v. O'Hearn, No. 10837
    • United States
    • United States State Supreme Court of North Dakota
    • May 7, 1986
    ...jury communication with the judge, as can be seen by the foreman's immediate response. According to Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236 (1947), once a party shows affirmatively from the record that error in communicating ex parte with the jury was committed whic......
  • Brink v. Curless, No. 8883
    • United States
    • United States State Supreme Court of North Dakota
    • July 13, 1973
    ...that it shall not be done by other persons or in another manner.' 26 Am. & Eng.Enc.Law, p. 605'. Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236, 241 Under these rules, only the county auditor and he or she alone is authorized to make and file the affidavit of proof of serv......
  • Leake v. Hagert, No. 8569
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1970
    ...it as error in his motion for a new trial and also on appeal to this court. Leake contends that Ferderer v. Northern Pacific Ry. Co., 75 N.D. 139, 26 N.W.2d 236 (1947), is controlling, where the court said that the requirements of § 28--1419 of the North Dakota Revised Code of 1943 (§ 28--1......
  • Ferderer v. N. Pac. Ry. Co., No. 7102.
    • United States
    • North Dakota Supreme Court
    • April 6, 1950
    ...in the construction and maintenance of diversion channel and dikes and embankments. Judgment affirmed. Burke, J., dissenting. See also 75 N.D. 139, 26 N.W.2d 236. [42 N.W.2d 217]Syllabus by the Court 1. The owner of land through which a stream flows has the right to dam or change the course......
  • Request a trial to view additional results

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