Flaherty v. Butte Electric Ry. Co.
| Decision Date | 15 October 1910 |
| Citation | 111 P. 348,42 Mont. 89 |
| Parties | FLAHERTY v. BUTTE ELECTRIC RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Action by Richard M. Flaherty against the Butte Electric Railway Company and another. From an order granting plaintiff's motion for a new trial after verdict for him, defendants appeal. Affirmed.
W. M Bickford, Geo. F. Shelton, Peter Breen, and Chas. A. Ruggles for appellants.
The facts surrounding this case are set forth fully in Flaherty v Butte Electric Ry. Co. et al., 40 Mont. 454, 107 P. 416, which was an action by the minor, by his guardian, to recover damages sustained by the child. The present action is brought by the father of the same child to recover damages for the loss of the child's services from the date of the injury until the minor reached his majority, for costs of medical attention, etc. The jury returned a verdict in favor of plaintiff for $100, and he, being dissatisfied, moved for a new trial. The motion was granted, and the defendants have appealed from the order.
1. The complaint in this action, so far as it charges negligence, is substantially the same as the complaint in the Flaherty Case cited above, and the evidence touching the cause of the injury is the same in the two cases. In Flaherty v. Butte Electric Co., cited above, we held that there was such a variance between the allegations of the complaint and the proof as amounted to a failure of proof. We are now asked to say that the trial court should not have granted a new trial in this instance, because, it is argued, a new trial must result in a verdict against the plaintiff. But this argument ignores altogether the right of plaintiff to amend his complaint, and a decision by this court in conformity with appellants' view would preclude any amendment at all. Whether plaintiff can amend his complaint to meet his proof is not before us now, and cannot arise until an amendment is offered; and therefore we decline to hold on this appeal that our former decision is conclusive against the plaintiff's right to recover under any view of the case.
2. One ground of plaintiff's motion for a new trial is insufficiency of the evidence to justify the verdict. We are confronted now with the question: May a plaintiff who has recovered a verdict in his favor in a sum less than he deems himself entitled to under the evidence ask for a new trial on the ground of insufficiency of the evidence to sustain the verdict returned?
(a) In civil actions where the evidence is conflicting, the verdict must be in favor of the party who has the affirmative of an issue, and who produces in favor of such issue a preponderance of the evidence. Rev. Codes, § 8028. In other words, this section provides that a preponderance of the evidence is the least that will support a verdict in such a case; and, if in such case the evidence does not preponderate in favor of the party asserting the affirmative of the issue, then it is insufficient to sustain a verdict in his favor upon that issue, according to the provision of the Code cited above. This seems to be logical, and we are satisfied that it is correct
(b) In civil actions where the evidence is not conflicting, the verdict must be in favor of the party who has the affirmative of an issue and who has produced the uncontradicted evidence in support of it. In order to make an application of the provision of our Code relative to new trials (section 6794), let us assume that there is not any conflict whatever in the evidence as to the amount which the plaintiff in a given case is entitled to recover, if he is entitled to recover at all, and the only conflict arises upon his right to recover. If then the jury in such a case decides in favor of his right to recover, but returns a verdict for an amount less than the uncontradicted evidence shows he is entitled to receive, may he then have a new trial upon the ground that the evidence is insufficient to sustain the verdict? In Landsman v. Thompson, 9 Mont. 182, 22 P. 1148, this court answered the query in the affirmative, but gave little attention to the question of practice, apparently assuming the correctness of the position.
If our Code of Civil Procedure contained the same provision as our Penal Code, there could not be any question of this kind raised, for section 9350 provides that in a criminal case a new trial may be had when the verdict is contrary to the evidence. Is there any substantial difference between the provisions of our two Codes cited above? As early as 1862 this question came before the Supreme Court of New York. Prior to the adoption of the Code of that state, the rule had been established that a new trial might be had whenever the verdict was contrary to the evidence. This is the rule of our Criminal Code above. When the Code of New York was adopted it provided that a new trial might be had for...
To continue reading
Request your trial