Froke v. Watertown Gas Co.

• Decision Date: 02 January 1942
• Docket Number: 8322
• Citation: 68 S.D. 266,1 N.W.2d 590
• Parties: ELMER O. FROKE, Respondent, v. WATERTOWN GAS COMPANY, Appellant
• Court: South Dakota Supreme Court

68 SD 266, 1 NW2d 590 (1942)

ELMER O. FROKE, Respondent v. WATERTOWN GAS COMPANY,

Appellant

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. Vern G. Wohlheter, Judge.

#8322—Motion denied.

Davenport & Evans, Sioux Falls, SD

Andrew E. Foley, Watertown, SD

Attorney for Appellant.

Walter Stover, Watertown, SD

Attorney for Respondent.

Opinion filed January 2, 1942

ROBERTS, J.

Plaintiff brought this action against the defendant for damages alleged to have been suffered as the result of an explosion of illuminating gas in a dwelling house. Defendant made a motion for a directed verdict at the conclusion of plaintiff’s testimony and again at the conclusion of all of the testimony on the ground of insufficiency of the evidence, which motions were denied, and after verdict for plaintiff was rendered, defendant made a motion non obstante, which was denied, and judgment was rendered in favor of plaintiff. The judgment on appeal to this court was reversed. Froke v. Watertown Gas Co., 68 SD 69, 298 NW 450. This court held that the evidence did not show that any act or omission on the part of the defendant was the proximate cause of the injury, and that plaintiff was not entitled to recover. The mandate to the circuit court is in the usual form reciting pursuant to the opinion that the judgment below is reversed. The reversal of the judgment without other direction requires the lower court to retry the action. Schnepper v. Whiting, 18 SD 38, 99 NW 84; Somers v. Somers, 34 SD 594, 149 NW 558, 559; Butler Bros. v. Mason, 52 SD 349, 217 NW 510; Wenzlaff v. Tripp State Bank, 55 SD 626, 627, 227 NW 79.

Defendant brought on for hearing before this court by order to show cause a motion to modify the judgment of this court. On appeal, defendant assigned as errors the overruling of motions for directed verdict and motion for judgment notwithstanding the verdict of the jury. It is now contended that the sole question for determination of this court was whether or not the defendant was entitled to judgment and that this court having held adversely to the plaintiff should have directed the entry of final judgment. The motion for judgment notwithstanding the verdict was made under the provisions of SDC 33.1705. This section in effect provides that where a party has moved for a directed verdict the trial court, on motion for judgment notwithstanding the verdict, or on motion for new trial, may order judgment in favor of the party who was entitled to have a verdict directed, and the Supreme Court on appeal “may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his or its favor, whenever it shall appear from the testimony that the party was. entitled to have such motion granted.” SDC 33.0710 authorizes the Supreme Court to reverse, affirm or modify the judgment or order appealed from and either to direct a new trial or direct the entry by the trial court of such judgment as it deems required under the record.

It is not the function of an appellate court to determine controverted questions of fact and to direct entry of final judgment upon such determination. Questions of fact are to be tried and determined in the courts of original jurisdiction. The powers conferred upon this court to render final judgment or direct the trial court to do so must be construed in harmony with the appropriate function of an appellate court. In 3 AmJur, Appeal and Error, § 1204, it is stated: “A reviewing court possessing authority to render final judgment or direct the trial court to do so may render final judgment on the reversal of a judgment for the plaintiff on the ground of insufficiency of the evidence to support it, and will exercise this power if the evidence is manifestly insufficient, and it does not appear that any new evidence can be procured on a retrial of the cause. But if the court is of the opinion that other evidence may be produced on a new trial, or is unable to say that such evidence may not be produced, it will not render final judgment, but will remand the case for a new trial.” See also 5 CJS, Appeal and Error, § 1924, 1932; Annotation in 8 Ann. Cas. 873. The case of Minnehaha National Bank v. Torrey et al., 10 SD 548, 74 NW 890, followed this general rule in the following language: “The discretion of this court of directing the court below to enter judgment for the appellant on a reversal should only be exercised in cases when it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is...