Fuller v. Northern Pacific Elevator Co.

• Decision Date: 07 November 1891
• Docket Number: 6731
• Citation: 50 N.W. 359,2 N.D. 220
• Court: North Dakota Supreme Court

50 N.W. 359

2 N.D. 220

GEORGE H. FULLER, Plaintiff and Respondent, v. NORTHERN PACIFIC ELEVATOR COMPANY, Defendant and Appellant

No. 6731

Supreme Court of North Dakota

November 7, 1891

APPEAL from district court, Pembina county; Hon. CHARLES F TEMPLETON, Judge.

Action by George H. Fuller against the Northern Pacific Elevator Company for services rendered. Judgment for plaintiff. Defendant appeals. Reversed.

Reversed.

A. C Davis, for appellant.

W. J Kneeshaw, for respondent.

OPINION

BARTHOLOMEW, J.

This action was brought to recover an alleged balance due on a contract of service. Plaintiff alleges that defendant employed him to work and labor for it, and take charge of one of its elevators for a term of one year, at a monthly salary of $ 50, commencing August 15, 1889, and that he worked for one year under the contract, but that defendant paid him for seven months only, and he asks judgment for the balance. The defendant admits a hiring at $ 50 per month, but alleges that it was for no definite time, and that plaintiff was discharged at the end of seven months. The contract was made by correspondence, and the trial judge instructed the jury that the contract was for no definite period, and left it to them to say how long the plaintiff worked for the defendant under the contract. There was a verdict for plaintiff for $ 250. Defendant moved for a new trial on the ground that there was no evidence to warrant the jury in finding that plaintiff worked for any period longer than seven months. Motion was denied, and defendant appeals, and assigns this denial as error. There is no question in the case except a question of fact. The learned attorney for the respondent makes no attempt in this court to defend the verdict further than to invoke for its protection the rule which prohibits courts from interfering with the verdict of a jury on matters of fact where there is a conflict in the testimony. This court has frequently adhered to that rule. Observance of the rule is absolutely necessary for the proper discharge of the separate functions of the court and jury. But an abuse of the rule is usually followed by a failure of justice. It is not the duty of any court, nor has it the right, to close its eyes to obvious facts. Courts were instituted to promote justice, and not to perpetuate error. A court may not substitute its judgment for that of the jury, but it should say whether or not the judgment of the jury has been fairly and impartially exercised, or whether or not the result shows the unmistakable presence of passion, or prejudice, or a disregard of the evidence submitted. Appellate courts have been cautious and reluctant about disturbing the verdict of a jury on questions of fact, but to prevent a miscarriage of justice they were forced to abandon the old rule as to a scintilla of evidence, and adopt the safer and more reasonable rule that now prevails almost universally, and which permits and requires a court to set aside a verdict that the court considers wrong, unless there be a substantial conflict in the evidence. Whenever an appellate court conscientiously and irresistibly reaches the conclusion that a verdict is against the truth and the undoubted weight of evidence, and could only have been reached through passion or prejudice, or a failure to exercise a sound and unbiased judgment on the part of the jury, such court should unhesitatingly reverse the ruling of the trial court refusing to vacate such verdict. The following are some of the cases that have covered this ground: Reynolds v. Lambert, 69 Ill. 495; Manufacturing Co. v. Reeves, 68 Ill. 403; Blake v. McMullen, 91 Ill. 32; Branson v. Caruthers, 49 Cal. 374; Heifrich v. Railroad Co. (Utah), 26 P. 295; Lester v. Sallack, 31 Iowa 477; McKay v. Thorington, 15 Iowa 25; Carlin v. Railroad Co. 37 Iowa 316; Reid v. Colby, 26 Neb. 469, 42 N.W. 485.

In this case the correspondence shows that plaintiff desired to be employed by defendant for a year, but defendant expressly refused to contract for any specified length of time, but did state that, if plaintiff could handle at the elevator, of which he was to have charge, a certain amount of wheat, the defendant could afford to pay him $ 600 for so doing. Plaintiff had charge of the elevator from August 15, 1889 until March 15 or 17, 1890. At that time, according to plaintiff's testimony, there was but little wheat left tributary to that station--about one car-load scattered around among the farmers. Plaintiff had handled about two-fifths of the specified amount, for the handling of which defendant had said it could afford to pay him $ 600. About the close of each month plaintiff received a check from the defendant's Minneapolis office for the amount of his month's wages. About March 17, 1890, a general agent of defendant visited plaintiff for the purpose of closing the elevator. The agent testifies that he told plaintiff that he had come to close the house; that he ordered all the grain shipped out at once, which was done; that he took away all the books and all of the money, except $ 50, which plaintiff...