Harrington v. H.D. Lee Mercantile Co.

Decision Date14 May 1934
Docket Number7213.
Citation33 P.2d 553,97 Mont. 40
CourtMontana Supreme Court

Rehearing Denied June 20, 1934.

Appeal from Second Judicial District Court, Silver Bow County; T. E Downey, Judge.

Action by Julia Harrington, as administratrix of the Estate of Catherine C. Reed, deceased, against the H. D. Lee Mercantile Company and another. Judgment for plaintiff, and defendants jointly appeal.

Reversed and remanded, with directions.

ANGSTMAN J., dissenting in part.

Freeman Thelen & Freeman, of Great Falls, and E. C. Meservey, of Kansas City, Mo., for appellants.

J. F. Emigh and R. Lewis Brown, both of Butte, for respondent.

CALLAWAY Chief Justice.

This is an action for damages brought by plaintiff, as administratrix, against the defendants, who, plaintiff alleges, by their negligence caused the death of her intestate.

After formal allegations alleging her appointment as administratrix of the estate of Catherine C. Reed, deceased, plaintiff in paragraph II of her complaint averred that at all times mentioned in the complaint, the defendant H. D. Lee Mercantile Company was a corporation engaged in the business of selling clothing in Montana, and that in conducting its business and in furtherance of the same the company had in its employ certain agents, persons, and salesmen employed to call upon the customers of the company and solicit them to purchase of the company the merchandise which it had for sale, and in furtherance of the business the company operated and permitted to be operated certain motor vehicles and automobiles, and employed and permitted its agents, servants, and salesmen to operate the same, and that at all times mentioned the defendant James Thompson was the agent, servant, and employee of the company, by it employed as a traveling salesman, and at the times mentioned Thompson was acting within the scope of his employment and duties as such, and was the driver and operator in charge of an automobile used by the company.

In paragraph III plaintiff described the highway and the condition thereof, including the guard rails alongside.

In paragraph IV it was alleged that upon the 2d day of September, 1929, Catherine F. Reed, "at the invitation of, and at the instance and request of the defendants, was riding in an automobile in the charge and possession of the said James Thompson, who was operating and driving" the same, which was then and there being used by the defendant company in its aforesaid business, and that Thompson, while acting as the servant, agent, and employee of the defendant, within the course and scope of his employment operated the automobile in a negligent manner, by reason of which the invitee received injuries from which she died.

In paragraph V plaintiff alleged specific acts of negligence, in substance: (1) That the automobile was driven at an excessive rate of speed; (2) that there was a failure to keep any lookout ahead; (3) carelessly, negligently, and recklessly driving the car on the left side instead of the right side of the highway; (4) failing to have the car under control.

Other allegations need not be stated.

The company and Thompson filed separate answers. Except that it admitted the death of Miss Reed on information and belief, and the existence of the highway, the company's answer was in effect a general denial, paragraphs II, IV, and V of the complaint being specifically denied.

Thompson denied each and every allegation of paragraph II; admitted the existence of the highway and of the guard rail along the left side thereof; answering paragraph IV of the complaint, he alleged that while in the company of Miss Reed and driving along the highway in a careful, prudent manner, at a reasonable rate of speed not exceeding thirty miles an hour, and on the right side of the road, he suddenly became stricken with a terrific pain in his head, causing him to lose consciousness and not to have the car under control, and that by reason of his unconscious state the automobile was veered to the left and collided with the guard rail on the left-hand side of the highway, and had it not been for his unconscious condition the collision would not have occurred. He admitted the death of Miss Reed and that she was employed at the time of her death. He denied the other allegations of the complaint. Plaintiff denied the affirmative allegations of Thompson's answer.

The action came on for trial April 10, 1933. When plaintiff rested her case in chief, each of the defendants moved for a nonsuit, which the court denied. At the close of all the evidence each of the defendants moved the court to direct a verdict against the plaintiff. These motions were overruled. The jury found a verdict in favor of the plaintiff against both defendants in the sum of $18,000, and the court entered judgment accordingly.

The defendants jointly moved the court to vacate and set aside the verdict and to grant a new trial on the grounds, among others, of the insufficiency of the evidence to justify the verdict appearing to have been given under the influence of passion or prejudice, and that the verdict is excessive. The motion was denied. The defendants caused to be settled a bill of exceptions and jointly appealed to this court from the judgment.

Eleven specifications of error, some of which are joint and others several, are presented. Counsel for respondent object to the consideration of any assignment of error which is not common and material to both defendants, on the ground that the defendants moved jointly for a new trial and appealed jointly to this court, and in this court have filed a joint brief and have argued the cause jointly. They say only an assignment of error which is common to both defendants can be held good as to either. There is authority for this position, but it does not find favor with us. We shall not take the time to discuss the consequences of the action of the trial court in overruling the motion for a new trial, except to refer to Montana cases touching the question.

Mr. Chief Justice Brantly, in Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994, observed that: "There is a conflict in the decisions upon the question whether, when a joint motion is made, the trial court should grant a new trial as to the one or more movants who appear to be entitled thereto (Spelling, New Trial and Appellate Practice, §§ 372, 395), some of the courts holding, as this author points out, that a party having a ground for a new trial loses the benefit of it by proceeding jointly with another who is not so favorably situated. We know of no authority to the effect that all the losing parties may insist upon a new trial because one has ground therefor, which does not in any way affect the merits of the judgment as to the others. Cases may arise where the rights of the losing parties are so intimately connected that what has prejudiced one during the course of the trial may also have prejudiced the other, and the court would feel constrained to grant a new trial as to all in order to remedy the wrong against the one as to whom otherwise the judgment should be allowed to stand. Such were the cases of Strand v. Griffith et al. (C. C.) 109 F. 597, and Washington Gaslight Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543. In the first of these two cases there was no evidence to sustain the verdict as against one defendant. The court granted a new trial as to all, for the reason that it could not say that evidence admitted as to transactions between the plaintiff and the one defendant did not enhance the amount of the verdict as to the others. A like situation was presented in Gaslight Co. v. Lansden.''

Other conditions may easily be brought to mind where the court might in its discretion grant the motion as to one movant and deny it as to another, which this court recognized in Anderson v. Northern Pacific Ry. Co. et al., 34 Mont. 181, 85 P. 884, 885. In that case Anderson sued the Northern Pacific Railway Company and the Helena & Livingston Smelting & Reduction Company for an injury received by him caused, as he alleged, by the negligence of the two. He recovered judgment against both. Represented by different counsel, each defendant gave a separate notice of intention to move for a new trial. Regardless of intermediate proceedings, it appeared that they joined in the motion for a new trial, which was denied. There was an attempt to appeal from the order denying the motion for new trial, which this court deemed abortive, and the pretended appeal was dismissed. The defendants gave a joint notice of appeal from the judgment, and one undertaking. It was argued by counsel for the respondent that it was necessary for appellants to join in their assignments of error and that this court could not consider alleged errors not common to both appellants. This court, speaking through Mr. Justice Holloway, said: "The authorities cited in support of this contention, however, are not directly in point. They are from states where the method of review is by writ of error and refer to cases where joint assignments of error were made. This question has not been before this court directly, but we have heretofore proceeded upon the assumption that proper practice might warrant the affirmance of a judgment as to one joint appellant and its reversal as to another. Cook v. Gallatin R. Co., 28 Mont. 340, 72 P. 678; City of Butte v. Cook, 29 Mont. 88, 74 P. 67; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994. In the absence of any authorities directly in point to the contrary, we prefer to follow the rule heretofore adopted, or which seems to be implied by the position which this court has heretofore assumed.

We however, adopt the suggestion of counsel for res...

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