Haser v. Pape

• Decision Date: 30 November 1951
• Docket Number: No. 7271,7271
• Citation: 78 N.D. 481,50 N.W.2d 240
• Parties: HASER v. PAPE.
• Court: North Dakota Supreme Court

Page 240

50 N.W.2d 240

78 N.D. 481

HASER v. PAPE.

No. 7271.

Supreme Court of North Dakota.

Nov. 30, 1951.

Syllabus by the Court.

1. The grounds for new trial set forth in Section 28-1902 RCND1943 are exclusive and it is error on the part of a trial court to grant a new trial unless based upon at least one of the causes specified in this section.

2. Where the evidence discloses that damages awarded by a jury are inadequate to a degree incommensurate with substantial justice, the trial court may grant a new trial on the theory that the verdict was not justified by the evidence.

3. A motion for a new trial upon the ground of insufficiency of the evidence is directed primarily to the sound judicial discretion of the trial court and the court's action upon such motion will not be disturbed upon appeal unless abuse of discretion is shown.

4. Appellate courts are more reluctant to inferfere with the action of a trial court in granting a new trial than where a new trial has been denied.

5. Joint tort-feasors are jointly and severally liable for the full amount of the detriment suffered by a party in favor of whom liability for injury arising from a common breach of duty has been established.

Sinness & Duffy, Devils Lake, for plaintiff and respondent.

Rittgers, Hjellum & Weiss, Jamestown, and Hyland & Foster, Bismarck, for defendant, Yellow Cab Co. MORRIS, Chief Justice.

The plaintiff brought this action for damages against Elmer Pape and the Yellow Cab Company, a corporation, alleging that while riding in a taxicab of the defendant corporation operated and driven by the defendant, Elmer Pape, and employee of the corporation, she was assaulted and raped by Pape and by another man. Pape defaulted for want of an answer. The defendant corporation answered denying liability upon several grounds, the chief one being that she was not a passenger of the taxicab company at the time she was assaulted and raped and the no liability devolved upon the defendant corporation for the injury that had befallen her. The trial court upheld this contention and directed a verdict of dismissal upon the ground that the contractual relationship of carrier and passenger between the plaintiff and the cab company was never created and upon the further ground that even though the plaintiff were a passenger, Pape was not acting within the scope of his employment as cab driver when he committed the assault. A verdict of $10,000 was returned against Pape. The plaintiff appealed to this court and we determined that it was prejudicial error for the trial court to direct a verdict in favor of the defendant cab company. Upon a retrial of the issues between the plaintiff and the Yellow Cab Company, pursuant to our order, the jury returned a verdict of $650 in favor of the plaintiff but allowed no interest thereon.

The plaintiff moved for a new trial upon three grounds, only two of which are involved on this appeal, namely:

'2. Insufficiency of evidence to justify the verdict, and that it is against law.

'3. That the verdict is so inadequate as to be a plain disregard by the jury of the instructions of the Court, and was rendered under the influence of prejudice.'

The trial court granted the plaintiff's motion upon the ground that the verdict was inadequate. He filed a memorandum opinion in which he reviewed the evidence and reached the conclusion that 'The verdict returned is clearly, in the Court's mind, grossly inadequate.'

The Yellow Cab Company appeals and challenges the order granting a new trial on two major points. It contends that inadequacy of a verdict is not a ground for new trial in this state. It further contends that if inadequacy of the verdict is a ground for new trial, it does not appear under the evidence in this case that the verdict is inadequate or that the evidence is insufficient to justify the verdict.

We will first consider the question of whether, in this state, a trial court has the power to vacate a verdict and grant a new trial because, under the evidence, the verdict is inadequate. Section 28-1902 RCND 1943 sets forth statutory grounds upon which a verdict may be vacated and a new trial granted. Paragraph 5 of this section provides that a new trial may be granted for 'Excessive damages appearing to have been given under the influence of passion or prejudice, * * *.'

Under paragraph 6 of this section a new trial may be granted for 'Insufficiency of the evidence to justify the verdict or other decision, or that it is against law; * * *.'

This court has held that the grounds for new trial specified in Section 28-1902 RCND 1943 are exclusive and that it is error on the part of the trial court to grant a new trial, unless based upon at least one of the causes specified in this section. Baird v. Kensal Light & Power Co., 63 N.D. 88, 246 N.W. 279; Dubs v. Northern Pacific Railway Co., 47 N.D. 210, 181 N.W. 606; Higgins v. Rued, 30 N.D. 551, 153 N.W. 389.

The appellant vigorously argues that the court set aside the verdict because he felt that it was for too small an amount, and that the inadequacy of the verdict is not a statutory ground for granting a new trial and the court therefore erred in making the order. While the causes for granting a new trial set out in Section 28-1902 RCND 1943 are exclusive, a cause relied upon need not be set out in the words of the statute. Bradley v. Krogen, 67 N.D. 108, 270 N.W. 93.

This court has never passed squarely upon the question of whether a verdict not justified by the evidence because of inadequacy may be the basis for granting a new trial. In Butler v. Aetna Insurance Company, 64 N.D. 764, 256 N.W. 214, a new trial was sought by the plaintiff on the ground that under the evidence the verdict was too small. We disposed of the case by holding that the denial of the motion for new trial was a matter resting largely in the discretion of the trial court and no abuse of discretion was shown. Thus, we treated the ground upon which the new trial was sought as being within the power of the court to grant or deny.

Our Section 28-1902 RCND 1943 setting forth causes for new trail is, in most instances, identical with the provisions of the California Code of Civil Procedure, Section 657, wherein it is provided that a new trial may be granted for

'Excessive damages appearing to have been given under the influence of passion or prejudice';

or where there is 'Insufficiency of the evidence to justify the verdict or other decision, or that it is against law; * * *.'

The question we now have before us arose in California in 1887 in the case of Bennett v. Hobro, 72 Cal. 178, 13 P. 473, 474. That case involved an action to recover $10,000 damages for personal injuries. The jury rendered a verdict in favor of the plaintiff for $200. The plaintiff moved for a new trial on the grounds of: '1. Insufficiency of the evidence to justify the verdict; 2. That said verdict is against law and against the evidence.'

In upholding an order of the trial court granting a new trial, the Supreme Court of California said: 'Reference to the evidence on this point shows that it tended to prove the injuries sustained by the plaintiff to have been very severe, resulting in her long confinement, with a reasonable apprehension that they may permanently disable her. Under such circumstances, the court may well have concluded that the sum awarded her was insignificant in proportion to the injuries received. It is within the province of the superior court to grant a new trial where it is of opinion the verdict is contrary to the weight of evidence.'

California now has a long line of cases supporting the proposition that in actions for personal injuries the trial court has power to grant a new trial upon the ground of insufficiency of the evidence to justify the verdict, where the amount awarded by the jury is inadequate or incommensurate with the extent of the injuries that the plaintiff has received. Included in this line of cases are: Taylor v. Northern Electric Railway Co., 26 Cal.App. 765, 148 P. 543; Tripcevich v. Compton, 25 Cal.App.2d 188, 77 P.2d 286; Secreto v. Carlander, 35 Cal.App.2d 361, 95 P.2d 476; Hughes v. Schwartz, 51 Cal.App.2d 362, 124 P.2d 886; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 146 P.2d 34. Other California cases dealing with inadequate damages as a ground for new trial are cited under Section 68, New Trial, in both 20 Cal.Jur. and 8 Cal.Jur., Ten Year Supp., 1948 Revision.

In South Dakota, also, we find the same statutory grounds for new trial as those under consideration. See S.D.Code 1939, Sec. 33.1605. In Sayer v. Lee, 41 S.D. 252, 170 N.W. 148, 149, it is said: 'It is appellant's contention that, under the statutes of this state, inadequacy of a verdict cannot be assigned as a ground for granting a new trial, but only an excessive verdict. Appellant's counsel is in error. Inadequacy of a verdict may be ground for a new trial, and may be considered upon an assignment of insufficiency of the evidence.'

In Idaho we again find the same statutory provisions for new trial pertaining to the grounds of excessive damages and insufficiency of the evidence. Idaho Code, 1932, Section 7-602. In Riggs v. Smith, 52 Idaho 43, 11 P.2d 358, an order of the trial court granting a new trial was upheld where the jury awarded plaintiff one dollar damages in an action for alienation of affections.

The decisions in states having statutes the same or similar to ours are indeed persuasive. Moreover, general authority supports the proposition that...