Haslam v. Babcock
| Decision Date | 04 December 1941 |
| Docket Number | 6787. |
| Parties | HASLAM v. BABCOCK |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The granting of a new trial for insufficiency of the evidence to justify the verdict lies in the sound judicial discretion of the trial court where there is a substantial conflict in the evidence upon the points with respect to which the sufficiency is challenged.
2. A verdict will be sustained upon appeal as against a challenge of insufficiency of the evidence where the evidence though conflicting is legally sufficient to sustain the verdict under the instructions given by the trial court.
3. Where upon a motion for a new trial or upon appeal from a judgment the sufficiency of the evidence is challenged, a specification of insufficiency of the evidence to sustain the verdict must point out wherein the evidence is insufficient.
4. In determining whether a statement contained in the trial court's instructions to the jury is erroneous, it must be considered in connection with its context and the instructions as a whole.
F T. Cuthbert, of Devils Lake, and W. G. McDonald, of Minnewaukan, for plaintiff-appellant.
Myer R. Shark, of Devils Lake, for defendant-respondent.
This action was commenced by service of the summons and complaint on the defendant on December 7, 1939. The plaintiff alleges that he is the owner of certain real estate described in the complaint and that the defendant during all of the time between September 1 and October 14, 1939, was the owner of 30 head of cattle; that at various times between these dates defendant's cattle trespassed upon the plaintiff's land and destroyed a crop of millet and hay to the plaintiff's damage in the sum of $50.
The plaintiff further alleges that on October 14, 1939, he took up defendant's cattle and kept them in his custody until October 28, 1939, and during this time incurred $50 expense in keeping and feeding these animals.
The defendant answered and admitted that his cattle trespassed upon plaintiff's land but alleged that the damage did not exceed the sum of $10. The defendant also pleaded a counterclaim wherein he claims damages in the sum of $100 against the plaintiff for not properly caring for the 30 head of cattle taken up. The defendant also claims that his herd contained 36 head of cattle and that in taking 30 head, the plaintiff so negligently, carelessly and wantonly herded and drove the cattle that 6 head of young stock were permitted to drop out of the herd and go astray that of these 6 head, 5 have completely disappeared and that they are of the value of $200 for which sum the defendant claims damages. It is alleged that the remaining animal when found was so weak as to be of no value. The testimony shows that it died during the trial. For this animal, the defendant claims further damages in the sum of $50.
The defendant also claims damages in the sum of $25 for costs incurred in proceedings in justice court for the recovery of the possession of the cattle taken up by the plaintiff.
The case was tried to a jury and resulted in this verdict: "We the jury in the above entitled action, find for the defendant for the dismissal of the action."
Three special questions were submitted to the jury. These questions and the jury's answers are as follows:
The plaintiff made a motion for a new trial which was denied. This appeal is taken from both the judgment and the order denying the new trial. The plaintiff claims in his specifications of error that the evidence is insufficient to justify the verdict. Most of the salient facts are in dispute. It is clear that the defendant's cattle trespassed upon the plaintiff's farm damaging a portion of about 35 acres of shocked millet. The plaintiff drove 30 head of defendant's cattle from this field to plaintiff's corral and kept them there from October 14 to October 28, 1939. On the latter date, they were released pursuant to proceedings had in a justice court. There is a conflict of testimony regarding the amount of damage done, the number of cattle in the herd from which the 30 were taken, the treatment received by the cattle while in plaintiff's possession, their condition when taken up and when released and a number of minor matters.
The jury found that each party suffered recoverable damages in an equal amount and, therefore, directed the dismissal of the case. The matter was submitted to the trial court upon a motion for a new trial. This the court denied and in his memorandum opinion states that substantial justice was done.
The granting of a new trial for insufficiency of the evidence to justify the verdict lies in the sound judicial discretion of the trial court when there is a substantial conflict in the evidence. Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Burdick v. Mann, 60 N.D. 710, 236 N.W. 340, 82 A.L.R. 1443.
The trial court in denying a new trial passed on the question of the sufficiency of the evidence and thus confirmed the verdict of the jury. Where the verdict is attacked in this court and the evidence though conflicting is legally sufficient to sustain the verdict under the instructions given, the verdict and judgment entered thereon will not be disturbed. Griffin v. Implement Dealers' Mut. Fire Insurance Company, 64 N.D. 146, 250 N.W. 780; Rickel v. Sherman, 34 N.D. 298, 158 N.W. 266; Branthover v. Monarch Elevator Company, 42 N.D. 330, 173 N.W. 455; Hampton v. Ross, 56 N.D. 423, 217 N.W. 845; Kraft v. Martell, 58 N.D. 58, 225 N.W. 79. We have examined the testimony with reference to the sufficiency of the evidence and find that there is evidence of a substantial character that supports the verdict.
The plaintiff specifies that the court erred in admitting testimony as to the loss of 6 head of cattle claimed by the defendant to be in the herd but not taken into the corral by the plaintiff....
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