Haugen v. Mid-State Aviation, Inc.

• Decision Date: 30 August 1966
• Docket Number: No. 8319,MID-STATE,8319
• Citation: 144 N.W.2d 692
• Parties: Anton HAUGEN, Plaintiff and Respondent, v.AVIATION, INC., a North Dakota Corporation, Defendant, Third-Party Plaintiff, and Appellant, v. Kenneth HAUGEN, Third-Party Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 692

144 N.W.2d 692

Anton HAUGEN, Plaintiff and Respondent, v. MID-STATE AVIATION, INC., a North Dakota Corporation, Defendant, Third-Party Plaintiff, and Appellant, v. Kenneth HAUGEN, Third-Party Defendant and Respondent.

No. 8319.

Supreme Court of North Dakota.

Aug. 30, 1966.

Syllabus by the Court

1. Where an appeal is taken from the judgment only, the sufficiency of the evidence to support the verdict cannot be considered by the court on appeal.

2. The record is examined, and Held that the trial court committed no reversible error in the admission and exclusion of evidence.

3. When a witness on cross-examination has testified to a certain fact, it is not error on the part of the trial court to refuse to permit a repetition of such testimony.

4. While a trial court has the duty to fully and fairly instruct the jury on the law governing issues involved in the case, the court need not give a requested instruction when the matter has already been fully and fairly covered by a charge given, even though the requested instruction correctly states the law involved in the case.

5. Rule 49(b) of the North Dakota Rules of Civil Procedure authorizes the trial court, in its discretion, to submit to the jury written interrogatories on one or more issues upon which the verdict of the jury will necessarily depend. The purpose of the rule is to cause the jury to give close attention to important issues by requiring answers to interrogatories on such issues. The answers the jury gives to the interrogatories will serve as a check on the correctness of the general verdict.

6. Under the circumstances of this case, it was within the trial court's discretion to submit written interrogatories on one or more of the issues of fact, the decision of which was necessary to the general verdict submitted. It was also within the court's discretion to accept or reject the general verdict when the jury failed to answer such interrogatories, and such acceptance of the general verdict was not an abuse of discretion.

Vogel, Ulmer & Bair, Mandan, for plaintiff and respondent.

Higgins & Christensen, Bismarck, for defendant, third-party plaintiff, and appellant.

Palda, Palda, Peterson & Anderson, Minot, for third-party defendant and respondent.

STRUTZ, Judge.

The plaintiff, a retired farmer seventy-seven years of age, was seriously injured while riding in the front seat of a car driven by his son, third-party defendant Kenneth Haugen. As the automobile in which the plaintiff was riding crested a knoll in the highway, the defendant's airplane was standing on the highway some distance below the knoll. The plaintiff's own evidence discloses that the distance from the top of the knoll to the point where the defendant's plane obstructed the road was 285 feet. The evidence is also undisputed that the plane could have been seen by the driver of a vehicle coming over the knoll at a point forty feet before the car reached the crest of the hill. There also is evidence that, as the car approached the knoll, the driver momentarily glanced toward the back seat to talk with a brother with whom he was engaged in farming operations. At the time the car approached the crest of the knoll, it was being driven at an estimated speed of from forty-five to fifty-five miles an hour.

On seeing the airplane blocking the highway, the driver of the car took to the ditch to avoid colliding with the plane. The car struck an approach of an intersecting highway, throwing the plaintiff from the automobile and causing the personal injuries complained of.

The court, in submitting forms of general verdicts to the jury, submitted two written interrogatories to be answered, requesting the jury to answer the interrogatories and to return general verdicts. The jury returned a general verdict for the plaintiff in the main action and for the third-party defendant on his counterclaim in the third-party proceedings, but failed to answer the interrogatories which had been submitted to it. When the jury returned these verdicts, counsel for the defendant and third-party plaintiff was not present in court. The court noted the failure of the jury to answer the interrogatories, but was told by the foreman that the answers were 'on the back.' After the jury had been discharged and had dispersed, it was discovered that no answers to the interrogatories had, in fact, been given.

The verdicts returned by the jury were for the plaintiff and for the third-party defendant on his counterclaim.

Whether the evidence was sufficient in the case to justify either verdict is not before us, for the appeal is taken from the judgments only. No motion for directed verdict in either case was made by the defendant and third-party plaintiff, and no motions for new trial based on specifications of error were made in the lower court.

This court has held that any person who wrongfully renders a public highway dangerous for travel by placing obstructions thereon must respond in damages to anyone injured in consequence of such obstruction. Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 30 L.R.A.,N.S. 1111.

Whether the evidence in this case is sufficient to support the verdicts of the jury against the defendant and third-party plaintiff for obstructing the highway by placing an airplane on it cannot, therefore, be considered on this appeal. The appeal is from the judgments only, and, where an appeal is from the judgment only, the sufficiency of the evidence to support the verdict returned by the jury cannot be considered by this court on appeal. Marsden v. O'Callaghan (N.D.), 77 N.W.2d 522.

Thus issues which might have been raised on an appeal from an order denying a motion for judgment notwithstanding the verdict, or from an order denying a new trial, are not reviewable on an appeal from a judgment only. Jager v. Grommesh (N.D.), 77 N.W.2d 873.

Our consideration, therefore, is limited to whether the court committed reversible error in the trial of the lawsuit. In support of its appeal, the defendant raises the following issues:

1. That the court erred in refusing to admit certain evidence;

2. That the court erred in refusing to give defendant's requested instruction No. 1; and

3. That the judgments entered in the case are a nullity because the jury failed to answer any of the special interrogatories submitted to it by the court with the general verdicts upon which the judgments were rendered.

We will consider these issues in the order in which they are set out.

The first claim of legal error is based on the refusal of the trial court to admit certain evidence. The first such instance occurred when the defendant was cross-examining the officer who had investigated the accident. The officer was asked:

'Q. Do you recall what is the approximate maximum or minimum stopping distance of a car on a road such a number 5, as you found it that morning, traveling at a speed of fifty-five (55) miles per hour?'

To this question, counsel for the third-party defendant stated:

'Just a minute. Would you answer the question yes or no, please. Your (sic) asking for opinion.'

The court then interjected the following:

'Not that but there has been no testimony the man was going fifty-five (55) miles an hour. Sustained, assuming a fact not in evidence.'

We fail to see how the defendant can claim error when, immediately following the court's statement, counsel for the defendant stated:

'All right, your honor. I was thinking of the * * * I guess my recollection was on counsel's statement, it hasn't been covered yet.'

Thus counsel for the defendant clearly admitted that his question assumed a fact not in evidence.

Another instance of legal error claimed by the defendant in the exclusion of evidence is in the direct examination of one of the defendant's employees. The defendant was attempting to show the necessity of landing on the road near the fields which were being sprayed, for the purpose of refueling and for taking on more spray, instead of flying back to the airport for such purposes. In this connection, counsel for the defendant was asking about the kinds of sprays, the types of crops, the size of farms, etc. The trial court finally stated that there was no issue on the matter of spraying. When counsel stated that the purpose was to show why the road was used for landing, the court stated:

'Well, then go to the point. Why talk about the mixture and the price of that process and the size of the fields. If you are going to show why they have to land in re-fueling with different kinds, show that.'

Again, after a considerable colloquy between the court and counsel for the defendant, the court stated:

'I can't see why we should try (a) matter that nobody questions and not in the pleadings and not in issue and not denied; and we waste fifteen minutes about (a) matter that is wholly foreign. The question is, who is liable and what happened with respect to where these 'planes were shown on that highway. Why were they there? Limit the examination to that phase of it.'

Counsel then continued to ask questions on the types of chemicals that were being used and how these chemicals were carried from field to field, and the court finally interjected:

'Does the price change in mixture and contract from customer effect (sic) the matter of parking 'planes on the highway?'

Counsel for the defendant objected to the fact that the trial judge, on several occasions during the trial, interrupted the questioning of witnesses by the defendant, even though no objection had been made by opposing counsel. A trial judge should, of course, maintain at all times an impartial attitude in the trial of the case over which he presides. He should not, by word, by question, by his attitude, or by any conduct on his part, do anything which may influence the jury in its consideration of the case. He should make no remarks which would show bias on his part in favor of any party to the lawsuit. Other than that, however, the trial...