Helgeson v. Powell

• Decision Date: 12 July 1934
• Docket Number: 6048.
• Citation: 54 Idaho 667,34 P.2d 957
• Parties: HELGESON et al. v. POWELL et al.
• Court: Idaho Supreme Court

34 P.2d 957

54 Idaho 667

HELGESON et al. v. POWELL et al.

No. 6048.

Supreme Court of Idaho.

July 12, 1934

Appeal from District Court, Fremont County; C. J. Taylor, Judge.

Action by Gudrun Helgeson and Colleen Helgeson, a minor, by her guardian ad litem, Gudrun Helgeson, against Grant Powell, as policeman of the city of St. Anthony, Jesse H. Jackson, as deputy sheriff of Fremont County, the National Surety Company, and others. The case was dismissed as against the last-named defendant, and a verdict was returned for plaintiffs against the other defendants. From an order granting motions filed by all defendants except defendants named for judgment notwithstanding the verdict and from a judgment of dismissal, plaintiffs appeal. Motion by the last-named defendant to dismiss the appeal.

Appeal dismissed as to the last-named defendant, and judgment reversed, with directions.

HOLDEN, J., dissenting.

L. Tom Perry, of Logan, Utah, and Merrill & Merrill, of Pocatello for appellants.

F. L Soule, of St. Anthony, and Thos. B. Hargis, of Ashton, for respondents except Grant Powell and National Surety Co.

F. A. Miller, of St. Anthony, for Powell and National Surety Co.

WERNETTE, Justice.

This is an action to recover damages for the wrongful killing of one Harold Helgeson. The pertinent facts are substantially as follows:

During the late evening of April 25, 1932, at the home of respondent Jesse H. Jackson, deputy sheriff of Fremont county, Idaho, two girls reported to him that a man wearing white corduroy trousers and a blue coat was following them. When Jackson made inquiry as to what the man had done, one girl replied, " It is too terrible to tell." The girls pointed out the man who was then about half a block away. Jackson told the girls to go on home and that he would follow the man. Very soon thereafter Jackson got in his automobile and drove to the home of Grant Powell, a policeman of the city of St. Anthony, and explained to him what had happened, suggesting that they go and arrest the man. At the same time he described the manner in which the man was dressed, adding to the description given him by the girls that the man was wearing a light hat, and also the fact that he would recognize him. The two men then proceeded to the center of town in Jackson's car in search of the individual they were seeking. Both men were dressed as ordinary individuals, with the exception that they both wore officers' stars and carried guns. As the officers approached Bridge street they observed the now deceased, Harold Helgeson, who was dressed in a pair of white corduroy trousers and a blue coat. Upon observing Helgeson, Jackson said, " There is the man," and pointed Helgeson out to Powell. Jackson drove his car to the curb and stopped. Both men alighted from the car, and Powell called to Helgeson to stop. Helgeson started to run, and Powell pursued him, again calling to him to stop. Powell then fired two shots, the second shot striking Helgeson and killing him instantly. In the meantime Jackson had jumped in the car and started driving around the block with the apparent intention of meeting Powell and the man he was pursuing. Jackson came up to the point on the sidewalk where Helgeson had fallen about the same time that Powell reached him. Jackson then made the remark, " I see you got him," and " Well, what had we better do?" After this, with the assistance of another man who came to the scene, they took the deceased to a doctor's office.

The appellants instituted the action to recover damages against Powell and Jackson, and their respective sureties, and against J. A. Fredrickson, the sheriff, and his bondsmen, for the unlawful killing of Harold Helgeson.

At the commencement of the trial, upon motion for judgment on the pleadings, the court dismissed the cause as against the National Surety Company, surety for Grant Powell. The case, as to the other respondents, was submitted to the jury, which returned a verdict in favor of appellants and against all of respondents, with the exception of the National Surety Company, in the sum of $5,227.24. Judgment on the verdict was entered March 10, 1933. Thereafter all of the respondents, except Grant Powell, Jesse H. Jackson, and National Surety Company, moved for judgment notwithstanding verdict. The court entered an order granting the motions and rendered judgment of dismissal in favor of respondents. This appeal is from the order and judgment.

Respondent National Surety Company, surety for Powell, filed a motion to dismiss the appeal on the ground that the notice of appeal served and filed was not from the judgment on the pleadings in favor of said National Surety Company.

The only notice of appeal on file particularly recites that the appeal is " from that certain 'Order Sustaining Motion for Judgment Notwithstanding Verdict,' and the whole thereof, signed on the 27th day of May, 1933, and entered in the above entitled Court and cause on the 31st day of May, 1933, by the terms of which said Order, Motion for Judgment Notwithstanding the Verdict was granted in favor of certain of the above named defendants and judgment ordered entered accordingly in said cause." And further:

" You will please take notice that the said plaintiffs, Gudrun Helgeson, and Colleen Helgeson, a minor, by and through her Guardian Ad Litem, Gudrun Helgeson, also appeal to the Supreme Court of the State of Idaho from that certain 'Judgment', and the whole thereof, signed on the 27th day of May, 1933, and entered in the above entitled Court and Cause on the 31st day of May, 1933, whereby and by the terms thereof it was, among other things, ordered that:

The defendants, Standard Accident Insurance Company, a corporation, J. A. Fredrickson, as Sheriff of Fremont County, Idaho, and P. S. Wilcox, Gus A. Isenburg, E. D. Duke, Thomas B. Hargis, Dan Thomas, Edgar M. Chapman, Joseph Andrasen, Ted Butler, W. G. Jones and George A. Browning, Jr., have judgment against the plaintiffs in this action, and that said action be and the same is hereby dismissed as to each of the last named defendants." '

The National Surety Company did not make any motion herein for judgment notwithstanding verdict, nor did the order sustaining the motion for judgment notwithstanding verdict recite that such motion was sustained as to the National Surety Company. The judgment from which the appeal was taken, signed on the 27th day of May, 1933, was neither for nor against the National Surety Company, in fact the said surety company was not mentioned in the judgment.

In order to give this court jurisdiction, the serving and filing of a proper notice of appeal is necessary. Section 11-202, I. C. A., provides: " An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing." Said provision of the law was not complied with as to the National Surety Company, for no notice of appeal was served or filed reciting that it was from judgment on the pleadings in favor of said National Surety Company; therefore, the motion to dismiss the appeal is granted.

The appeal being dismissed as to the National Surety Company, it will only be necessary to consider the appeal from the order sustaining the motion for judgment notwithstanding verdict and the final judgment entered with reference to J. A. Fredrickson, the sheriff, and his sureties, and the Standard Accident Insurance Company, surety for Jesse H. Jackson, the deputy sheriff.

Appellants assign as error the action of the court in making and entering the order sustaining the motion for judgment notwithstanding verdict, and entering judgment of dismissal.

The grounds upon which the motions for judgment notwithstanding verdict were made in substance are as follows: (1) That the complaint does not state facts sufficient to constitute a cause of action as against the movants. (2) That the action was based upon the wrongful death statute, section 5-311, I. C. A., and recovery against the sureties could not be had under such statute. (3) That the evidence is insufficient to sustain the verdict against the respondents, in that (a) " There is no evidence legally connecting Jackson" with the killing of Helgeson; (b) that at the time of the homicide Jackson was not acting by virtue of his office, and therefore the sheriff and his bondsmen are not liable.

Section 7-224, I. C. A., providing for judgment notwithstanding verdict, reads as follows: " When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered, notwithstanding the verdict, or notwithstanding the jury has disagreed and been discharged, the court shall grant the same if the moving party was entitled to such direct verdict. Such motion may be made at any time within ten days after the rendition of the verdict or disagreement and discharge of the jury. If such motion be granted, the order granting the same shall operate to vacate any judgment theretofore entered upon the verdict, and judgment shall thereupon be entered accordingly."

Prior to the enactment of this statute a judgment non obstante veredicto was not permissible. Prairie Flour Mill Co. v Farmers' Elev. Co., 45 Idaho 229, 261 P. 673. By the express provisions of the statute a...