Herren v. Hawks

• Decision Date: 25 October 1961
• Docket Number: No. 10235,10235
• Citation: 139 Mont. 440,365 P.2d 641,18 St.Rep. 408
• Parties: Barbara Ann HERREN, a Minor Child, by Joylyn A. Berg, her Guardian ad litem, Plaintiff and Respondent, v. Harold HAWKS and Karen Hawks, husband and wife, Defendants and Appellants.
• Court: Montana Supreme Court

Page 641

365 P.2d 641

139 Mont. 440

Barbara Ann HERREN, a Minor Child, by Joylyn A. Berg, her Guardian ad litem, Plaintiff and Respondent, v. Harold HAWKS and Karen Hawks, husband and wife, Defendants and Appellants.

No. 10235.

Supreme Court of Montana.

Submitted Sept. 20, 1961.

Decided Oct. 25, 1961.

Cooke, Moulton, Bellingham & Longo, William R. McNamer (argued orally), Billings, for appellant.

J. H. McAlear (argued orally), Red Lodge, Robert H. Wilson (argued orally), Hardin, for respondent.

CASTLES, Justice.

This is an appeal from an order of the district court of the thirteenth judicial district granting a new trial to the plaintiff, respondent here.

Plaintiff, a minor, brought suit through her mother as guardian ad litem, for injuries resulting from being bitten by a dog owned by the defendants, appellants here.

The matter was tried and the jury returned a verdict in favor of the defendants.

Plaintiff moved for a new trial under the provisions of section 93-5603, R.C.M.1947. An order granting a new trial, couched in general terms, was entered and this appeal was taken therefrom by defendants.

The evidence at the trial established that the plaintiff, a five-year-old girl, was bitten about the face by a large German shepherd dog, named Kybo, the property of defendants.

On the day in question the plaintiff's mother left her in the care of one Marilyn Hansen. Marilyn Hansen at the time lived with her husband and family in a basement apartment which they rented from the defendants. The defendants and their children occupied the rest of the dwelling. It appears that the plaintiff and several of Marilyn Hansen's and defendants' children were given cookies and were sent out to the backyard to play. The dog Kybo was also in the backyard. What happened thereafter was only witnessed by the small children and has not been brought to light. The defendant, Harold Hawks, arrived home shortly after the children had been sent outside. He found the plaintiff on the ground with several large gasheds on her face and the dog Kybo standing nearby.

At the trial there was no dispute that the dog had bitten the plaintiff and that the dog was the property of the defendants. The only facts in controversy were whether or not the defendants had notice of any vicious propensities of their pet and the amount of the damages.

An incident occurred during the course of the trial which is the basis of plaintiff's motion for a new trial. During a recess in the trial just after selection of the jury, Marilyn Hansen and plaintiff's mother and guardian ad litem, met the defendant, Karen Hawks, in the ladies' restroom in the Courthouse. The defendant had apparently lost control of her temper. She ordered the plaintiff's mother to stay off of her property. She then turned on Marilyn Hansen who had been subpoenaed as a witness for the plaintiff and accused her of 'throwing in' with the plaintiff and threatened, 'you'll be sorry', or words to that effect.

Marilyn Hansen was called as the first witness for the plaintiff within minutes after the restroom incident.

The affidavit of one of plaintiff's attorneys filed in support of the motion for a new trial states in part as follows:

'In our view, the important point in the testimony of Marilyn Hansen was the matter of the attack [by the dog Kybo] on the garbageman and more important still was the knowledge of it given to Mrs. Hawks. * * *

'On the stand Mrs. Hansen was in a worse mental state than her appearance had indicated to us. She seemed to be on the verge of tears and almost unable to speak audibly. May associate was questioning her and had trouble getting answers to his questions. Once he whispered to me that he wished he could do something to get her to talk and wondered if I had any idea what was wrong with her. On direct the following questions and answers were given as to the garbageman, in the examination of Mrs. Hansen:

'Q. Did you tell her or did you tell Mr. Hawks about the episode with the garbageman? A. I am not too sure; that's so far back. I may have mentioned it to Mrs. Hawks. * * *

'To us that testimony was a stunning blow. The notes which both of us had taken showed no indecision or lack of memory on her part. The answer came as a complete surprise and we had no reason to anticipate that she would answer in that way.'

The affidavit of Marilyn Hansen states:

'I don't know why I testified on the stand that I didn't remember telling Karen Hawks of the attempted attack by Kybo of the garbageman, when I did remember. I was so upset I just couldn't seem to think. I would have testified truthfully except for the conduct and threatening attitude of Mrs. Hawks in the ladies' restroom.'

Plaintiff closed her case without ever having brought the restroom incident to the court's attention in any legally recognized manner, that is, by motion or otherwise. Plaintiff's counsel did, however, cross examine concerning it so that the trial court was aware of the circumstances, and was able to observe the effects on the witness.

The affidavits of the plaintiff's attorneys state that they did not bring the restroom incident to the attention of the court formally because they did not know the details of what had happened. The attorneys admit that they had time to get the story from the witness Marilyn Hansen, but explain their failure to do so on the grounds that they feared for the safety of the witness because of the assertedly petentially dangerous character of the defendant Harold Hawks. They recite in their brief:

'It is true that we as attorneys might have gone to the Hawks' premises before the end of the trial and obtained the version of Marilyn Hansen's, which we did obtain, after her husband had returned home and following the rendition of the verdict, but as we viewed it she was in close proximity to an admittedly violent and unpredictable person, Mr. Hawks, who might or might not do damage to her and to her children if aggravated by our return to premises from which we had been ordered off, and the situation there was fraught with potential harm to a woman who was involved in our case only as a witness.'

The plaintiff moved for a new trial under the provisions of section 93-5603, R.C.M.1947, on the following grounds:

'1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which either party was prevented from having a fair trial; * * *

'3. Accident or surprise, which ordinary prudence could not have guarded against;

'4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.'

There are several well-established rules governing the granting of new trials. Innumerable cases in this state have laid down the general rule that the granting of a new trial is within the sound discretion of the trial court.

In Garrison v. Trowbridge, 119 Mont. 505, 506, 507, 177 P.2d 464, 465, this court said:

'In considering the propriety of the court's ruling in granting the new trial, we keep in mind that, 'The granting, or refusal to grant, a motion for a new trial lies within the sound discretion of the trial court, and its order thereon will be reversed only for manifest abuse of that discretion. * * *

"An order, general in its terms, granting a new trial, will be upheld if it can be sustained on any ground stated in the motion therefor, and such an order will not be set aside as readily as an order denying a new trial, since the latter ends the case, whereas the former merely restores the parties to the position they occupied before the trial.' Maki v. Murray Hospital, 91 Mont. 251, 260, 7 P.2d...