Hicks v. Strain Bros.

• Decision Date: 08 July 1939
• Docket Number: 7884.
• Citation: 92 P.2d 763,108 Mont. 598
• Parties: HICKS v. STRAIN BROS.
• Court: Montana Supreme Court

92 P.2d 763

108 Mont. 598

HICKS v. STRAIN BROS.

No. 7884.

Supreme Court of Montana

July 8, 1939

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action for damages suffered as result of alleged negligence by Jessie Hicks against Strain Brothers, a corporation. From an order granting the plaintiff a new trial after a verdict for plaintiff for $1, the defendant appeals and plaintiff assigns cross-errors.

Affirmed.

Cooper Stephenson & Glover, of Great Falls, for appellant.

E. J Stromnes, of Great Falls, for respondent.

ANGSTMAN Justice.

This is an action for personal injuries sustained by plaintiff as a result of alleged negligence on the part of defendant. She asked for general damages in the sum of $15,000, and for special damages of $5,000 for loss of earnings, $500 for physician's services, $48 for hospitalization and X-rays, and $200 for services of a nurse.

The answer was a general denial and an affirmative plea of contributory negligence on the part of plaintiff. The reply denied the affirmative allegations of the answer. The evidence was undisputed that as a result of the injuries sustained by plaintiff she was obligated to pay $48 for hospital services and X-rays and a doctor bill for $175. There was sharp conflict in the evidence on the issue of defendant's negligence and plaintiff's contributory negligence. The jury returned the following verdict: "We, the jury in the above entitled action find our verdict for the plaintiff and assess plaintiff's damages in the sum of $1.00 One Dollar--00/100." Judgment was entered accordingly.

Plaintiff on May 28, 1938, and within the time allowed by law therefor, moved for a new trial upon the following grounds:

"1. Irregularity in the proceedings of the jury;

2. Insufficiency of the evidence to justify the verdict;

3. That the verdict is against law;

4. Error in law, occurring at the trial, and accepted to by the plaintiff."

The motion was argued and submitted to the court on June 7th. On June 22 the motion was granted in general terms. Thereafter, and on June 24, there was filed the following order:

"Plaintiff, Jessie Hicks, having heretofore filed her motion for new trial herein and said motion having come on duly to be heard on the 7th day of June, 1938, and the same having been argued by counsel for the respective parties on said date and by the Court taken under advisement, and the Court having duly considered the same and being fully advised in the premises.

It is ordered that the said motion be, and the same is hereby granted upon the sole ground that if the plaintiff was entitled to recover any damages in this case such damages under the evidence would be an amount in excess of One Dollar ($1.00).

This order is signed nunc pro tunc as of June 22, 1938."

Defendant has appealed from both orders granting a new trial. Plaintiff made a cross-assignment of error, questioning the validity of the nunc pro tunc order filed on June 24. Her contention on this point is that since the 15-day period within which a motion for new trial must be decided had elapsed on June 22 (sec. 9400, Rev.Codes), the order filed on June 24th was a nullity. Under the view we take of the case it is unnecessary to discuss that feature of the case.

If the order of June 24th can be resorted to for any purpose, it is simply to show what prompted the trial court to grant the motion for a new trial, and as indicating that other grounds asserted in the motion for a new trial were in effect overruled. Ebaugh v. Burns, 65 Mont. 15, 210 P. 892.

Assuming, without deciding, that we may resort to the nunc pro tunc order for these purposes, we still believe that the court was warranted in granting a new trial. Defendant takes the position that the verdict, being for nominal damages only, was in effect a verdict for defendant, and since the evidence was such that a verdict for defendant would have been proper, a new trial should not be granted on plaintiff's motion. There are cases supporting this contention. Rubinson v. Des Moines City R. Co., 191 Iowa 692, 182 N.W. 865; Hubbard v. Incorporated Town of Mason City, 64 Iowa 245, 20 N.W. 172; Talty v. City of Atlantic, 92 Iowa 135, 60 N.W. 516; Snyder v. Portland Ry. Light & Power Co., 107 Or. 673, 215 P. 887; Fulmele v. Forrest, 4 Boyce, 27 Del., 155, 86 A. 733; Haffner v. Cross, 116 W.Va. 562, 182 S.E. 573; Shipley v. Virginia R. Co., 87 W.Va. 139, 104 S.E. 297. Applying the same rule where the award was $5,000; Vanek v. Chicago, etc., R. Co., D.C., 252 F. 871; Sullivan v. Wilson, Mo. App., 283 S.W. 743. On the other hand, there are cases taking the contrary view. Thus, in Bass Furniture & Carpet Co. v. Electric Supply Co., 101 Okl. 293, 225 P. 519, there was a verdict for plaintiff for one dollar. The action was for damages to property caused by alleged negligence of defendant. Defendant denied negligence and pleaded contributory negligence on the part of plaintiff. The uncontradicted evidence showed that the value of the real property destroyed was $3,400 and of the furniture $24,000. The court said:

"The evidence is convincing and clear that a substantial loss amounting to many thousand dollars was sustained by the plaintiff by reason of the fire, and if the plaintiff was entitled to recover at all it was entitled to recover substantial damages, and not nominal damages.

The defendant contends that the verdict for $1 should be treated as a finding for the defendant on the question of liability, and that such finding is supported by the evidence, as there was no sufficient evidence to justify the jury in finding that the fire was caused by the negligence of the defendant, and that the negligence of the plaintiff contributed thereto. While some authority can be found to support this contention, we believe the better rule has been announced in Miller v. Miller, 81 Kan. 397, 105 P. 544, as follows: 'In an action to recover the value of personal services, it was not disputed that services of substantial value were rendered, but it was claimed by the defendant that they were to be gratuitous. On this issue the evidence was conflicting, and the jury returned a verdict for the plaintiff, assessing his damages at $1. Held, that the verdict is inconsistent, and that it should have been set aside on the plaintiff's motion, based upon the ground that the recovery was too small."'

Continuing, the court said: "In the instant case the verdict of the jury was a finding against the plaintiff [meaning defendant] on the question of liability for the loss sustained by the plaintiff, and there was sufficient evidence to support that finding. The amount of the verdict, however, cannot be justified by the evidence, and the verdict should have been set aside and a new trial granted."

In San Giuliano v. Black & White Cab Co., 145 A. 872, 7 N.J.Misc. 448, plaintiff recovered a verdict for $3. The court in granting a new trial said: "By its verdict the jury declared that the driver of the defendant's cab was guilty of negligence causing the accident and that the boy did not contribute thereto by his own negligence. This is a necessary conclusion to be reached upon the finding that the plaintiff was entitled to recover. If this finding is justified by the evidence, the award of $3 as compensation for the boy's injuries is entirely without justification in view of the medical testimony...