Holt v. Otis Elevator Co.

• Decision Date: 10 October 1916
• Citation: 90 S.E. 333,78 W.Va. 785
• Parties: HOLT v. OTIS ELEVATOR CO.
• Court: West Virginia Supreme Court

90 S.E. 333

78 W.Va. 785

HOLT v. OTIS ELEVATOR CO.

Supreme Court of Appeals of West Virginia.

October 10, 1916

Syllabus by the Court.

A judgment non obstante veredicto must be based upon the merits of the case as disclosed by the pleadings, not in any sense upon the evidence adduced upon a material issue properly joined. It is not tantamount to a motion to set aside a verdict for lack of evidence to sustain it, nor can it be used for such purpose, or to obtain a judgment of dismissal for lack of evidence.

By his failure to move for a new trial, in the trial court, a party against whom a verdict has been rendered waives all errors committed by the court in the progress of the trial including the erroneous overruling of motions having for their purpose relief from the verdict, on the theory of a total want of evidence to sustain it.

Though the trial court may deem the evidence insufficient to sustain a verdict for the plaintiff, it cannot, after having set aside the verdict at the instance of the plaintiff urging such action on other and untenable grounds, properly render a judgment of dismissal of the action, on a motion by the defendant for judgment non obstante veredicto, by way of correction of its error in refusing to direct a verdict for the defendant, for lack of evidence.

Any errors that may have been committed against a plaintiff, in instructions pertaining to his right to recover only, and not in any way touching the measure of damages, are rendered harmless by a verdict in his favor; for they manifestly did not influence the jury to his prejudice.

In a case of indeterminate damages for which the law gives no specific rule of compensation, the decision of the jury upon the amount of damages is generally conclusive, unless the amount is so large or small as to induce belief that they were influenced by passion, partiality, corruption, or prejudice, or misled by some mistaken view of the case.

If the defendant in error cross-assign error in the action of the trial court in setting aside a verdict, on the motion of the plaintiff in error, upon insufficient grounds or upon its own motion, for lack of evidence, in a case in which the defendant in error had moved for a new trial and then withdrawn its motion and moved for judgment non obstante veredicto, on the ground of lack of evidence to sustain the verdict, the appellate court, on reversing the judgment of dismissal improperly rendered on said last motion, will reinstate the verdict and enter judgment thereon.

Error to Circuit Court, Cabell County.

Action by Homer E. Holt, administrator, etc., against the Otis Elevator Company. Judgment for defendant, and plaintiff brings error. Reversed, verdict for plaintiff reinstated, and judgment rendered.[Copyrighted Material Omitted]

W. A Hosack, of Mt. Vernon, Ohio, and Holt, Duncan & Holt and W. K. Cowden, all of Huntington, for plaintiff in error.

Williams, Scott & Lovett, of Huntington, for defendant in error.

POFFENBARGER J.

A judgment of dismissal, entered in an action of trespass on the case, under somewhat anomalous conditions, has raised, upon this writ of error, some rather novel contentions.

Contenting itself with cross-examination of the plaintiff's witnesses, the defendant offered no testimony on its own behalf. The plaintiff having introduced his evidence and rested his case, the defendant requested the court to give a peremptory instruction to find for it, and the plaintiff sought four instructions drafted upon the theory of sufficiency of the evidence to sustain a verdict. The court declined to give the defendant's peremptory instruction, gave the instructions asked for by the plaintiff, and read to the jury a written charge. After having deliberated for some time, the jury came into court and reported their inability to agree upon a verdict. Thereupon the court again read to them the instructions previously given, and delivered to them an oral charge or address, concerning the legal method of deliberation and arrival at a conclusion. Thereafter a verdict was returned, in which the plaintiff's damages were assessed at $750. The defendant moved the court to set it aside, but withdrew its motion before the court acted upon it, and then moved for judgment for the defendant notwithstanding the verdict. Thereupon the plaintiff moved the court to set aside the verdict and grant a new trial. The court set aside the verdict, and then, being of the opinion that its refusal to give the peremptory instruction asked for was erroneous, sustained the motion for judgment non obstante veredicto and dismissed the plaintiff's action.

Complaining only of the refusal of a new trial and the rendition of the final judgment, the plaintiff endeavors to sustain the action of the court in setting aside the verdict, on the ground of errors in the oral and written charges delivered to the jury by the court. On the other hand, the defendant endeavors to sustain the denial of a new trial and rendition of the judgment, and cross-assigns error in the setting aside of the verdict, in the event of failure in its effort to sustain the final judgment of dismissal.

The order denying right of recovery, in the manner above indicated, stands upon its recited assumption of insufficiency of the evidence to sustain the verdict. The motion upon which the order is predicated is not, however applicable to the relief sought. It pertains to the rights of the parties as disclosed by the pleadings only, and does not extend to the evidence adduced upon the issue made. At common law, judgments non obstante veredicto could have been granted, originally, in the plaintiff's favor only, and only in cases in which the plea confessed the cause of action and set up insufficient matter in avoidance thereof. It was a form of judgment by confession. Later, the rule was extended so as to permit such judgment to be applied for and entered in favor of the defendant when the plaintiff's pleadings were insufficient to sustain a judgment in his favor. They could not be taken in any case in which the pleadings stated a good cause of action and defense and made a material issue of fact for the jury. Richmire v. Elevator Co., 11 N.D. 453, 455, 92 N.W. 819; 4 Minor's Institute, 946, 947; Andrews' Stephen's Plead. p. 186, § 95; 2 Ency. Pld. & Prac. 912. By statute, this remedy has been extended in Minnesota and North Dakota and perhaps some other states to the case in which an issue has been properly joined and plaintiff's case is wholly unsupported by evidence and incapable of being made better. Cruikshank v. St. Paul F. & M. Insurance Co., 75 Minn. 266, 77 N.W. 958; Marquardt v. Hubner, 77 Minn. 442, 80 N.W. 617; Merritt v. Great Northern Ry. Co., 81 Minn. 486, 84 N.W. 321; Richmire v. Elevator Co., 11 N.D. 453, 92 N.W. 819; Lumber Co. v. Fargo, 12 N.D. 360, ...