Jacobs v. Bever

• Citation: 79 N.D. 168,55 N.W.2d 512
• Decision Date: 17 October 1952
• Docket Number: No. 7235,7235
• Parties: JACOBS v. BEVER.
• Court: United States State Supreme Court of North Dakota

Page 512

55 N.W.2d 512

79 N.D. 168

JACOBS v. BEVER.

No. 7235.

Supreme Court of North Dakota.

Oct. 17, 1952.

Syllabus by the Court.

1. Where a case is tried to a jury, the credibility of the witnesses and the weight of their testimony are to be determined by the jury, and when the evidence is in conflict and reasonable men might draw different conclusions therefrom, neither the verdict of the jury upon such evidence nor the order of the trial court denying a motion for judgment notwithstanding the verdict or for a new trial will be disturbed on appeal when the ground of attack is that the evidence is insufficient to sustain the verdict.

2. 'The statutory provision that 'An employer, in all cases, shall indemnify his employee for losses caused by the former's want of ordinary care', Sec. 34-0203, RCND 1943, is applicable in the case of a gratuitous employee as well as an employee for reward, and in determining the employer's liability the same rule applies as in the case of master and servant.' Olson v. Kem Temple, 77 N.D. 365, 43 N.W.2d 385.

3. Where a motion to dismiss is made on the ground of the insufficiency of the evidence, the insufficiency must be particularly pointed out.

4. A motion for judgment notwithstanding the verdict or for a new trial on the ground of insufficiency of the evidence to sustain the verdict must specify the particulars in which it is insufficient.

E. J. McIlraith, Minot, for defendant and appellant.

Halvor L. Halvorson, Jr., and Harold Halstead, Minot, for plaintiff and respondent.

NUESSLE, Commissioner.

This action was brought to recover damages for personal injuries.

Stripped to its essentials, the complaint alleges that the plaintiff was employed by the defendant to do some trucking; that while so employed he was directed by the defendant to repair defendant's automobile; that when he lay prone under the automobile pursuant to this direction 'the defendant carelessly, negligently and unlawfully put said car in motion by disturbing the car in trying the ignition switch or pushing it or rocking it, to such an extent in his attempt to get said motor started, that the car lunged forward and the rear wheels came to rest before said car could be stopped,' on the person of the plaintiff, whereby he suffered severe permanent bodily injuries; that because of said injuries plaintiff was subjected to great pain and suffering, was compelled to incur large medical and hospital bills, and was unable to work at his occupation of farming, all to his damage in the sum of $3,740, for which he demands judgment.

To this complaint the defendant answered, denying 'each and every allegation, matter, and thing therein contained excepting to admit that the Plaintiff did receive some injuries on or about the date set forth in the Complaint.' Defendant further alleged 'That the Plaintiff at the time referred to herein, was not in the employ of the Defendant, and when he was doing the work referred to in the Complaint, he was doing it voluntarily and without compensation and said injuries were caused by his own contributory negligence and not by anything which this Defendant did or did not do and which could have avoided said accident.'

On the issues thus joined, the case was tried to a jury.

At the close of the plaintiff's case the defendant moved the court to dismiss the action on the grounds 'that the plaintiff has wholly failed to prove the material allegations of the Complaint, in that, first, there is no evidence of a relationship of employer and employee, no terms of employment, and no conditions of employment, and no evidence that the plaintiff ever did or ever was employed by the defendant to do any work for him.

'Two: That even though there were evidence of employment * * * there is no evidence that the plaintiff at the time of the accident or immediately prior thereto, was in the employ of the defendant or was directed by him to fix and repair the car * * * and that the defendant exercised no control over the plaintiff as an employer.

'Three: That there is no evidence of negligence upon the part of this defendant, or carelessness, and that the defendant is in no way responsible for what happened since all of the evidence shows that the plaintiff asked to and undertook the job of fixing the car, and assumed whatever responsibility and risk that was incurred therein.' This motion was denied.

The defendant the moved the court to direct the jury to return a verdict of dismissal against the plaintiff and in favor of the defendant upon all the grounds set forth in the motion for dismissal. The plaintiff objected to and resisted this motion and it also was denied.

Thereupon, defendant, offering no evidence, rested his case and renewed the motions to dismiss and for a directed verdict, which motions were denied. The court then submitted the case to the jury who returned a verdict for the plaintiff in the sum of $1,100. Judgment was ordered and entered thereon.

Thereafter the defendant renewed his motion to dismiss the action and also moved for judgment notwithstanding the verdict or for a new trial. These motions were, in effect, predicted on the same grounds as set out in defendant's motions to dismiss and for a directed verdict made after both sides had rested. The motions were denied; whereupon defendant perfected the instant appeal.

As grounds for his appeal the defendant specified that the evidence was insufficient to justify the verdict in that 'There is no evidence of a relationship of employee and employer, no terms of employment, no conditions of employment and no evidence that the Plaintiff ever did or ever was employed by the Defendant with his truck to do any work; that there is no evidence that the Plaintiff was directed by the Defendant to fix and repair the car but rather the evidence shows that the Plaintiff himself suggested, because he was impatient, that he should fix the car and thereby assumed his own risk; that there is no evidence of negligence or carelessness upon the part of this Defendant and that the Defendant is not legally responsible for what happened since the Plaintiff assumed the risk and assumed whatever responsibility there was in connection therewith.'

And 'That the Court erred in denying the motion of Defendant for judgment notwithstanding the verdict, or in the alternative, for a new trial' and further 'erred in denying the motion of Defendant for a dismissal of this action.'

The record is brief. It is undisputed that plaintiff received the injuries of which he complains in his complaint and suffered damages on account thereof. The defendant concedes this and does not challenge the finding of the jury as to the amount of the damages. The only real conflict in the record is as to what occurred at the time the injuries were received.

Plaintiff's testimony is that the defendant engaged the plaintiff to do some trucking for him. Accordingly, he went to the defendant's home. Defendant owned a 1934 Ford car which was broken down and stalled on the roadside. Plaintiff went with the defendant to the car. Defendant said the battery cable was broken. He got under the car and tried to adjust the cable on the starter to the battery post. Plaintiff testified: 'So I sat on the ground, waiting for him to get it...