Jones v. Chicago, Burlington & Q. R. Co., 789

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, CHIEF JUSTICE.
Citation147 P. 508,23 Wyo. 148
PartiesJONES v. CHICAGO, BURLINGTON & Q. R. CO
Decision Date12 April 1915
Docket Number789

147 P. 508

23 Wyo. 148

JONES
v.
CHICAGO, BURLINGTON & Q. R. CO

No. 789

Supreme Court of Wyoming

April 12, 1915


ERROR to the District Court of Sheridan County; HON. CARROLL H. PARMELEE, Judge.

The plaintiff in error brought an action below for damages for personal injuries. The cause was tried to a jury, which, failing to agree, was discharged without rendering a verdict. A motion theretofore made to direct a verdict for defendant, having been overruled, was then reconsidered by the court and sustained and a judgment was entered by the court dismissing the cause. The chief question presented for review is, as to the authority of the court to render judgment after discharging the jury and in the absence of a verdict.

Judgment reversed and cause remanded.

E. T. Clark and Burgess & Kutcher, for motion to dismiss.

There is no bill of exceptions and no errors are presented for review. (Murrin v. Ullman, 1 Wyo. 36; Geer v. Murrin, 1 Wyo. 37; White v. Sisson, Wallace & Co., 1 Wyo. 395; Cantlin & Co. v. Miller & Chapman, 13 Wyo. 109; Comp. Stats. 1910, Sec. 4598; Supreme Court Rule No. 13.) A motion for a new trial will not be reviewed unless embraced in a bill of exceptions. (Perkins v. McDowell, 3 Wyo. 328; Siehl v. Bath, 5 Wyo. 409; Rubel v. Willey, 5 Wyo. 427; Boulter v. State, 6 Wyo. 66; Groves v. Groves, 9 Wyo. 173; Comms. v. Shaffner, 10 Wyo. 181; Freeburgh v. Lamoureux, 12 Wyo. 41, 13 Wyo. 454; Wallace v. Skinner, 15 Wyo. 233; Burns v. C. B. & Q. R. R. Co., 14 Wyo. 498.) Exceptions to a refusal to grant an application for a change of judge must be preserved in a bill of exceptions. (Syndicate Improvement Co. v. Bradley, 6 Wyo. 171.) The same rule applies as to a change of venue. (Littleton v. Burgess, 16 Wyo. 58.) Methods of trial are prescribed by statute. (Secs. 4453 and 4514, Comp. Stats. 1910.) Alleged errors of the trial court in trying a case to a jury after a jury has been waived, or in refusing a demand for a jury trial, must be presented in a motion for a new trial and preserved in a bill of exceptions, in order to have the error reviewed. (Hogan v. Peterson, 8 Wyo. 549; Syndicate Improvement Company v. Bradley, 6 Wyo. 178.) A jury fee must be deposited. (McGeagh v. Wordberg, 55 N.W. 117 (Minn.)

Cadle & Byrd, in opposition to motion to dismiss.

The error complained of is apparent on the face of the record and no bill of exceptions is necessary. (Nichols v. Board of Commissioners, 76 P. 681.) There is a distinction between a change of venue and a change of judge. (3 Wyo. 328; Comp. Stat. 1910, Sec. 5144.)

Cadle & Byrd, for plaintiff in error.

The court erred in refusing plaintiff's application duly made for a change of judge. (Comp. Stats. 1910, Secs. 5142 and 5152; Perkins v. McDowell, 3 Wyo. 203.) The application and affidavit may be made by counsel. (Comp. Stats. 1910, Sec. 4422.) The point was not waived by going to trial after a refusal of the application. (Jones v. Chicago N. W. Railway Co., 72 Ia. 36.) A change of judge could have been granted upon plaintiff's second application, after the jury had been discharged. (8 Am. & Eng. Ann. Cases, 759; Marshall & McKee v. Kinney, 1 Ia. 580; Berner v. Frazier, 8 Ia. 77, 126 Ia. 581.) A jury may be discharged before verdict in certain cases (Sec. 4504, Comp. Stats. 1910), and the case may be retried (Sec. 4505, Comp. Stats. 1910), but there is no authority for the entry of a judgment, unless the case be retried. Issues must be tried according to statute. (Comp. Stats. 1910, Sec. 4453). A jury trial is a constitutional right. (Art. 7, Constitution U. S.) Benefits received through a scheme of relief conducted by an employer, will not defeat the right to recover for injuries (King v. Atlantic Coast Line R. R. Co., 72 S.E. 812) unless the settlement and membership be voluntary. (Wyo. Constitution, Sec. 1, Art. 19; Sec. 3430, Comp. Stats. 1910.) The contract of membership governs the legal consequences of the acceptance of benefits after injury. (C. B. & Q. R. R. Co. v. McQuire, 55 S.Ct. 566.) The Safety Appliance Act cannot be satisfied by a showing of diligence. (U. S. S.Ct. Rep., Vol. 220, p. 586; C. B. & Q. R. R. Co. v. U. S. 55, Law. Ed. 587; 78 S.W. 220, sustained; same, 98 S.W. 958; 210 U.S. 281; 52 Law Ed. 1061; 28 S.Ct. 616.) A failure to provide proper equipment renders the company liable for injuries caused by such failure. (Mobile &c. R. R. Co. v. Branburg, 141 Ala. 258, 37 So. 395; Winkler v. Philadelphia &c. R. R. Co., 4 Penn. (Del.) 80, 53 A. 90, 4 Penn. (Del.) 387, 56 A. 112; Johnson v. Southern Pacific R. R. Co., 117 F. 462, 54 C. C. A. 508, reversing 116 F. 867 (196 U.S., p. 1), 25 U. S. S.Ct. 158; Chicago &c. R. R. Co. v. Voelker, 129 F. 522, 65 C. C. A. 226; Kansas City &c. R. R. Co. v. Flippo, 138 Ala. 498, 35 So. 457; Chicago &c. R. R. Co. v. Walters, 120 Ill.App. 152; See cases cited: 53 A. 90; 4 Penn. (Del.) 387; 56 A. 112; Am. & Eng. Annotated Cases, Vol. 10, p. 701, and cases there cited.)

E. T. Clark and Burgess & Kutcher, for defendant in error.

Alleged error in sustaining motion for judgment on the evidence cannot be reviewed without a bill of exceptions. (Syndicate Imp. Co. v. Bradley, 6 Wyo. 178; Hogan v. Peterson, 8 Wyo. 549; Burns v. C. B. & Q. R. R. Co., 14 Wyo. 498; Freeburgh v. Lamoureaux, 12 Wyo. 233; Rule 13 of Supreme Court.) Where the evidence is undisputed and a new trial can serve no useful purpose, the appellate court will direct the entry of such judgment, as ought to have been entered. (Bryant v. Cadle, Adm., 18 Wyo. 97.) There is no issue of fact to retry to a jury. A new trial is a re-examination of an issue of fact. (Comp. Stats. 1910, Sec. 4601.) Issues of law must be tried by the court. (Comp. Stat. 1910, Sec. 4455.) Issues arise on the pleadings, where a conclusion of law has been maintained by one party and controverted by the other. (Comp. Stats. 1910, Sec. 4451.) A trial court's decision on the sufficiency of the evidence cannot be questioned, unless the evidence is brought up for review. (3 Cyc. , 307.) A judgment non obstante veredicto may be granted after verdict upon a failure of proof. (Glennon v. Erie R. Co., 86 N.Y.S. 875, 73 N.E. 1124; Hay v. Baraboo, 105 N.W. 654, 3 L. R. A. N. S. 84 (Wis.); Casety v. Jamison, 77 P. 800 (Wash.); Davis v. Rose-Marshall Coal Co., 134 P. 180 (Wash.); Brown v. Corey, 59 P. 1097; Duluth v. ---, 44 N.W. 2; Calboux v. Muller, 78 N.W. 1082; Mauch v. Muller, 96 N.W. 800, 73 N.E. 1124.) The case at bar may be distinguished from Pike & Richardson v. City of Sheridan, decided April 14th, 1914, as in that case the question was presented by bill of exceptions and the evidence was taken up for review. New pleadings were filed and new issues were made, after the jury had disagreed. The case of Bryant v. Cadle, 18 Wyo. 97, is in point.

Cadle & Byrd, in reply.

The case of Pike & Richardson v. City of Sheridan is clearly in point. There was no trial. The case of Bryant v. Cadle, 18 Wyo. 97, was tried to the court and is clearly distinguishable from the case at bar. The error complained of is apparent on the face of the record and no bill of exceptions is necessary. (Comp. Stat. 1910, Sec. 4597.) It is an error occurring during the trial. (Burns v. Railroad Co., 14 Wyo. 498.) Supreme Court Rule No. 13 applies only where there has been a trial. (Anderson v. Inglehart, 18 Wyo. 196; First National Bank v. Swan, 3 Wyo. 356.) The rule announced in Perkins v. McDowell, 3 Wyo. 328, requiring exceptions taken to a ruling made on a motion for a change of judge to be incorporated in the bill of exceptions for purposes of review, does not seem to be supported by the great weight of authority. Upon the filing of the affidavit the authority of the judge ceases. He has no further judicial authority except to call in another judge. (40 Cyc. 177; Woods Gold Mining Co. v. Royston, 46 Colo. 191; 103 P. 291; Smith v. People, 2 Colo.App. 99, 29 P. 924; State v. Meeker County, 79 N.W. 960, 116 N.W. 3.) The settlement, allowance and signing of a bill of exceptions is a judicial act. (Schlessinger v. Cook, 8 Wyo. 489.) An affidavit for a change of judge is a part of the record. (Winet v. Berryhill, 55 Iowa 415; McGovern v. Lumber Co., 61 Iowa 265.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

[23 Wyo. 154] POTTER, CHIEF JUSTICE.

This cause is here on error. The action is one for damages for personal injuries, and was not triable without a jury unless a jury trial was waived, with the assent of the court, in the manner provided by statute. The record shows that issues of fact were presented by the pleadings, consisting of the petition, answer and reply; that on June 24, 1913, a jury was impaneled and sworn to try the cause; that the trial was proceeded with by the introduction of evidence, and on June 25, 1913, at the conclusion of the evidence, and after being instructed [147 P. 509] by the court and hearing the arguments of counsel, the jury retired to deliberate upon their verdict, and on the following day returned into court and reported that they were unable to agree upon a verdict, and were thereupon discharged from further duties in the cause. It does not appear, nor is it contended or suggested, that there was any further trial of the cause, but a judgment was entered therein reading as follows:

"This day came on to be heard the motion of the defendant this 13th day of September, 1913, asking that judgment be entered for the defendant in the above entitled case; the plaintiff was represented by Cadle & Byrd, his attorneys, and the defendant appeared by J. H. Burgess, its attorney; and the court having considered the aforesaid motion does find that the above entitled case was on the 24th day of June tried before this court and a jury, and was finally submitted to the said jury; that thereafter, to-wit, on the 26th day of June, 1913, the aforesaid jury, being unable to agree, was discharged by the court without...

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14 practice notes
  • Campbell v. Weller, 865
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 1917
    ...statute a judgment notwithstanding the verdict based merely upon the evidence would be unauthorized. (Jones v. Chicago, B. & Q. R. Co., 23 Wyo. 148, 147 P. 508.) The statute was referred to in the case cited, but not considered further than to state that if it might otherwise have applied i......
  • State v. Scott, 1359
    • United States
    • United States State Supreme Court of Wyoming
    • June 22, 1926
    ...judgment shall be so rendered by the court, although a verdict has been found against such party." See Jones v. C. B. & Q. R. R. Co., 23 Wyo. 148, 147 P. 508; McCoy v. Jones, 61 Ohio St. 119, 55 N.E. 219; Campbell v. Weller, 25 Wyo. 65, 164 P. 881; Dow v. Bryant, 28 Wyo. 508, 206 P. 1061. U......
  • Hein v. Marcante, 2166
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1941
    ...at the trial and excepted to by plaintiff affecting his substantial rights. 64 C. J. 445, 461-470; Secs. 89-2605, 4014; Jones v. Chicago, 23 Wyo. 148; 65 C. J. 121; Hall Oil Co. v. Barquin, 33 Wyo. 292; 70 C. J. 681; Harris v. Schoonmaker, 50 Wyo. 119; Galicich v. Ore. R. R. Co. (Wyo.) 87 P......
  • McClintock v. Ayers, 1344
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 1927
    ...Under Section 5897 C. S., a motion for directed verdict must precede motion for judgment notwithstanding the verdict; Jones v. Ry. Co., 23 Wyo. 148; Richmore v. Co., supra; Campbell v. Weller, supra. Estoppel, not having been pleaded, a discussion of the law of estoppel seems unnecessary; i......
  • Request a trial to view additional results
14 cases
  • Campbell v. Weller, 865
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 1917
    ...statute a judgment notwithstanding the verdict based merely upon the evidence would be unauthorized. (Jones v. Chicago, B. & Q. R. Co., 23 Wyo. 148, 147 P. 508.) The statute was referred to in the case cited, but not considered further than to state that if it might otherwise have applied i......
  • State v. Scott, 1359
    • United States
    • United States State Supreme Court of Wyoming
    • June 22, 1926
    ...judgment shall be so rendered by the court, although a verdict has been found against such party." See Jones v. C. B. & Q. R. R. Co., 23 Wyo. 148, 147 P. 508; McCoy v. Jones, 61 Ohio St. 119, 55 N.E. 219; Campbell v. Weller, 25 Wyo. 65, 164 P. 881; Dow v. Bryant, 28 Wyo. 508, 206 P. 1061. U......
  • Hein v. Marcante, 2166
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1941
    ...at the trial and excepted to by plaintiff affecting his substantial rights. 64 C. J. 445, 461-470; Secs. 89-2605, 4014; Jones v. Chicago, 23 Wyo. 148; 65 C. J. 121; Hall Oil Co. v. Barquin, 33 Wyo. 292; 70 C. J. 681; Harris v. Schoonmaker, 50 Wyo. 119; Galicich v. Ore. R. R. Co. (Wyo.) 87 P......
  • McClintock v. Ayers, 1344
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 1927
    ...Under Section 5897 C. S., a motion for directed verdict must precede motion for judgment notwithstanding the verdict; Jones v. Ry. Co., 23 Wyo. 148; Richmore v. Co., supra; Campbell v. Weller, supra. Estoppel, not having been pleaded, a discussion of the law of estoppel seems unnecessary; i......
  • Request a trial to view additional results

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