Junge v. Jerzak

Decision Date21 March 1994
Docket Number18365,Nos. 18362,s. 18362
PartiesLavonne JUNGE and Hiene Junge, Plaintiffs and Appellees, v. John T. JERZAK and F.J. McLaughlin Company, a/k/a, McLaughlin and Schultz, Inc., A Minnesota Corporation, Defendants and Appellants. . Considered on Briefs on
CourtSouth Dakota Supreme Court

Roger W. Ellyson, Ellyson Law Office, Watertown, for plaintiffs and appellees.

R. Greg Bartron, Bartron, Wiles, Rylance & Holgerson, Watertown, for defendants and appellants.

WUEST, Justice.

Defendants John Jerzak and the F.J. McLaughlin Company (hereinafter Jerzak) appeal the circuit court's order granting plaintiffs' LaVonne and Hiene Junge (hereinafter Junge) a new trial. We affirm.

FACTS

On October 3, 1990, Jerzak was driving his employer's pickup truck east on Seventh Avenue Southwest in Watertown, South Dakota. Jerzak stopped in the traffic lane, put his truck into reverse and backed up, apparently to position his vehicle so as to maneuver the pickup truck into a parallel parking space. At approximately the same time, Junge was preparing to turn east onto Seventh Avenue as she exited a supermarket parking lot. Junge observed the Jerzak truck pass the parking lot driveway. Junge pulled out into the traffic lane and then observed the Jerzak truck stop and back up in the traffic lane; thus, Junge stopped. The only way Junge could have avoided the pending collision would have been for Junge to quickly back up into the parking lot. Junge was unable to avoid the collision, and the Jerzak truck backed into Junge. Jerzak pled guilty to a charge of driving under the influence of alcohol (DUI) in conjunction with this accident.

Junge filed a complaint alleging that Jerzak was negligent or reckless in the operation of his motor vehicle and that such negligence caused the collision; and sought damages for personal injuries and property damage. Jerzak answered denying the allegations of negligence, and pled the affirmative defense that Junge was guilty of negligence more than slight, barring Junge's recovery. Trial was held to a jury. At the close of all the evidence, Junge moved for a directed verdict on the issue of Jerzak's negligence, which motion the court denied.

During settlement of jury instructions, the court proposed a packet of instructions which was supplied to counsel. The court proposed to instruct the jury on the contributory negligence of the plaintiff Junge. The record reveals that Junge objected to contributory negligence instructions on the ground that there was "no evidence to substantiate that there could have been any contributory negligence." The court overruled all such objections.

The record further reveals that during closing arguments, counsel for Jerzak made certain statements to the jury including the following comments about gambling:

[I] believe the plans began at [the time of the accident] to solve Mrs. Junge's financial problems as well as her husband's.... Mrs. Junge is presently playing slots, as near as I can figure out, feverishly, as often as she can.... [W]e may have exposed a gambling problem, Ladies and Gentlemen. So to give her money to play the machines would only make the situation worse.

Counsel for Junge objected to these comments, which objection the court sustained; of course, the jury had already heard these statements. Additionally, counsel for Jerzak stated:

And I'm telling you that you have an opportunity here today, Ladies and Gentlemen, to start to control what's wrong with this country's economy.

Junge's objection to this statement was sustained. Counsel for Jerzak continued:

Ladies and Gentlemen, you do have an opportunity here to see that these claims aren't awarded. You do have an opportunity here to stop payment on these types of claims. You do have an opportunity here to send a message to other people who try through trickery, through deciding they've got an opportunity and very well-rehearsed, presenting their opportunity to you so that they can spend the rest of their life--I don't know, gambling?

Junge's objection to this line of commentary was overruled.

The jury returned a verdict for Jerzak. Thereafter, Junge moved for judgment notwithstanding the verdict on the ground that the evidence presented at trial was insufficient to justify such a verdict, or that the verdict was contrary to law. Additionally, Junge moved for a new trial, urging three possible grounds: (1) Insufficiency of the evidence to justify the verdict; (2) improper closing arguments, appealing to the jurors' passions and prejudices; and (3) improper instruction on contributory negligence.

After a hearing, the court granted Junge's motion for new trial, stating two grounds in its order: (1) That reasonable people could not differ on whether Jerzak violated SDCL 32-30-20; 1 and (2) that the jury should have been instructed that Jerzak was negligent as a matter of law. From this order granting a new trial, Jerzak appeals.

STANDARD OF REVIEW

We have previously set out the standard to be applied upon this court's review of the trial court's grant of a motion for new trial:

"Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this court will not disturb the trial court's decision absent a clear showing of abuse of discretion." Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990). Accord Simmons v. City of Sioux Falls, 374 N.W.2d 631 (S.D.1985). "If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial." Id. at 632. "[W]e determine that an abuse of discretion occurred only if no 'judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.' " Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991) (quoting Estate of Pejsa, 459 N.W.2d 243, 245 (S.D.1990); Estate of Smith, 401 N.W.2d 736 (S.D.1987)). Finally, we note a decision to grant a new trial stands on firmer footing than a decision to deny a new trial. Simmons, 374 N.W.2d at 632.

Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992). This court has further noted that, "On appeal from a judgment insufficiency of the evidence may be reviewed if it was called to the attention of the trial court by motion for a directed verdict, request for findings, or other apt motion, offer, objection, or exception without necessity for an application for new trial." Bunnell v. Kindt, 83 S.D. 377, 380, 159 N.W.2d 923, 925 (1968) (citations omitted).

I. WAS THE GRANT OF A NEW TRIAL WITHIN THE COURT'S DISCRETION?

Jerzak urges that the circuit court abused its discretion in granting a new trial for two reasons. First, Jerzak argues that the court improperly granted a new trial when it did so for a reason that Junge did not advance, and that the judge erred when he "did not confine himself to the reasons advanced by the parties." Second, Jerzak argues that the error of law--failure to properly instruct the jury--was not properly preserved by Junge. We disagree on both points.

As to Jerzak's first argument, it is our view that the reasons noted by the court for granting the new trial are within the ambit of the grounds for new trial advanced by Junge. Junge urged insufficiency of evidence to support the verdict; the court stated that reasonable people could not differ on whether Jerzak violated SDCL 32-30-20--thus implying that the evidence was insufficient to support the jury's verdict. Junge also urged that the jury was improperly instructed; the court stated that the jury should have been instructed that Jerzak was negligent as a matter of law.

We also disagree with Jerzak's contention that the court must "confine" itself to the reasons advanced by the parties when considering the propriety of granting a new trial. In fact, the circuit court need not have a new trial motion before it. The parties should take note of SDCL 15-6-59(d) which provides:

Not later than ten days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

Id. (emphasis added). Thus, a court may grant a new trial on its own motion, or for reasons not advanced by the parties. In an early case, this court stated:

We are of the view that where the trial court is satisfied there has been a mistrial, or a clear miscarriage of justice, growing out of a failure of the court itself to discharge the duties of its office, the court has inherent power to grant a new trial by reason thereof at any time while the question of a new trial is pending before him, and on this ground he may grant a new trial, without application or motion by either party, wholly upon his own motion.

Larsen v. Johnson, 43 S.D. 223, 227, 178 N.W. 876, 877 (1920). 2 More recently, this court stated that, "[U]nder SDCL 15-6-59(d), a trial court, on its own initiative, may order a new trial for any reason for which it might have granted a new trial on motion of a party." Case v. Murdock, 488 N.W.2d 885, 888 (S.D.1992). This holding comports with the guidelines found in other authority:

A trial court has, by virtue of its inherent powers, authority upon its own motion to set aside a verdict and grant a new trial, at least in the absence of any statutory limitation upon its power in this regard.... A trial court may grant a new trial where, by reason of some misapplication of the principles of law, or in consequence of some inadvertence, it is satisfied that a party has not had his or her cause properly presented, even though no exception was taken or attention called to the misapplication or inadvertence. ... Where a party files a motion for a new trial on stated...

To continue reading

Request your trial
12 cases
  • Veeder v. Kennedy, 20360
    • United States
    • Supreme Court of South Dakota
    • February 24, 1999
    ...1998 SD 21, p 10, 574 N.W.2d 898, 901, (citing Schuldies v. Millar, 1996 SD 120, p 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (citations omitted)); see also State v. DeNoyer, 541 N.W.2d 725, 733 (S.D.1995); Bridge v. Karl's, Inc., 538 N.W.2d 521, 523 ¶26 At ......
  • Rogen v. Monson
    • United States
    • Supreme Court of South Dakota
    • April 19, 2000
    ...Andreson, 1997 SD 12, ¶ 5, 559 N.W.2d at 887 (quoting Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (other citations omitted)))). "An abuse of discretion is when no `"judicial mind, in view of the law and the circumstances of......
  • Wuest ex rel. Carver v. McKennan Hosp.
    • United States
    • Supreme Court of South Dakota
    • December 6, 2000
    ...the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. Junge v. Jerzak, 519 N.W.2d 29 (S.D.1994). If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial. Id., 519 ......
  • Andreson v. Black Hills Power & Light Co.
    • United States
    • Supreme Court of South Dakota
    • February 19, 1997
    ...on firmer footing than a decision to deny a new trial." Schuldies v. Millar, 1996 SD 120, p 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (citations omitted)); see also State v. DeNoyer, 541 N.W.2d 725, 733 (S.D.1995); Bridge v. Karl's, Inc., 538 N.W.2d 521, 52......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT