Kinnischtzke v. City of Glen Ullin

• Decision Date: 08 January 1953
• Docket Number: No. 7335,7335
• Parties: KINNISCHTZKE v. CITY OF GLEN ULLIN.
• Court: North Dakota Supreme Court

Page 588

57 N.W.2d 588

79 N.D. 495

KINNISCHTZKE v. CITY OF GLEN ULLIN.

No. 7335.

Supreme Court of North Dakota.

Jan. 8, 1953.

On Rehearing March 25, 1953.

Syllabus by the Court.

1. A motion for judgment notwithstanding the verdict, in effect calls for a review of the trial court's ruling in denying a previous motion for a directed verdict and thus brings before the trial court for a second time the questions properly raised by the motion for a directed verdict.

2. The supreme court on appeal from an order denying a motion for judgment notwithstanding the verdict may review the ruling on the motion for directed verdict and may order judgment to be entered when it appears from the testimony that a verdict should have been so directed.

3. Where a purported motion for judgment notwithstanding the verdict does not challenge the correctness of the trial court's ruling in denying a previous motion for a directed verdict, the motion for judgment notwithstanding the verdict is a nullity.

4. The state may not be sued in its own courts without its consent.

5. The legislature by giving municipalities authority to establish and maintain sewer systems and where necessary to conduct sewage beyond the municipal limits, Sections 40-2202 and 40-2203, NDRC 1943, did not sanction acts of a municipality resulting in private damage where that damage was not the inherent result of the exercise of statutory authority.

6. Negligence may or may not result in the creation of a nuisance, and, on the other hand, a nuisance may be created wholly without negligence.

7. Where a municipality purposely or negligently so operates a sewage disposal plant that it becomes a nuisance which results in injury to property, the municipality is liable for damages in an amount sufficient to compensate for the injury.

8. Where two items of damages, one to personal property and one to real property, have been pleaded without challenge in one cause of action but the evidence fails to show measurable damages to the personal property, it is error for the trial court to refuse a requested instruction eliminating the item of damages to personal property from the consideration of the jury.

On Rehearing

9. Where at the beginning of a trial an attempt is made to challenge the sufficiency of a pleading for the first time by objecting to the admission of any evidence thereunder, the objection will be construed strictly, while the pleading against which it is directed will be given a most liberal construction.

T. J. Boutrous, of Glen Ullin, and Higgins & Donahue, of Bismarck, for defendant-appellant.

J. K. Murray and W. J. Austin, both of Bismarck, for plaintiff-respondent.

MORRIS, Chief Justice.

This is an action for damages against the City of Glen Ullin based upon negligent injury to plaintiff's property. The complaint alleges that the plaintiff owns 640 acres of land approximately one-half mile from the City of Glen Ullin and maintains thereon his home and residence for his family. It is then alleged that the defendant carelessly and negligently operates its sewer system and cesspool and by reason of such negligence causes the city sewage and offal to be discharged into a creek which flows through and adjacent to the plaintiff's premises and that the sewage has polluted the water in the creek and has piled up on the banks thereof adjacent to plaintiff's premises and home, causing a nauseating stench that has greatly damaged the plaintiff personally and injured the value of the premises; that plaintiff's livestock drink the water from said creek and that as a result of the pollution the plaintiff's cattle have become greatly emaciated and reduced in value.

The defendant answered with a general denial and further answering the complaint admitted that it maintains and operates a sewage system for the treatment of sewage and waste which flows into a creek running across plaintiff's farm. It states that in so doing it acts entirely in a governmental capacity and in the performance of a governmental function; that it acts pursuant to the laws of the State of North Dakota and in accordance with approved engineering standards and in accordance with the plans and specifications approved by the state board of health; that the sewage passes through an Imhoff septic tank where it is properly treated before being discharged; and that the defendant operates the sewage system in a prudent and lawful manner. The defendant also alleges that the plaintiff purchased his land with actual knowledge of the sewage system of the City of Glen Ullin and its manner of discharge and that the farm and lands have not decreased in value since his purchase thereof and that by virtue of his purchase of the farm with such knowledge he is now estopped from alleging or claiming damages due to the proper operation of the defendant's sewage system.

The case was tried to a jury and a verdict returned in favor of the plaintiff, upon which judgment was rendered December 7, 1951. On December 11, 1951, the defendant moved for a judgment notwithstanding the verdict. This motion was denied by the trial court in an order dated January 15, 1952. On June 7, 1952, the defendant caused to be served on the plaintiff's attorney and filed with the clerk of the district court a notice of appeal from the judgment entered on December 7, 1951. No appeal was taken from the trial court's order denying defendant's motion for judgment notwithstanding the verdict.

The record in this case involves an important question of practice which affects the scope of our review. The plaintiff and respondent herein contends that the order denying the defendant's motion for judgment notwithstanding the verdict is an appealable order and that, no appeal having been taken therefrom and the order being now final, the sufficieny of the evidence which was challenged by the motion cannot now be considered by this court on appeal from the judgment.

A motion for a judgment notwithstanding the verdict can only be entertained when at the trial the moving party asked the trial court for a directed verdict and was denied. A motion for judgment notwithstanding the verdict, in effect, reviews the court's ruling in denying a previous motion for a directed verdict and thus brings before the trial court for the second time the question of the sufficiency of the evidence to sustain a verdict adverse to the moving party. Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455; Ennis v. Retail Merchants Association Mutual Fire Ins. Co., 33 N.D. 20, 156 N.W. 234; Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 95 A.L.R. 418; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456.

In a number of cases prior to 1934 this court held that an order denying a motion for judgment notwithstanding the verdict is not an appealable order. Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Houston v. Minneapolis, St. Paul, & Sault Ste. Marie Ry. Co., 25 N.D. 469, 141 N.W. 994, 46 L.R.A.,N.S., 589, Ann.Cas.1915C, 529; Starke v. Wannemacher, 32 N.D. 617, 156 N.W. 494, 4 A.L.R. 167; Welch Manufacturing Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849; Stratton v. Rosenquist, 37 N.D. 116, 163 N.W. 723; Gray v. Elder, 61 N.D. 672, 240 N.W. 477. In Welch Manufacturing Co. v. Herbst Department Store, supra, it was held that under the provisions of Chapter 335, SLND 1923, where a motion for a directed verdict has been denied and the moving party thereafter moves in the alternative for a judgment notwithstanding the verdict or for a new trial and the court denies the motion for judgment but grants or denies the motion for new trial, the moving party may appeal from the whole order and have the ruling on the motion for judgment notwithstanding the verdict reviewed in the supreme court.

In 1934 this court decided:

'A motion for a judgment notwithstanding the verdict, which is not coupled with an alternative motion for a new trial, cannot be made after the judgment is entered.' Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 95 A.L.R. 418.

Following this decision, the legislature, by the enactment of Chapter 245, SLND 1935, provided that:

'An order for judgment notwithstanding the verdict may also be made on a motion in the alternative form asking therefor, or if the same be denied, for a new trial. Such motion, singly or in the alternative, may be made either before or after entry of judgment.'

thus establishing by statute that a motion for a judgment notwithstanding the verdict might be made either before or after the judgment was entered. This statute also provided that:

'If the motion for judgment notwithstanding the verdict be denied, the Supreme Court, on appeal from the judgment, may order judgment to be entered, when it appears from the testimony that a verdict should have been so directed; and it may also so order on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order.'

This language also appears in Chapter 220, SLND 1945, Section 28-1509, 1949 Supp. NDRC. After the enactment of this statute we continued to hold that an order denying a motion for a judgment notwithstanding a verdict is not an appealable order. Stormon v. District Court, 76 N.D. 713, 38 N.W.2d 785.

It is of more than passing interest to note that in Kinney v. Brotherhood of American Yeomen, 15 N.D. 21, 106 N.W. 44, this court held that it is a proper and commendable practice to include in a single notice of appeal an appeal from a judgment and an appeal from an order made after judgment denying a motion for judgment notwithstanding the verdict or for a new trial.

The practice question with which we are now concerned arises under Chapter 204, SLND 1951, purporting to amend and reenact Section 28-1510, NDRC 1943, as amended by Chapter 220, SLND 1945, and Section 28-1511, NDRC 1943, so that these sections now read as follows:

'28-1510. Motion for...