Klipp v. Grusing, 15986.

• Decision Date: 06 December 1948
• Docket Number: 15986.
• Citation: 119 Colo. 111,200 P.2d 917
• Parties: KLIPP v. GRUSING.
• Court: Colorado Supreme Court

200 P.2d 917

119 Colo. 111

KLIPP v. GRUSING.

No. 15986.

Supreme Court of Colorado, in Department.

December 6, 1948

Error to District Court, Kit Carson County; G. Russell Miller Judge.

Action by Herman Grusing against Emil Klipp for adjudication of right to possession of real estate and for damages for alleged wrongful trespass, wherein defendant filed a counterclaim. To review a judgment, defendant brings error.

Judgment reversed and cause remanded.

Robert L. McDougal, of Denver, for plaintiff in error.

Thornton H. Thomas, Jr., of Burlington, for defendant in error.

JACKSON, Justice.

In an action for adjudication of the right to possession of real estate and for damages for alleged wrongful trespass brought under rule 105, Rules of Civil Procedure, Colo., defendant in error, plaintiff in the trial court, recovered judgment for the right to exclusive possession of one hundred sixty acres of land in Kit Carson county, Colorado, together with an adjoining acreage upon which defendant's cattle had been grazing. The judgment was entered after a three-day trial to a jury, at the conclusion of which counsel for defendant and counsel for plaintiff both moved for a directed verdict. The court overruled both motions, but on its own motion took the case from the jury. It found that there was a tenancy at will; also 'that the testimony as offered in support of damages, pasture rent and labor is purely speculative and so uncertain that it should not be submitted to the jury.' This included all items in defendant's counterclaim, as well as in plaintiff's complaint. The court ordered 'that possession of the property be delivered to plaintiff on or Before August 1, 1947; that an accounting be made for the corn rent on or Before August 1947; that [defendant's] cattle be removed on or Before August 1947;' and that defendant's buildings and improvements be removed on or Before September 1, 1947.

Among the fifteen specifications of points is No. 4: 'The trial court erred in taking disputed questions of fact from the jury, and directing a verdict in favor of the plaintiff * * *,' and No. 7: 'The trial court invaded the province of the jury.'

In support of the trial court's action in taking the case from the jury, counsel for plaintiff argues that, since both parties moved for a directed verdict, this was tantamount to withdrawing the case from the jury. Wells v. Blystad, 91 Colo. 346, 14 P.2d 1078. However, Rule 50(a), Rules of Civil Procedure, Colo., has superseded that case and that of Parker v. Plympton, 85 Colo 87, 273 P. 1030. This rule provides, inter alia:

'A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts.'

This follows the rule and practice in federal courts. United States v. Brown, 4 Cir., 107 F.2d 401. Accordingly,

'Where evidence did not warrant direction of verdict for either party, but trial court directed verdict for plaintiff, judgment must be reversed and new trial granted, notwithstanding motion by both sides for directed verdict. Rules of Civil Procedure for District Courts, rule 50(a), 28 U.S. C.A. following section 723c.' Cited in United States v. Brown, supra.

The evidence discloses that defendant first talked with plaintiff in the fall of 1944 about working for him and renting some land. At that time plaintiff seems to have been primarily interested in procuring men to work on his three thousand three hundred sixty acre tract. Defendant at the time was a tenant on a neighboring tract where his tenancy was about to expire. He was looking for a new place to locate where he could either work or enter into a landlord-tenant relationship. Early in 1945 defendant began working the quarter section of plaintiff's land mentioned in the complaint, apparently under an oral agreement permitting him to use the quarter section and account for the landlord's one-quarter share of any crop raised on it, together with an agreement to work for wages whenever plaintiff needed extra help. On this tract, in May 1945, he planted hybrid corn at the suggestion of plaintiff who furnished the seed. Defendant also planted some white corn and sixty to sixty-five acres of yellow corn--approximately one hundred acres in all. During the year 1945 defendant did not live on plaintiff's land. In the fall of that year he asked the privilege of pasturing his thirty-five head of cattle and nine small calves on plaintiff's land, and plaintiff agreed provided defendant would at the same time take care of two hundred head of plaintiff's cattle which he was intending to put on pasture. ...