Klokstad v. Ward

• Decision Date: 10 November 1964
• Docket Number: No. 8164,8164
• Citation: 131 N.W.2d 244
• Parties: Harold KLOKSTAD, Plaintiff and Appellant, v. Leonard F. WARD. Ward-Williston Drilling Co., Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 244

131 N.W.2d 244

Harold KLOKSTAD, Plaintiff and Appellant, v. Leonard F. WARD. Ward-Williston Drilling Co., Defendants and Respondents.

No. 8164.

Supreme Court of North Dakota.

Nov. 10, 1964.

Syllabus by the Court

1. Where the trial court submits proposed written instructions to counsel and asks that exceptions be taken and allows a reasonably sufficient time, but no exceptions are taken and counsel states he has none, objections to the instructions are waived and cannot be raised on a motion for new trial as error at law. Rule 51(c), N.D.R.Civ.P.

2. Whether a new trial shall be granted on the ground of insufficiency of the evidence to justify the verdict is a matter resting largely in the discretion of the trial court, and the exercise of that discretion will not be be disturbed except in case of an abuse thereof. Held, for reasons stated in the opinion, that there was no abuse of discretion in the instant case.

Duffy & Haugland, Devils Lake, for plaintiff and appellant.

Joseph P. Stevens, Minot, for defendants and respondents.

TEIGEN, Judge.

This is an appeal by the plaintiff from a judgment in his favor and from an order denying a new trial. It is premised on an alleged error in the instructions to the jury and the insufficiency of the evidence to justify the amount of the verdict.

The plaintiff is the owner of land upon which a producing oil well is located. The well is on pump and produces salt water with the oil. As a result of the pumping action the salt water and crude oil form an emulsion which will not separate without the use of chemical and heat. To separate these two fluids a heater-treater was installed at the well site. The salt water is permitted to escape to a salt water or brine pit located near the well. Salt water is destructive to vegetation and poisonous to livestock and may cause land over which it is permitted to flow to become permanently unfit for agricultural purposes. For this reason the disposal of salt water is regulated by the Industrial Commission of the State of North Dakota.

Three oil wells were drilled on the land in question. Only one is a producer. The plaintiff sued for damage to growing crops that occurred when one of the well sites was prepared under the provisions of the lease. He also sued for permanent damage to his land resulting from alleged negligence in permitting salt water to flow upon it, caused by the failure to construct the salt water pit in accordance with the regulation. The jury returned a verdict in favor of the plaintiff on both counts. Plaintiff contends, however, the amount of the verdict is too small and is not justified by the evidence. He asks new trial.

The plaintiff contends the court erred in giving one instruction. This was specified as error in plaintiff's motion for new trial to the district court for the first time. The district court's memorandum denying new trial considered this specification but also noted that the proposed written instructions were submitted to counsel before the jury was instructed and that no exceptions were taken. It denied the motion. The trial record discloses the following colloquy after both parties had rested:

'THE COURT: The record should show that at the commencement of the proceeding this morning, prior to the conclusion of this case and prior to argument of the case to the Jury, that the Court submitted to respective counsel the written Instructions which this Court proposes to give to the Jurors, and at this time, pursuant to Rule 51(c) of the N.D.R.Civ.P., the Court requests counsel to designate such parts or omissions of these Instructions as respective counsel may deem objectionable.

'Mr. Benson?

'MR. BENSON: I have none, sir.

'THE COURT: Mr. Stevens?

'MR. STEVENS: We have done, sir.

Rule 51(c) of the North Dakota Rules of Civil Procedure reads as follows:

'Exceptions to Instructions. The giving of instructions and the failure to instruct the jurors shall be deemed excepted to unless the court, before instructing the jurors, shall submit to counsel the written instructions which it proposes to give to the jurors and shall ask for exceptions to be noted, and thereupon counsel must designate such parts or omissions of such instructions as he may deem objectionable. Thereafter, only the parts or omissions so designated shall be excepted to by the counsel designating the same. All proceedings connected with the taking of such exceptions shall be in the absence of the jurors and a reasonably sufficient time shall be allowed counsel to take such exceptions and to note the same in the record of the proceedings.'

Counsel for the plaintiff admits the instructions were submitted and no exceptions were taken but argues that, because objection was made to the challenged instruction in connection with the motion for new trial, the issue has been presented to the trial court and this is all that is required under the rule announced in Ostmo v. Tennyson, 70 N.D. 558, 296 N.W. 541. In that case this court merely held that upon an appeal from an order denying a motion for a new trial, we will not review any alleged errors not brought to the attention of the trial court and therefore refused to review alleged errors in the instructions to the jury. The taxt of the opinion states no exceptions to the instructions were filed at any time and the attention of the trial court was not called to the alleged errors, but the opinion does not state that proposed written instructions were submitted to counsel for examination and the taking of exceptions.

This case is not authority for an exception to the procedural rule set forth above. To hold otherwise would make the rule meaningless. Where the trial court submits proposed written instructions to counsel and asks that exceptions be taken and allows a reasonably sufficient time, but no exceptions are taken and counsel states he has none, objections to the instructions are waived and cannot be raised on a motion for new trial as error at law. Rule 51(c), N.D.R.Civ.P., supra.

'Objections to the instructions must be timely made, and an objection first made after verdict or in a motion for a new trial is too late in the absence of statutes requiring a different holding.' 4 C.J.S. Appeal & Error Sec. 306(2).

The plaintiff also claims insufficiency of the evidence to justify the verdict in that the verdict is grossly insufficient under the evidence. The case was tried to a jury. It returned a verdict for the plaintiff against the defendant Leonard F. Ward and assessed damages in the sum of $42.75 for damages to growing crops, and in the sum of $600 for damages to plaintiff's land, making a total of $642.75. It dismissed the action against the defendant Ward-Williston Drilling Company. The dismissal is not alleged as error.

The complaint was amended twice during the trial on motion by the plaintiff. The complaint in final form prayed for damages in the amount of $500 to growing crops and $4,500 as permanent damages to land as agricultural land. The plaintiff does not own the oil and gas underlying the land.

This is the second trial of this case. In the first trial the complaint, as amended, alleged special damages to growing crops in the sum of $3,500 and general damages for loss of use in the sum of $1,500, for a total of $5,000. The jury returned a verdict in favor of the plaintiff in the amount of $2,500. The defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. One of the grounds specified was the insufficiency of the evidence to justify the amount of the verdict. The trial court denied the motion for judgment notwithstanding the verdict and ordered new trial on the ground of the insufficiency of the evidence to justify the amount of the verdict, unless the plaintiff would consent to a reduction of the judgment from $2,500 to $1,000. The first trial, however, was not tried on the theory of permanent damage to land. The plaintiff refused to accept the reduced amount and the case was retried. During the second trial, the theory of the plaintiff's case was changed. Plaintiff, in the course of the second trial, again amended his complaint to seek recovery for permanent damage to land abandoning the claimed damage for loss of use. For this reason we will not consider the previous trial as having any weight in this appeal.

The trial court instructed the jury that the regulations provide that salt water or brines may be impounded in excavated earthen pits, provided the level of the liquid in the pits shall at no time be permitted to rise above the lowest point of the ground; that all pits shall have a continuous...