Kohler v. Stephens

• Decision Date: 28 August 1946
• Docket Number: 7014.
• Citation: 24 N.W.2d 64,74 N.D. 655
• Parties: KOHLER v. STEPHENS et al.
• Court: North Dakota Supreme Court

24 N.W.2d 64

74 N.D. 655

KOHLER v. STEPHENS et al.

No. 7014.

Supreme Court of North Dakota

August 28, 1946

Rehearing Denied Sept. 23, 1946.[Copyrighted Material Omitted]

Syllabus by the Court

1.After hearing an alternative motion by a defendant for a judgment notwithstanding the verdict or for a new trial, the trial court signed and filed with the clerk of the district court an instrument which he designated a memorandum opinion in which he used language appropriate to an order denying the motion for a new trial upon condition that the plaintiff accept a specified reduction of the verdict within a certain time, which instrument further provided that if the plaintiff did not file a consent to the reduction within the time prescribed '* * * an order shall be entered vacating the judgment against said defendant, vacating and setting aside the verdict of the jury, and granting a new trial as against the defendant Landgrebe.'A copy was mailed to plaintiff's attorneys.It also appears from the statement of the court made at a subsequent hearing on the matter that the court did not intend the memorandum to be the final act of the court with respect to the motion but contemplated that a formal order would be made.It is held that the proceedings thus had did not constitute final action by the trial court on the motion for a new trial so as to terminate the court's jurisdiction with respect thereto and render erroneous the granting of an extension of time for plaintiff's acceptance of the reduction of the verdict and the ultimate denial of appellant's motion.

2.The granting of a new trial on the ground of insufficiency of the evidence to sustain the verdict lies in the sound judicial discretion of the trial court.When there is a substantial conflict in the evidence and in the absence of a showing of the abuse of such discretion the appellate court will not interfere.

3.On a review of the trial court's action with respect to a motion for judgment notwithstanding the verdict, the appellate court will construe the evidence most strongly against the party who seeks to have a judgment entered notwithstanding the verdict.

4.It is a generally accepted rule in aid of the construction of a statute, that a limiting phrase or clause is to be restrained to the last antecedent unless the subject matter or context indicates a different legislative intent.

5.Under the provisions of Ch. 158, Sess.Laws N.D.1931, Sec 39-0902, Par. 4, R.C.N.D.1943, it is prima facie lawful for the driver of a motor vehicle to drive the same at a speed not exceeding twenty miles an hour in traversing or going around curves.

6.In an action for personal injuries resulting from a collision of motor vehicles it is not error to admit in evidence a sketch or diagram made by a witness, who arrived on the scene shortly after the accident, which tends to visualize and explain the witness's testimony by depicting matters relevant to the issues which he actually saw upon his arrival.

7.The erroneous admission of evidence does not constitute reversible error unless it is prejudicial.

8.Where a sketch or diagram containing conclusions of a witness is erroneously received in evidence as a part of his testimony and the opposing party subsequently introduces in evidence, without limitation as to purpose, a similar exhibit upon which is depicted substantially the same conclusions by the same witness, the prejudicial effect of the erroneous introduction of the first exhibit is mitigated and reversible error may not be predicated thereon.

9.Under the provisions of Ch. 184, Sess.Laws N.D.1931, Ch. 39-15, R.C.N.D.1943, a guest in a vehicle moving upon a public highway has no right of recovery against the owner, driver or person responsible for the operation of such vehicle for injuries sustained while riding as such guest unless they proximately result from the intoxication, willful misconduct or gross negligence of the owner, driver or person responsible for the operation of the vehicle.

10.In an action seeking a joint judgment against two defendants for personal injuries arising out of the concurrent negligence of such defendants, one of the defendants upon appeal from a judgment rendered against him may not predicate error upon the ground of misinstruction too favorable to his co-defendant in whose favor the jury rendered a verdict.

Burnett, Bergesen, Haakenstad & Conmy, and Marion Jane Leslie, all of Fargo, and George S. Register, of Bismarck, for plaintiff and respondent.

Sproul & Sad, of Valley City, for defendant and respondent.

Wattam, Vogel & Vogel, of Fargo, and Sullivans, Fleck & Higgins, of Mandan, for defendant and appellant.

MORRIS, Judge.

In this action the plaintiff seeks damages for personal injuries resulting from a collision between an automobile and a truck on U.S. HighwayNo. 10 in western Barnes County.The accident occurred at about 9 o'clock P. M., Central War Time, July 26, 1942.The jury rendered a verdict of $7500 against the defendant Landgrebe and for a dismissal of the action against the defendant Stephens.An amended judgment was entered pursuant to the verdict on September 27, 1944.Thereafter the defendant Landgrebe made an alternative motion for a judgment notwithstanding the verdict or for a new trial.After hearing the motion and after other proceedings had, the court denied the motion upon the condition that the plaintiff accept a reduction of the verdict from $7500 to $5000 and ultimately on January 26, 1946, ordered the judgment reduced to $5000 with interest and costs to be taxed by the clerk.Pursuant to the court's order an amended judgment was entered in the court below on February 27, 1946, nunc pro tunc November 7, 1945.The defendant Landgrebe appeals from this judgment and from an order of the court denying a new trial.

The defendant Landgrebe also appeals '* * * from that certain order made by the Honorable Daniel B. Holt, Judge of the above court under date of February 26, 1946, nunc pro tunc November 7, 1945, denying the defendant, George Landgrebe's motion to make absolute the granting of a new trial herein.'The challenge thus made presents a question in procedure the determination of which is preliminary to the consideration of other assignments of error.

After the court had heard the appellant's motion for judgment notwithstanding the verdict or for a new trial, he prepared an extensive memorandum opinion dated September 26, 1945, and filed it with the clerk of the district court two days later.After discussing the specifications of error that had been argued to the court, including the sufficiency of the evidence to support the verdict in the amount rendered, the court said:

'On the entire record, the court thinks that an award of five thousand dollars would be adequate compensation for the damages resulting from the accident.It is accordingly ordered that the motion for judgment non obstante be denied, and that the judgment entered on the verdict of the jury against the defendant Landgrebe for seven thousand five hundred dollars be reduced to five thousand dollars, and in case plaintiff does not file a written consent to such reduction within fifteen days from the service of this order upon him, an order shall be entered vacating the judgment against said defendant, vacating and setting aside the verdict of the jury, and granting a new trial as against the defendant Landgrebe.'

Although a copy of the memorandum opinion was not formally served on plaintiff's counsel, a copy thereof was mailed to him.

On October 4, 1945, one of the attorneys for the plaintiff wrote to the court as follows:

'We are in receipt of your memorandum opinion of September 26, 1945, in which the motion for judgment non obstante is denied and order is made that the judgment for $7500.00 be reduced to $5000.00, and that plaintiff file written consent to such reduction within fifteen days.

'We assume that the order of the court does not affect that portion of the judgment which the clerk has allowed covering interest and costs and with that understanding the plaintiff consents to the reduction ordered by the court with the following provisos:

"That it be understood that by such consent the plaintiff waives no right which he has or may have to the claim for the full amount of the verdict in the sum of $7500.00 in case the defendant Landgrebe proceeds with an appeal to the Supreme Court.'

'You may file this letter with the records in the case as acceptance of the conditions contained in the court's order subject to the provisos herein stated.We shall appreciate hearing from the court as to whether the court deems this as sufficient in the premises.'

On October 26, 1945, the appellant served on the attorneys for plaintiff a notice of motion'For an order granting to the defendant, George Landgrebe, a New Trial, in accordance with the court's order of September 26, 1945, the plaintiff having failed to file a written consent within the time allowed by the court.'This motion was heard on November 7, 1945, at which time attorneys for plaintiff in open court unconditionally accepted the reduction of the verdict and presented and filed an affidavit to that effect.

A transcript was made of the proceedings had on November 7th.The court after reviewing the contentions of the parties said:

'That calls, it seems to me, for a construction of the court's opinion.The court did not, in writing that opinion, intend to make the opinion an order.That is not its practice in the past.But it did contemplate that a formal order would be drawn up by the attorney for the defendant and presented to the court for its signature, and that such order should be served upon the plaintiff.That formal order never has been made...