Kowlak v. Tensleep Merc. Co.

• Decision Date: 12 October 1929
• Docket Number: 1565
• Citation: 41 Wyo. 20,281 P. 1000
• Parties: KOWLAK v. TENSLEEP MERC. CO. [*]
• Court: Wyoming Supreme Court

281 P. 1000

41 Wyo. 20

KOWLAK v. TENSLEEP MERC. CO. ^[*]

No. 1565

Supreme Court of Wyoming

October 12, 1929

APPEAL from the District Court, Washakie County; EDGAR H. FOURT Judge.

Action by John Kowlak as next friend for Matthew Kowlak, a minor child, against Tensleep Merc. Co., a corporation, for personal injuries alleged to have been caused by burning gasoline in an open container, ignited by accident, and thrown in the direction of said minor, causing burns and injuries. There was a verdict and judgment in favor of defendant. From an order granting plaintiff's motion for a new trial, defendant appeals.

Reversed.

For the defendant and appellant, there was a brief and oral argument by C. H. Harkins, of Worland, Wyoming.

The court erred in overruling defendant's motion for a directed verdict, the defendant having failed to establish a claim for damages. Calkins v. Mining Co., et al., 25 Wyo. 409, 171 P. 265. The court erred in overruling and denying defendant's motion to strike from the files plaintiff's motion for a new trial, and in sustaining plaintiff's motion for a new trial, said motion not having been filed at the term of court, at which the verdict was rendered. Kent v. Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo. 48; McKinney v State, 3 Wyo. 719; Casteel v. State, 9 Wyo 267; Boswell, Admr. v. Bliler, 9 Wyo. 277; Blonde v. Merriam, et al., 21 Wyo. 513, 133 P. 1076; Todd, et al. v. Peterson, 13 Wyo. 513, 81 P. 878; Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255; Board of Education of City of Lawton v. School Dist. No. 49, (Okla.) 114 P. 742; Muse, et al. v. Harris, (Okla.) 254 P. 72; 20 R. C. L. 302; Secs. 83 and 84, 46 C. J. 299, Sec. 271. The evidence does not establish negligence on the part of defendant; terms of court in Washakie County begin on the second Monday in March and on the second Monday of September of each year. 1137 C. S. Motions for new trials must be made at the term the verdict, report, or decision is rendered, except for the cause of newly discovered evidence which could not with reasonable diligence have been discovered and produced at the trial, and motion must be filed within 10 days after the verdict or decision is rendered unless unavoidably prevented. 5872 C. S. The verdict was rendered on March 10, 1928; there is no showing that the plaintiff was unavoidably prevented from filing his motion for new trial within the time created by statute; his motion was filed 7 days after the term had expired. The provisions of the statute are mandatory; Kent v. Upton, 3 Wyo. 43; Todd v. Peterson, 13 Wyo. 519; Mitter v. Black Diamond Coal Co., 28 Wyo. 439. The judgment of the trial court, granting a new trial should be reversed.

For the plaintiff and respondent there was a brief by C. A. Zaring of Basin, and Lin I. Noble of Thermopolis, and oral argument by Mr. Zaring.

Appellant was not prejudiced by the denial of his motion for a directed verdict, the jury having returned a verdict in favor of defendant; the evidence shows negligence on the part of the defendant. No mention is made in appellant's brief as to specification of Error No. 2; as to denial of defendant's motion to strike plaintiff's motion for a new trial. Grounds relied on by plaintiff in a motion for a new trial, were that the court committed error in giving instructions requested by defendant and excepted to by plaintiff, and notwithstanding the fact that counsel for appellant has failed to make any mention as to the ruling of the court granting a new trial, we believe that an examination of said instructions will show that they were erroneous, and the following authorities are submitted in support of our contention. Sackett on Inst. Vol. I, Par. 171, 176, 191 and 315. Conrad v. Cleveland R. R. Co., 72 N.E. 489; Ins. Co. v. Clark, 59 S.W. 7. The rule in emergency and sudden peril cases, does not apply where one's contributory negligence has led him into the emergency. 203 N.W. 380. The verdict was returned on March 10, 1928, the last day of the term. The motion for a new trial was filed subsequent to March 12th, but within 10 days after the verdict. On March 19, 1928, defendant filed a motion to strike plaintiff's motion from the files; on June 21, 1928, defendant's motion to strike was denied by the court. This order must be construed as a finding that plaintiff was unavoidably prevented from filing a motion for a new trial at the term the verdict was rendered. Schallehn v. Hibbard, (Kans.) 68 P. 61. Appellant's authorities, Kent v. Upton, and McLaughlin v. Upton, are not in point, both involving the question as to authority to extend time for filing motions; McKinney v. State involved a different statute, and likewise Casteel v. State, both being criminal cases. No question of unavoidable prevention was involved in Boswell v. Bliler. Blonde v. Merriam is another case, involving authority to extend time and Todd v. Peterson, was a case in which the motion was filed out of time, and at the wrong time. Hall Oil Co. v. Barquin, and Board v. School District, have no application to the present case. The only case in point here is Schallehn v. Hibbard, supra, which constituted a statute identical in language with that of Wyoming, excepting that the time limit is three days instead of ten days as in our statute. In that case the reviewing court presumed that the record showed avoidable prevention from filing the motion within the term. This Kansas case is quoted with approval in Blonde v. Merriam, supra. We believe the Kansas case to be a safe guide in disposing of the question and that the order sustaining respondent's motion for a new trial should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case is before the court by direct appeal from an order of the District Court of Washakie County, sustaining a motion for a new trial. The action was brought by John Kowlak as next friend for Matthew Kowlak, a minor child, plaintiff and respondent--hereinafter generally designated as the "plaintiff"--against Tensleep Mercantile Company, a corporation, defendant and appellant--subsequently designated herein as the "defendant"--to recover for injuries caused by alleged negligence on the part of one of the latter's employees.

Plaintiff's petition, after alleging the corporate existence of the defendant, the fact of its being engaged in the mercantile business and also in operating a gasoline filling station in front of its store building at Tensleep, Wyoming, and that plaintiff and his family were travelling to the mountains above Tensleep, on June 25, 1925, charges that:

"On said day the said John Kowlak stopped his car on the public highway in front of defendant's place of business for the purpose of purchasing gasoline from the defendant with which to fill his car; and the occupants of the car, including said Matthew Kowlak, alighted from the car and were standing in the public highway near the car, while it was being filled with gasoline by the defendant.

"That the said defendant, while engaged in filling the said car with gasoline from its said filling station, did then and there attempt to handle said gasoline in an open can and that said gasoline became ignited in said can in the hands of one of the defendant's employees; and while so ignited the said defendant, by its employee, wrongfully, negligently and carelessly threw the said burning gasoline upon and against the body of the said Matthew Kowlak, and as a result of the said wrongful, careless and negligent acts of the defendant in throwing said gasoline upon the said child, both legs of the said child, Matthew Kowlak, were horribly burned, maimed and injured."

The remaining portions of the pleading aver the alleged negligent acts to have been done by defendant's employee in the course of his employment and within his authority, and describes and makes claim for the damages alleged to have resulted to Matthew Kowlak in consequence of such negligence. Admitting its corporate existence and the nature of its business, defendant's answer otherwise was a general denial. A jury having been demanded by the defendant, the case proceeded to trial on March 10, 1928, and was concluded on that day. It appears from the record that the jury returned its verdict in favor of the defendant, late in the evening of March 10, 1928, which was on a Saturday and the last secular day of the September 1927 term of court--the March 1928 term commencing on the following Monday, the 12th of that month.

On March 19, and after the term at which the case was tried had closed, but within ten days of the rendition of the verdict of the jury, plaintiff filed his motion for a new trial. March 26th the defendant filed its motion to strike this motion for a new trial from the files, on the ground that it was not made at the term the verdict sought to be set aside was rendered. Thereafter and on June 21, 1928, the trial court denied the motion to strike and entered the order appealed from, sustaining the motion for a new trial.

It is assigned as error, that the defendant's motion to strike should have been sustained, and our attention is directed to Section 5872, Compiled Statutes of Wyoming 1920, which reads:

"The application for a new trial must be made at the term the verdict, report or decision is rendered; and except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be made within ten days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time."

The following section of the statutes provides that:

"The application must be by motion, upon written grounds, filed at the...