Leake v. Hagert

• Decision Date: 25 March 1970
• Docket Number: No. 8569,8569
• Citation: 175 N.W.2d 675
• Parties: Allen LEAKE, Plaintiff and Appellant, v. Charlotte HAGERT, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 675

175 N.W.2d 675

Allen LEAKE, Plaintiff and Appellant, v. Charlotte HAGERT, Defendant and Respondent.

Civ. No. 8569.

Supreme Court of North Dakota.

March 25, 1970.

Syllabus by the Court

1. The hearsay rule prohibits use of a person's assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it.

2. Where a witness testifies as to what the declarant said to the witness, it is error for the trial court to admit such evidence but it is not prejudicial error where adverse witnesses testified during the trial as to what the declarant had said. Rule 61, N.D.R.Civ.P.

3. The admission into evidence of field notes which contain hearsay evidence and self-serving declarations does not constitute prejudicial error where the appellant cross-examined concerning the details contained in the field notes and introduced on his behalf other evidence supporting the hearsay evidence and the self-serving declarations set forth in the field notes. Rule 61, N.D.R.Civ.P.

4. Although an instruction to the jury may be insufficient or erroneous, it must be considered in connection with the remainder of the charge and if the whole charge taken together correctly advises the jury as to the law, the error, if any, is thereby cured.

5. Where the court incorrectly included in its instructions to the jury the words 'willful misconduct' as the basis of a claim for liability, before a party may be held responsible for negligence or willful misconduct, even though willful misconduct was neither alleged in the pleadings nor supported by the evidence and where the court did not give any further instruction defining willful misconduct, the inclusion of the words 'willful misconduct' did not mislead the jury as to the law applicable to the issues in the case where the remainder of the instructions correctly defined actionable negligence as the basis for appellant's claim for relief.

6. Where a quoted portion of a statute, although not applicable to the evidence, is included in the court's instructions and a jury would reasonably infer that the quoted portion of the statute was not applicable, such error would not be prejudicial.

7. Where the court instructed the jury '* * * that a violation of any of the traffic laws of the state of North Dakota, or any other law bearing thereon is evidence of negligence which the jury may consider in determining the issue of negligence', it is not error for the court to exclude from such instruction a cautionary provision concerning proximate cause when the court properly instructed the jury elsewhere on the issues of negligence, contributory negligence, and proximate cause.

8. Where the state of the evidence is such that a jury may reasonably infer therefrom its truth or falsity as to a material fact, that is, whether a red taillight was lit prior to and at the time of an accident, an instruction on circumstantial evidence is proper.

9. Specifications of error unsupported by written argument in a brief filed with the Supreme Court are deemed abandoned.

10. Where the court's instructions were in essence those which were requested, the court did not commit error in denying the specific requested instructions.

11. The trial court did not abuse its discretion in denying a new trial where the evidence was such that the verdict of the jury could have gone either way, and reasonable men could have drawn different conclusions from the evidence, and the jury's verdict is amply supported by the evidence.

12. Where a litigant desires to take advantage of irregularities on the part of the court occurring during the course of a trial, proper and timely objections and requests to the court for curative instructions may be made in order to preserve such rights. In the instant case, where neither objections nor requests for curative instructions were made, the appellant waived his rights to preserve the errors on appeal.

13. The trial court is vested with the power and duty of preserving order, of enforcing obedience to lawful orders and process, of controlling the witnesses and the conduct of counsel, and may take necessary precautions to ensure that the parties receive a fair and impartial trial.

14. Where there is nothing in the record to support the specification of error which allegedly occurred on voir dire of a juror, the provision of Rule 59(b)(3), N.D.R.Civ.P., is not applicable in the instant case.

15. The trial court has the discretionary power in refusing to have read a witness's testimony to the jury while the jury is deliberating, where the court notified counsel, requested objections, and informed counsel that, in the absence of objections, the jury's request would be denied; and especially when the appellant did not specify error as to the action on the part of the court until after the jury had reached a verdict.

Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, for plaintiff and appellant.

Letnes, Murray & Marshall, Grand Forks, for defendant and respondent.

PAULSON, Judge.

This is an appeal by the plaintiff, Allen Leake, from a judgment of dismissal of his cause of action entered in the District Court of Grand Forks County, North Dakota, and from an order of the trial court denying his motion for a new trial.

Allen Leake's complaint was predicated upon the alleged negligence of the defendant, Charlotte Hagert, in her operation of a motor vehicle on October 25, 1966, wherein she negligently and carelessly drove her automobile into the rear of the plow being towed by a tractor which Leake was operating, causing injuries to Leake and damages to his plow and tractor. Leake's complaint included allegations of damages for hospital and doctor bills; for permanent injuries to his chest and right arm; for pain and suffering; and for damages to his plow and tractor; and he prayed for a judgment against Charlotte Hagert in the sum of $27,600. Charlotte Hagert, in her answer, admitted that the collision occurred, but, as a defense, denied that the collision was proximately caused by her negligence in the operation of her motor vehicle, and she alleged that the sole and proximate cause of the collision was the negligence of the plaintiff in the maintenance and operation of his tractor and plow, upon a public highway after sunset, without proper lights, reflectors, or other warnings. Charlotte Hagert counterclaimed for damages caused by the alleged negligence of Allen Leake for permanent injuries, for pain and suffering, for hospitalization and medical expenses, and for damages to her 1966 Plymouth automobile; and she prayed for a judgment against him in the sum of $32,000.

All claims and defenses of both Allen Leake and Charlotte Hagert were submitted to a jury, which returned a verdict dismissing the complaint of Allen Leake as well as dismissing the counterclaim of Charlotte Hagert.

Allen Leake, before the case was submitted to the jury, made a motion asking the court to direct a verdict dismissing the defendant's counterclaim on the ground that Charlotte Hagert was guilty of negligence as a matter of law. She resisted this motion and also made a motion for a directed verdict, which, in turn, was resisted by Allen Leake. The trial court denied both motions. See Northern Improvement Co. v. Pembina Broadcasting Co., 153 N.W.2d 97 (N.D.1967); Rule 50(a), North Dakota Rules of Civil Procedure.

Allen Leake, after the judgment was entered, made a motion for a new trial which was denied by the trial court. The motion set froth specifications of error, which, generally, are as follows:

1. That certain errors of law occurred at the trial in that:

a. Edward Gross was permitted to give testimony which was hearsay;

b. The field notes of Edward Gross, which contained hearsay evidence and were self-serving declarations, were admitted into evidence;

c. The court erred in instructing the jury;

d. The court erred in refusing to give the plaintiff's requested instructions.

2. That the evidence was insufficient to justify the verdict and that it is against the law.

3. That there were irregularities in the proceedings of the court or abuse of the court's discretion, which prevented the plaintiff from having a fair trial.

4. That the plaintiff's cause was subject to accident or surprise in that the juror and foreman, Lewis Nelson, had had a similar accident and did not advise counsel, on questioning, of this fact and that he had no prejudice which could in any way disqualify him, and that this surprise was unknown until after the verdict of the jury, and it is to the prejudice of the plaintiff.

Allen Leake, after his original motion for a new trial was made, moved to amend his specifications of error to include an alleged error made by the trial court in not granting the jury's request to have the testimony of Scott Bosard read to them. The trial court also denied this motion.

The above are in substance the same specifications of error set forth on appeal to this court from the judgment dismissing Allen Leake's complaint and from the trial court's order denying the plaintiff's motion for a new trial. It should be mentioned that the defendant is not appealing from the judgment dismissing her counterclaim. Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968).

The record reveals that Charlotte Hagert, on cross-examination, testified in substance that she lived with her husband, Curtis Hagert, on a farm south of Emerado, North Dakota. On October 25, 1966 she decided to drive to Emerado. She left the farm during the evening and started driving north on Highway No. 3, which is a paved farm road. As she was driving north she saw a car approaching from the north and when the cars were approximately a mile apart she dimmed her headlights. Immediately after the oncoming car had passed her vehicle, she became aware that a tractor towing a...