Leno v. Ehli

• Decision Date: 12 October 1983
• Docket Number: No. 10417,10417
• Citation: 339 N.W.2d 92
• Parties: Edward A. LENO, Plaintiff and Appellee, v. Martin EHLI and Mary Ehli, Defendants, and Melvin Felchle, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 92

339 N.W.2d 92

Edward A. LENO, Plaintiff and Appellee, v. Martin EHLI and Mary Ehli, Defendants and Melvin Felchle, Defendant and Appellant.

Civ. No. 10417.

Supreme Court of North Dakota.

Oct. 12, 1983.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and appellee; argued by Frederick E. Saefke, Jr.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendant and appellant; argued by Steven A. Storslee, Bismarck.

ERICKSTAD, Chief Justice.

Melvin Felchle appeals from a judgment of the District Court of Burleigh County which awarded Edward A. Leno the sum of $16,119.85 in damages, costs, and disbursements in a negligence action. We affirm.

The record reflects that Leno, the plaintiff in this case, was hospitalized from February 10 through February 25, 1982, for the treatment of salmonella food poisoning. On January 30, 1982, Leno and his wife attended a party which was put on by the Bismarck Expos, an organization of former Bismarck law enforcement personnel. The menu for the affair, which was held at the police department pistol range, included potato salad, cole slaw, baked beans, and smoked turkey.

The turkeys were purchased by the Expos, and defendant Felchle and Gordon Kern, another member of the organization, assumed the responsibility of obtaining and preparing them for consumption. Felchle acquired six frozen turkeys, each weighing between 20 and 23 pounds, from a Bismarck grocery store. He subsequently delivered them on January 16, 1982, to Frosted Foods, Inc., a meat processing business in Bismarck, where they were cured and smoked. On January 25, 1982, the turkeys were returned to Kern and Felchle. Felchle and Kern each took one of the turkeys to their respective homes to cook them for the party. The remaining four turkeys were delivered to the home of defendants Martin and Mary Ehli for preparation.

On the day of the party, Felchle and Kern went to the pistol range early in the afternoon to begin carving the turkeys. Felchle's turkey was the first carved. Soon afterward, Martin Ehli brought the four turkeys his wife had cooked and they were carved by Felchle and Kern. Kern's turkey was not yet ready for serving, so it was not carved at that time, but was placed in an oven at the pistol range.

Pieces of the Felchle turkey and Ehli turkeys were placed and mixed together in three boxes lined with tin foil. Later that afternoon, other members of the organization began to arrive with additional food. The meal was served in a buffet fashion during the evening. Approximately 50 people attended the party at one time or another. Kern's turkey was not carved until later in the evening after most of the people had left. The remaining pieces of the Felchle and Ehli turkeys were given to the Sheriff's Department after the party. The persons who cleaned up the pistol range the following morning took the Kern turkey to the Police Department.

During the ensuing days, 18 people who had attended the party, including Leno and his wife, became ill. Leno was diagnosed as suffering from an infection of salmonella enteritidis serotype Chester, a relatively rare strain of subspecies that is most frequently associated with poultry.

Samples of the food served at the party were analyzed by the North Dakota State Department of Health. The laboratory reports revealed that the samples of potato salad and cole slaw tested negative for salmonella. Samples of the remainder of the Felchle and Ehli turkeys and tin foil taken from the Sheriff's Department also tested negative for salmonella. However, samples of the Kern turkey, turkey bones, and tin foil taken from the Police Department tested positive for salmonella enteritidis serotype Chester.

In a complaint dated June 4, 1982, Leno brought suit against Felchle and the Ehlis alleging in part that he had eaten turkey prepared by the defendants and that his injuries were the "direct and proximate result of the defendants' negligence in serving ... food which defendants knew, or in the exercise of reasonable care should have known, was not wholesome and fit for human consumption." The case was tried to the court without a jury on January 20 and 21, 1983.

In a memorandum decision dated January 25, 1983, the trial court concluded that neither of the Ehlis were responsible for Leno's illness, but found Felchle solely responsible. The court noted that although the fact that Kern's turkey was the only turkey that tested positive for salmonella might indicate that it was the only contaminated turkey, "the evidence is plainly to the contrary, since ... most of the people who contracted salmonellosis, including the plaintiff and his wife, did not eat from the Kern turkey but from the other turkeys."

The court then proceeded to examine the turkey preparation activities of the defendants. The court found no negligence in the preparation activities of the Ehlis or Kern. However, the court determined that Felchle had failed to properly prepare his turkey, and as a result, "[t]he existence of poisonous numbers of salmonella at the time the food was eaten was ... predictable."

Judgment was entered on January 31, 1983, and Felchle appeals. Felchle's major contention is that the evidence is insufficient to sustain the judgment. More specifically, he argues that the trial court erred in denying his motion for dismissal at the close of the plaintiff's case pursuant to Rule 41(b) of the North Dakota Rules of Civil Procedure, and in the alternative, that the findings of the trial court are clearly erroneous under Rule 52(a), N.D.R.Civ.P.

Felchle contends that the trial court, in arriving at its final decision, "relied heavily" on evidence introduced by the plaintiff after it had denied his motion for dismissal. The determination of this issue requires that we examine the events which occurred during the trial.

After the plaintiff rested his case at the end of the day on January 20, 1983, Felchle and the Ehlis moved to dismiss. Following arguments by counsel, the trial court denied the motions. The court then recessed until the following morning for the presentation of defense testimony. On January 21, 1983, Felchle's counsel and counsel for the Ehlis told the trial court that after reconsidering they had decided not to present any defense testimony and rested. Plaintiff's counsel, who had subpoenaed rebuttal witness, then moved to reopen the case for the presentation of additional testimony "for clarification of the record." The trial court heard arguments on the motion and then allowed the plaintiff to reopen his case. Following the plaintiff's presentation of additional evidence, the defendants once again rested without presenting any evidence and renewed their motions for dismissal, which were denied.

Felchle argues that our Court is limited to considering only the evidence submitted by the plaintiff at the time Felchle's first Rule 41(b) motion to dismiss was denied, which occurred before the plaintiff was allowed to reopen his case. We believe Felchle's argument would more appropriately be that the trial court abused its discretion in allowing the plaintiff to reopen his case because once the trial court granted the plaintiff's motion to reopen and present additional evidence in his case in chief, the propriety of the trial court's ruling on the first Rule 41(b) motion was rendered moot.

It has been held that a trial court is not prohibited from reopening, but in its discretion may reopen a case after motions for dismissal in a bench trial, or for a directed verdict in a jury trial, have been either sustained or denied. See, e.g., McCullough v. Leftwich, 232 Ark. 99, 102, 334 S.W.2d 707, 709 (1960); Community Education Center, Inc. v. Cohen, 151 Ga.App. 77, 78, 258 S.E.2d 742, 743 (1979); Serijanian v. Associated Material and Supply Co., 7 Mich.App. 275, 279-282, 151 N.W.2d 345, 347-348 (1967); Nelson v. Home Ins. Co., 353 So.2d 763, 765-766 (Miss.1977); Moss v. Greyhound Lines, Inc., 607 S.W.2d 192, 195-196 (Mo.App.1980); Conley v. Dee, 246 S.W.2d 385, 387 (Mo.App.1952). Our Court has stated on several occasions that trial courts are vested with broad discretion in permitting or refusing to permit a party, after having rested, to reopen the case for the purpose of introducing additional proof, and thus the trial court's decision will not be reversed on appeal absent a showing that such discretion was clearly abused. Foerster v. Fischbach-Moore, Inc., 178 N.W.2d 258, 264 (N.D.1970); Kuntz v. Stelmachuk, 136 N.W.2d 810, 818 (N.D.1965); Liberty National Bank of Dickinson v. Daly, 96 N.W.2d 897, 899 (N.D.1959); Fried v. Olsen, 22 N.D. 381, 385, 133 N.W. 1041, 1043 (1911).

Felchle has neither contended, nor shown that he was prejudiced in any way as a result of the trial court's decision to reopen. Upon the record before us, the trial court did not abuse its discretion in allowing the plaintiff to reopen his case.

We next turn to Felchle's major contention that the evidence was insufficient to sustain the judgment. At the outset, a brief discussion of the general principles governing the burden of proof in negligence actions is appropriate.

We have defined "actionable negligence" as "the existence of a duty or obligation on the part of one to protect another from injury, the failure to discharge that duty, and the resulting injury to the other proximately caused by the breach of duty." Carlson Homes, Inc. v. Messmer, 307 N.W.2d 564, 566 (N.D.1981). See also, Brauer v. James J. Igoe & Sons Construction, Inc., 186 N.W.2d 459, 468 (N.D.1971). In a negligence action, the plaintiff has the burden of proving by a preponderance of the evidence that the defendant was responsible for some negligent act or omission, and that such act or omission was the proximate cause of the plaintiff's injuries and damages. Bismarck Baptist Church v. Wiedemann Indus., Inc., 201 N.W.2d 434, 440 (N.D.1972).

Furthermore, it is well settled that the mere fact an injury has occurred, without more,...