Loveland v. Nieters
| Decision Date | 04 August 1952 |
| Docket Number | 7280,Nos. 7279,s. 7279 |
| Parties | LOVELAND v. NIETERS et al. (two cases). |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A mistrial may be granted upon the occurrence of any incident of prejudicial misconduct at the trial or when incompetent matters are brought to the attention of the jury, the damaging effect of which cannot be removed by admonition and instructions.
2. In the instant case defendants moved for a mistrial based upon a question propounded to a prospective juror on her voir dire. It is held, for reasons stated in the opinion, that the trial court did not err in denying such motion.
3. In North Dakota contributory negligence is regarded as a special and affirmative defense, which must be specially pleaded in order to be available to the defendant.
4. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the order of the trial court granting or denying such motion unless a manifest abuse of such discretion is shown. In this case it is held, for reasons stated in the opinion, that under the evidence a verdict in favor of the plaintiff E. M. Loveland for $15,000 for personal injuries, and a verdict in favor of the plaintiff Harold W. Loveland for $881.02 for damage to his automobile are not so large as to indicate passion or prejudice on the part of the jury, and that the trial court did not err in denying the motion for a new trial on the ground of
Quentin N. Burdick, Fargo, and James R. Jungroth, Jamestown, for appellants.
F. E. McCurdy and Orrin B. Lovell, Bismarck, for respondents.
This litigation arose out of a collision between two automobiles. The plaintiff, E. M. Loveland, was driving a DeSoto automobile owned by his son Harold W. Loveland, incident to business affairs in which both of said plaintiffs were interested. The defendant Thomas Ryan was driving a Ford automobile owned by the defendant Andrew Nieters. Nieters was riding in the automobile so driven by Ryan. The two automobiles met in a head-on collision at a point approximately four miles west of Regan in Burleigh County. Both automobiles were damaged and the plaintiff E. M. Loveland and the defendants Ryan and Nieters all sustained personal injuries. E. M. Loveland brought action to recover damages for personal injuries which he alleged that he had sustained by reason of the negligence of the defendants. Harold W. Loveland brought action against the defendants to recover compensation for the injury to his automobile which was driven by E. M. Loveland and alleged to have been caused by the negligence of the defendants Ryan and Nieters. The defendants Thomas Ryan and Andrew Nieters interposed individual answers denying liability and asserting counterclaims in each of the actions. The defendant Ryan in his counterclaim sought recovery for personal injuries which he alleged he sustained as a result of the negligence of E. M. Loveland in the operation of the automobile he was driving, and the defendant Nieters in his counterclaims sought to recover damages for the injury to his automobile, which was being driven by Ryan and also sought to recover damages for the personal injuries which he alleged that he had sustained as a result of the negligence of E. M. Loveland in the operation of the car he was driving. E. M. Loveland and Harold W. Loveland interposed replies to the counterclaims wherein they denied all the allegations of the counterclaims. Upon the trial of the cases it was stipulated that the two cases be consolidated for the purposes of trial with separate verdicts to be rendered in each case. The cases were so tried to a jury. The jury returned a verdict in favor of the plaintiff E. M. Loveland for $15,000 and returned a verdict in favor of the plaintiff Harold W. Loveland for the sum of $881.02. Judgments were rendered upon the verdicts. The defendants moved for a new trial in each case. The motions were denied and the defendants have appealed from the judgments and from the orders denying the motions for a new trial.
The collision occurred in the afternoon of May 3, 1950. There was nothing to interfere with the visibility of objects within the ordinary range of vision. A member of the highway patrol who came to the scene after the accident did not find it necessary to utilize the lights on his car. The plaintiff, E. M. Loveland, was driving in a westerly direction on North Dakota Highway No. 36 and the defendants Ryan and Nieters were driving in an easterly direction on such highway. The two automobiles met in a head-on collision at a place where a cut had been made through a snow drift for a distance of approximately 200 feet or more. The cut was about 10 feet wide,--wide enough so that one car could go through but not wide enough so that cars could pass each other. The banks on the sides of the cut were of varying depths ranging from one or two feet near each end and increasing to a depth of five or six feet at the middle of the cut. Loveland testified that when he saw the car occupied by the defendants approaching from the west he was nearing the west end of the cut and that the car occupied by the defendants was from 600 to 800 feet away and approaching at a rate which he judged to be about 60 miles an hour. Loveland testified that he was driving at a rate of about 20 miles an hour and that he reduced the speed almost to a standstill and that he thought 'they would turn out but they came straight and hit me head-on.' He testified that he did not travel more than 40 feet after he observed the car approaching from the west until the collision occurred. That the collision occurred a short distance from the west end of the cut. The defendant Ryan testified that he was driving at a rate of 30 miles an hour or less. That when he first saw the car driven by Loveland approaching from the east such car was 175 or 200 feet away. He testified also that it seemed to him that the car driven by Loveland was going faster than the car he was driving and when he saw the car coming he applied the brakes and 'let off the accelerator.' The plaintiff, E. M. Loveland, and the defendants were the only persons present at the time and place of the accident, although a number of persons came to the scene shortly afterwards. After the collision the two automobiles were left facing each other about 11 feet apart. Loveland was in the car which he had been driving and Ryan and Nieters were in the car in which they had been riding. All three had been seriously injured and were in a dazed condition. They were taken in an ambulance to a hospital at Bismarck for medical treatment. No good purpose would be served by any further or extended recital of the evidence. We are agreed that the state of the evidence is such that questions of negligence and proximate cause were for the jury; and there is indeed no contention to the contrary on this appeal.
In the brief of the appellants it is said that the errors assigned 'actually present three questions for this court to decide.
'First: Was it error for the District Court to have failed to instruct the jury on contributory negligence?
'Second: Was it error to refuse a mistrial, when F. E. McCurdy attorney for the plaintiff injected the Farmers Union into the case, during the empanelling of the jury?
'Third: In all event, is the verdict excessive?'
(1) The defendants moved for a mistrial. The motion was denied and error is predicated upon the court's ruling in denying such motion. The motion was made during the examination of prospective jurors on their voir dire. During the examination of Mrs. Random, the first prospective juror, on her voir dire plaintiffs' counsel asked, 'Are either you or your husband members of the Farmers Union?' Thereupon defendants' counsel stated 'At this time I move for a mistrial; it is prejudicial.' Thereupon plaintiffs' counsel stated, 'We want to know the background of these jurors so that we may properly exercise peremptory.' To which defendants' counsel replied, 'It has no basis, your Honor, and we would like to be heard on this motion in chambers, your Honor.' Thereupon the court directed that the prospective members of the jury remain in their seats and the court and the parties with their counsel retired to the chambers. Arguments were presented by the counsel for the respective parties upon the motion for a mistrial. Such arguments and proceedings were all had outside of the presence of the prospective members of the jury. After the proceedings in chambers had been concluded the parties and their respective counsel returned to the court room. The court thereupon made a statement wherein he said in part:
The court thereupon directed that the trial continue. A jury was selected, impanelled and...
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Gravseth v. Farmers Union Oil Co. of Minot
...proceedings therein would be productive of manifest injustice.' Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282, 285. See also Loveland v. Nieters, 78 N.D. 1, 54 N.W.2d 533 and State v. Tjaden, N.D., 69 N.W.2d We see no error in the trial court's denial of the motions for mistrial nor in the rul......
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