Magnusson v. Linwell

• Decision Date: 20 April 1900
• Court: North Dakota Supreme Court

82 N.W. 746

9 N.D. 154

AUGUST MAGNUSSON
v.
M. V. LINWELL

Supreme Court of North Dakota

April 20, 1900

Appeal from District Court, Grand Forks County; Fisk, J.

Action by August Magnusson against M. V. Linwell. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bosard & Bosard for appellant.

When an appellate court conscientiously and irresistibly reaches the conclusion that the verdict is against truth and the undoubted weight of evidence, and could only have been reached through passion or prejudice or a failure to exercise a sound and unbiased judgment on the part of the jury, such court should unhesitatingly reverse the ruling of the trial court refusing to vacate such verdict. Fuller v. N. P. Ry. Co., 2 N.D. 220, 50 N.W. 359; Reynolds v. Lambert, 69 Ill. 495; Branson v. Carothers, 49 Cal. 374; Sullivan v. Cloud Co., 47 P. 165.

B. G. Skulason, for respondent.

The rule is well established that a verdict upon conflicting evidence will not be disturbed on appeal. Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Finney v. N. P. Ry. Co., 3 Dak. 270, 16 N.W. 500; Edwards v. Fargo & S.W. Ry. Co., 4 Dak. 549, 33 N.W. 100; Pielke v. C. M. & St. P. Ry. Co., 5 Dak. 444, 41 N.W. 669; Taylor v. Jones, 3 N.D. 235, 55 N.W. 593; Black v. Walker, 7 N.D. 414, 75 N.W. 787; Bishop v. C. M. & St. P. Ry. Co., 4 Dak. 536, 62 N.W. 605; Becker v. Duncan, 8 N.D. 600, 80 N.W. 762; Erickson v. Sophy, 10 S.D. 71, 71 N.W. 758; Meyer v. Davenport Elev. Co., 80 N.W. 189.

OPINION [82 N.W. 747]

[9 N.D. 155] WALLIN, J.

The plaintiff is seeking by this action to recover damages caused, as plaintiff alleges, by an assault and battery committed by the defendant upon the person of the plaintiff on February 14, 1898. The litigation in the District Court resulted in a verdict for the plaintiff in the sum of $ 200, for which sum judgment was entered, with costs. Defendant has appealed to this court from such judgment.

An application for a new trial was made to the trial court, and in disposing of the motion that court used the following language: "It is ordered that said motion be, and the same is hereby, denied. The only ground urged in the motion why a new trial should be granted is the alleged insufficiency of the evidence to justify the verdict of the jury. The record discloses that the plaintiff testified positively to the assault, and there is some evidence tending to corroborate his testimony; while the defendant and his witnesses testified to facts tending to show that no assault was committed. There being a substantial conflict in the testimony, I cannot, as a matter of law, see that the verdict of the jury was against the weight of evidence, especially in view of the fact that two of the defendant's witnesses were associated with him in the banking business, and would be...