Malmstad v. Mchenry Telephone Company, a Corporation

• Decision Date: 11 November 1914
• Citation: 149 N.W. 690,29 N.D. 21
• Court: North Dakota Supreme Court

149 N.W. 690

29 N.D. 21

JOHN MALMSTAD v. MCHENRY TELEPHONE COMPANY, a Corporation

Supreme Court of North Dakota

November 11, 1914

Appeal from the District Court of Foster County. Coffey, J. Action to recover damages for removal of lateral support. Plaintiff appeals from order setting aside the verdict and granting a new trial.

Affirmed.

Lee Combs and L. S. B. Ritchie, for appellant.

In a motion for a new trial upon the ground of newly discovered evidence, there must be facts sufficient to enable the supreme court to see that the trial judge had legal evidence before him showing the existence of such ground. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419.

Where the affidavits upon such a motion show and pertain solely to matters of a negative or merely cumulative nature, they are not ground for a new trial. Boos v. AEtna Ins. Co. 22 N.D. 11, 132 N.W. 222.

W. O Lowden and S.E. Ellsworth, for respondent.

The motion for a new trial was made and based upon several grounds--insufficiency of the evidence, newly discovered evidence, and error in law occurring at the trial. The order of the court granting a new trial was general, without specifying any ground. Therefore such order will not be disturbed if there is any tenable ground for its support. Citizens' Bank v. Schultz, 21 N.D. 551, 132 N.W 134; Gooler v. Eidsness, 18 N.D. 338, 121 N.W. 83; Davis v. Jacobson, 13 N.D. 430, 101 N.W. 314.

If any of the grounds urged for a new trial are tenable and supported, the order will not be disturbed. Olson v Riddle, 22 N.D. 144, 132 N.W. 655; White v. Barling, 36 Mont. 413, 93 P. 348.

The application for a new trial upon the ground of insufficiency of the evidence is addressed to the sound discretion of the trial court, and the order on same will not be disturbed unless it appears that such discretion has been abused. Casey v. First Bank, 20 N.D. 211, 126 N.W. 1011; Flath v. Casselman, 10 N.D. 419, 87 N.W. 988 Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Libby v. Barry, 15 N.D. 286, 107 N.W. 972; White v. Barling, 36 Mont. 413, 93 P. 348; Ball v. American Transfer Co. 21 Cal.App. 437, 132 P. 82; Cutten v. Pearsall, 146 Cal. 690, 81 P. 25; Re Martin, 113 Cal. 479, 45 P. 813; Cunningham v. Atterbury, 163 Mo.App. 594, 147 S.W. 495; Dobbins v. Graer, 50 Colo. 10, 114 P. 303; Gross Coal Co. v. Milwaukee, 148 Wis. 72, 134 N.W. 139; Bailey v. McCormick, 132 Wis. 498, 112 N.W. 457.

The supreme court will not weight conflicting evidence, or disturb the order of the trial court in granting a new trial. Casey v. First Bank, 20 N.D. 211, 126 N.W. 1011; McGraw v. Manhattan Co. 66 Wash. 388, 119 P. 822; McCarthy v. Morris, 17 Cal.App. 723, 121 P. 696; 14 Enc. Pl. & Pr. 930, 955, 960, 978, 982 note 3, 985 and cases in note 1, 987 and cases in note 1; Taylor v. Scherpe & K. Architectural Co. 47 Mo.App. 257; Watson v. St. Paul City R. Co. 42 Minn. 46, 43 N.W. 904; Sunberg v. Babcock, 66 Iowa 515, 24 N.W. 19; Hayne, New Trials, p. 250; Distad v. Shanklin, 11 S.D. 1, 75 N.W. 205; Patch v. Northern P. R. Co. 5 N.D. 55, 63 N.W. 207; Hicks v. Stone, 13 Minn. 434, Gil. 398; Cowley v. Davidson, 13 Minn. 92, Gil. 86; Morrison v. Mendenhall, 18 Minn. 238, Gil. 212; Pengilly v. J. I. Case Threshing Mach. Co. 11 N.D. 249, 91 N.W. 63, 12 Am. Neg. Rep. 619; McCann v. McCann, 20 Cal.App. 567, 129 P. 965; Maynard v. Des Moines, 159 Iowa 126, 140 N.W. 208; Christie Lithograph & Printing Co. v. American Bonding Co. 119 Minn. 11, 137 N.W. 188; Peterson v. Chicago G. W. R. Co. 106 Minn. 245, 118 N.W. 1016; Stebbins v. Martin, 121 Minn. 154, 140 N.W. 1029.

A new trial will sometimes be granted on a showing of newly discovered evidence which is cumulative, especially where it appears that such new evidence is of a character so convincing and controlling that it will or ought to change the result on another trial. Oberlander v. Fixen, 129 Cal. 690, 62 P. 254; Germinder v. Machinery Mut. Ins. Asso. 120 Iowa 614, 94 N.W. 1108.

Where interest is not recoverable, and the court instructs the jury to award interest if it finds a verdict for plaintiff, such instruction is reversible error. Rev. Codes 1905, § 6560; Johnson v. Northern P. R. Co. 1 N.D. 354, 48 N.W. 227; Burger v. Sinclair, 24 N.D. 624, 140 N.W. 246; Lindblom v. Sonstelie, 10 N.D. 140, 86 N.W. 357.

OPINION

BRUCE, J.

This is an appeal from an order setting aside a verdict and granting a new trial in an action to recover damages for the negligent removal of the lateral support of a building. It would serve no useful purpose to review the evidence. The theory of the plaintiff is that the defendant negligently made the excavation in question, and, by not giving the plaintiff notice of the proposed work, made it impossible for him to protect his building. The theory of the defendant, on the other hand, is that, though no notice was given, a wall was constructed against the adjoining bank as the work progressed, which gave it all the support that was necessary, and that the real fact was that the building of plaintiff was itself improperly constructed and without any foundation, and that the injuries complained of were occasioned by the defects in the building itself, and were not in any way caused by the negligence of the defendant, or necessarily by the excavation at all. The excavation seems to have been dug in November, and plaintiff himself testifies that there was no sliding of the building until the frost went out in the spring, and, though he testifies to cracks before that time, the photographs which he introduces in evidence were not taken until the spring, and his testimony as to the time when the injuries became apparent is quite confusing.

There is, on the other hand, quite convincing evidence of the poor construction of the building, and of an inferior grade of materials which were used therein. This evidence is also sought to be corroborated by after discovered evidence which is quite convincing, and, though no diligence is shown in the attempt to obtain it, we are not prepared to say that the court in passing upon the motion for a new trial was not justified in considering it, and that the evidence is, as claimed by the plaintiff, merely cumulative. It is, in fact, corroborative rather than cumulative. It is, at any rate, quite probable that this evidence would have a material influence in determining the result upon the new trial, and in such cases the discretion of the trial court in granting a new trial on cumulative evidence is rarely, if ever, interfered with upon appeal. Oberlander v. Fixen, 129 Cal. 690, 62 P. 254; Germinder v. Machinery Mut. Ins. Asso. 120 Iowa 614, 94 N.W. 1108. It is to be remembered that we are here dealing with the discretion of the trial court, and that it is one thing to say that a court has not erred in refusing to consider such evidence, and quite another thing to say that it has abused its discretion in doing so.

The proof of negligence in the case, indeed, is far from satisfactory. We cannot ourselves but be in doubt whether the course pursued by the defendants in making the excavation and in building the supporting wall was not all that could be required or expected, and that the wall was not as serviceable as any protection that the plaintiff himself could have adopted. The only witness of plaintiff upon this specific question is the witness Anderson. Although he testified that the usual procedure in such cases was "to build a false structure and remove it after the wall as you go along," he also testified that "there might be more than one way," and that he "did not say that the only proper way to construct a wall in the vicinity of a cement block was to put up false work. Whether a false work is required or not depends upon the soil or the time of the year. The purpose of that retaining or false wall is to keep it from caving. If the earth does not cave, then you do not need the false work. If, for instance, south of the wall I was about to construct, there existed a cellar 10 by 15 feet in length, running parallel with the wall, 7 feet deep, dug out of the earth, and plastered on the earth and remaining in good condition for years, with no signs of cracks or scaling of the walls, I would say the chances are a wall of that character, in the month of November, would not need a false work to support it. The chances are it was a reasonably compact wall. In order to determine if it was necessary to construct a false wall after starting the excavation, a man must use his judgment as he went along. I was not asked the question whether the making of this wall without false work was negligence. I did not see it built. I don't say that it was negligence. I do not want the jury to understand I did. I do not want the jury to understand that the failure to use false work caused this injury. I did not see the building built, and if I had told them that, it would only have been my opinion. I did not examine the foundation inside under the floor. I do not know how the floor joists of the building are supported. I saw that the wall was cracked. I cannot tell whether the wall slipped or slid. I saw that it was out of plumb. It had settled, I suppose. I do not know what else could cause it."

It may be conceded that failure to give the notice which is required by the statute is evidence of negligence. Schultz v Byers, 53 N.J.L. 442, 13 L.R.A. 569, 26 Am. St. Rep. 435, 22 A. 514. The purpose of the statute, however, (Rev. Codes 1905, § 4811), could only have been to enable the adjacent landowner to take steps for his protection if his neighbor failed to do so, and the question, after all, is merely whether or not the wall that was built did not afford all of the protection that the "false work," or any other reasonable method of protection, could have given, and whether the...