Marr v. Nagel, 5744

• Decision Date: 28 December 1954
• Docket Number: No. 5744,5744
• Parties: Robert M. MARR, Plaintiff-Appellee, v. Eugene NAGEL, Defendant-Appellant, Cross-Appellee, Frank Cohn, Defendant-Appellee. Joseph L. TAPIA, Administrator of the Estate of John N. Tapia, Jr., deceased; and the Estate of John N. Tapia, Jr., deceased, Defendants, Cross-Claimants, v. NAGEL, and Cross-Appellants, J. V. Russell and Opal Russell, his wife, Intervenors, Cross-Appellants.
• Court: New Mexico Supreme Court

Page 561

278 P.2d 561

59 N.M. 21

Robert M. MARR, Plaintiff-Appellee, v. Eugene NAGEL, Defendant-Appellant, Cross-Appellee, Frank Cohn, Defendant-Appellee.

Joseph L. TAPIA, Administrator of the Estate of John N.

Tapia, Jr., deceased; and the Estate of John N.

Tapia, Jr., deceased, Defendants, Cross-Claimants, v. NAGEL, and Cross-Appellants, J. V. Russell and Opal Russell, his wife, Intervenors,

Cross-Appellants.

No. 5744.

Supreme Court of New Mexico.

Dec. 28, 1954.

Lorenzo A. Chavez, Benigno C. Hernandez, Jr., Albuquerque, for Robert M. marr.

Iden & Johnson, Albuquerque, for Eugene Nagel.

Simms & Modrall, George T. Harris, Jr., Albuquerque, for Frank Cohn.

Vance Mauney, Albuquerque, for Joseph L. Tapia, administrator, and estate of John N. Tapia, Jr., deceased.

Joseph L. Smith, Arturo G. Ortega, Albuquerque, for intervenors Russell.

FRED J. FEDERICI, District Judge.

This case has heretofore been ruled upon by this Court on motions to dismiss and strike briefs in Marr v. Nagel, 58 N.M. 479, 272 P.2d 681, and in order not to unduly prolong this opinion reference is made to that case for a general statement of the facts.

In the instant case, which is the appeal proper, the first assignment of error is stated as follows:

'The Court erred in granting Frank Cohn's motion for judgment notwithstanding the verdict when the said defendant Frank Cohn failed to move for a directed verdict at the close of all the evidence.'

Rule 50(b) of the District Court Rules of Civil Procedure provides as follows:

'(b) Reservation Of Decision On Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party, within ten days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict has been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict has been directed or may order a new trial.'

A review of pertinent portions of the record becomes necessary. At the close of plaintiff Marr's and intervenors Russell's case in chief, defendant Cohn's counsel made the following motion:

'Mr. Harris: May it please your Honor, the Defendant Frank Cohn, at this time, Plaintiff and Intervenor having rested, respectfully moves that the Complaint in Intervention and the Plaintiff's Complaint be dismissed, as against the Defendant Frank Cohn, on the ground that Plaintiff and Intervenors have failed to establish any negligence an the part of this Defendant, as a matter of law, and further, that even though negligence might have been established in one or more respects, that as a matter of law, there is no causal connection between the negligence so established and the proximate--or the result of the accident. And that reasonable minds could not differ as to the fact that there was no negligence on the part of Mr. Cohn, which resulted in injuries to Mr. Marr, or to Mrs. Russell, the Intervenor.

'The Court: Any other motions?

'Mr. Mauney: No motions.

'The Court: I am going to reserve ruling on that.'

It will be noted that the court reserved ruling on the motion at that time.

At the close of defendant Nagel's case, Cohn's counsel renewed the motion, and in this connection the transcript shows as follows:

'Mr. Harris: May we make, again, the motion made at the close of Plaintiff's case?

'The Court: Proceed.'

Here again the court apparently acknowledged the motion but made no ruling threon and directed counsel to proceed, and counsel proceeded then to put on testimony on behalf of his client Cohn. After Cohn testified, and at the close of all of the evidence the trial judge, after a five minute recess for the jury, during which the transcript does not fully disclose colloquy that may have occurred between court and counsel, the transcript shows as follows:

'The Court: I am going to overrule your motion, Mr. Harris,'

the ruling being directed to Mr. Harris as attorney for Cohn. It seems quite obvious from the record what motion was referred to by the court, for no other pertinent motions were made by counsel for Cohn. Thereafter the jury returned a verdict against Cohn, whereupon Cohn's attorney timely filed a written motion for judgment notwithstanding verdict, or in the alternative for an order granting a new trial. The trial court granted that portion of Cohn's motion seeking a judgment notwithstanding verdict, and entered a written order entitled 'Order for Judgment of Dismissal of Defendant Frank Cohn Notwithstanding Special Verdict,' in which order appear the following pertinent recitals:

'the Defendant Frank Cohn having moved the Court for a directed verdict at the close of Plaintiff's case, and having renewed said motion at the close of the entire case after each of the Defendants had rested, the Court having then and there overruled said motion; and the jury having returned its special verdict in favor of the Plaintiff and Intervenor Opal Russell and against the Defendant Frank Cohn, and, thereafter, Defendant Frank Cohn having duly moved for a judgment notwithstanding the verdict or, in the alternative, for an order granting a new trial upon the grounds stated in said motion on file herein, and the Court having heard the arguments of counsel on said motion and being fully advised in the premises, having found that Defendant Frank Cohn was and is entitled to a judgment notwithstanding the verdict, it is hereby Ordered, etc.' (Emphasis ours.)

Not only does the record indicate that the court advised counsel for Cohn at the close of all the evidence that he was overruling his motion, but the recitals in the order set out above unequivocally state that the motion made at the close of plaintiff's case was renewed at the close of the entire case; consequently, if the law is (as contended by several parties in this court and which we do not have to here decide) that under Rule 50(b) supra, a motion for judgment notwithstanding verdict cannot be urged unless the movant had previously moved for dismissal or for directed verdict at the close of all the evidence and before submission to the jury, then the objection urged in this court has been met, for we find fairly from the reporter's transcript, and from the dignity of the recitals in the order entered by the court on the matter that the motion for dismissal or directed verdict was renewed, and in any event ruled upon by the court adversely to the movant, at the close of all of the evidence. Following the verdict of the jury, the trial court granted the motion for judgment notwithstanding verdict within his authority so to do in contemplation of the provisions of Rule 50(b) supra, declaring that when a motion for a directed verdict is made at the close of all of the evidence and is denied, or for any reason is not granted, the trial court may determine the legal questions raised by the motion after submission of the action to the jury.

The aforesaid first assignment of error is therefore not well taken.

The second assignment of error is set out in the following language:

'The Court erred in granting defendant Frank Cohn's motion for judgment notwithstanding the verdict for the reason that there was evidence and inference from which the jury could arrive at its verdict.'

The trial judge in granting the motion for judgment notwithstanding verdict apparently concluded as a matter of law that either the defendant Cohn was not negligent or that if he was negligent in overtaking and passing the Marr car that this negligence, if any, was not the proximate cause or a contributing proximate cause of the personal injuries sustained by plaintiff Marr and his passenger, intervenor Russell, as a result of the Marr car being struck by the Nagel truck. Further, in sustaining the motion for judgment notwithstanding verdict, the trial judge apparently also concluded as a matter of law that regardless of Cohn's actions in the driving of his car at the time of these collisions that there was no duty on his part to foresee that the Nagel truck was going to collide with the Tapia car up ahead of him, resulting in the Cohn car being subsequently side-swiped by the free-wheeling dual wheels of the Nagel truck, to be still followed by a careening of the Nagel truck on to the Marr car which was behind the Cohn car.

The trial judge was apparently much disturbed on this phase of the case as early as at the close of plaintiff Marr's and intervenor Russell's case, at which time counsel for defendant Cohn moved the court for a dismissal as to him. That the court was disturbed is borne out by the comments of the trial judge which follow:

'The Court: Yes, sir, asked Mr. Marr, I didn't see a thing. I am more accurate than I appear to be, up here. I watched each party, what they have proved, and what they haven't, and each Defendant. It is no reflection on you, on the thing, except that it was the first established theory. There was some evidence, this morning, about some repeated sharp passing, beforehand, but I don't even think that was permissible. I don't care what he did before the site of the accident. He passed, all right, he passed around the car, without any danger. He--if he cut in, I don't know how he did, but he...