Matt v. Nomland, 6616.
| Decision Date | 17 November 1939 |
| Docket Number | No. 6616.,6616. |
| Citation | 288 N.W. 558,69 N.D. 552 |
| Parties | MATT v. NOMLAND et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where at the close of the plaintiff's case the trial court grants a motion to dismiss over the objection of the plaintiff, such dismissal is equivalent to an involuntary non-suit, and if erroneous, may be made the basis of a motion for a new trial.
2. Error cannot be predicated on the refusal of the trial court to permit a witness to volunteer irresponsive testimony, even though an objection is not made upon the ground of irresponsiveness.
3. Proposed newly discovered evidence examined and is held not to present a sufficient showing to warrant the granting of a new trial.
Appeal from District Court, Grand Forks County; M. J. Englert, Judge.
Action by Philip Matt against Truman Nomland and others, and Andrew Nomland, C. A. Sorenson, and Frank W. Brown, doing business under the name of Nomland Motor Company, to recover damages for the death of plaintiff's wife when struck by an automobile driven by Truman Nomland. From an order granting the plaintiff a new trial, Andrew Nomland, C. A. Sorenson, and Frank W. Brown, doing business under the name of the Nomland Motor Company, appeal.
Order reversed.
Chas. A. Lyche and Fred E. Harris, both of Grand Forks, for plaintiff and respondent.
Carroll E. Day, of Grand Forks, for defendants and appellants.
This is an action for damages brought by the surviving husband of Eva Matt, who died as a result of being struck by an automobile driven by the defendant, Truman Nomland. The case came on for trial in the district court of Grand Forks County on June 16, 1938. At the close of the plaintiff's testimony, counsel for Andrew Nomland, C. A. Sorenson and Frank W. Brown, co-partners, moved for a dismissal of the case against these co-partners upon the ground that the plaintiff had failed to prove a case against them or in any way connect them with the accident which resulted in the death of Eva Matt. The court granted the motion. The trial continued as to the defendant, Truman Nomland, and resulted in a verdict against him upon which judgment was duly entered on August 13, 1938. On June 29, 1938, a judgment was entered in the district court dismissing the action as to the defendants, Andrew Nomland, C. A. Sorenson, and Frank W. Brown, co-partners, doing business under the name of the Nomland Motor Company. This judgment contains no recital as to whether the dismissal is with or without prejudice. The plaintiff made a motion to vacate the judgment of dismissal and for a new trial as against the defendants constituting the co-partnership, which motion came on for hearing on the 28th day of December 1938. A new trial was sought on the grounds of newly discovered evidence and errors of law occurring at the trial. In matters pertaining to this motion the plaintiff was represented by a different counsel than appeared for him at the trial. On the 27th day of January 1939, the court entered its order granting the new trial. In his memorandum decision, filed as a part of the judgment roll, the trial court says, in part,
The defendants who constitute the co-partnership appeal from the order granting the new trial. Truman Nomland does not appeal from the judgment against him.
“4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial. * * *
7. Error in law occurring at the trial and excepted to by the party making the application.”
Section 7660, supra, contains the only grounds upon which a motion for a new trial may be based under our statutes.
Dubs v. Northern P. R. Co., 47 N.D. 210, 181 N.W. 606, 607.
In the motion for new trial three grounds are alleged, namely, that the court erred in dismissing the action as to the defendants, Andrew Nomland, C. A. Sorenson, and Frank W. Brown; second, that the court erred in refusing to allow certain testimony sought to be elicited by the plaintiff; third, newly discovered evidence.
[1] If an order granting a new trial is good on any of the grounds upon which the motion is based, the order must be sustained. We will, therefore, consider the three grounds upon which the motion in this case was made. The first ground to be considered is that based upon the dismissal of plaintiff's action by the trial court at the close of plaintiff's testimony. Section 7597, Compiled Laws N.D.1913, prescribes when civil actions may be dismissed without a final determination of the merits. The action of the trial court was, undoubtedly, taken under this section. Under subdivision 3 thereof, the court may dismiss an action “when upon the trial and before the final submission of the case, the plaintiff abandons it, or fails to substantiate or establish his claim, or cause of action, or right to recover.” Schoening v. Smith, 59 N.D. 592, 231 N.W. 278.
The dismissal of this case was made upon motion of the defendant and over the objection of the plaintiff. Where at the close of plaintiff's case the trial court grants a motion to dismiss over plaintiff's objection, the granting of such motion is equivalent to an involuntary non-suit. 6 Encyc. Pleading and Practice, 953. Such a dismissal if erroneous, may be made the basis of a motion for new trial. Smith v. Hyer, 11 Cal.App. 597, 105 P. 787;McClurken v. Ralph's Grocery Co., 130 Cal.App. 529, 20 P.2d 66. An erroneous ruling on a motion for non-suit is an error at law. Hayne, New Trial & Appeal, Sec. 112; Dunham v. Byrnes, 36 Minn. 106, 30 N.W. 402. In this case the trial court granted the motion to dismiss. Later he granted a new trial upon a motion which embodied, among other grounds, the erroneous granting of the motion to dismiss. If the order dismissing the case was erroneous, it was proper for the court to grant a new trial on that ground. On the other hand if the dismissal was proper no error was committed and a new trial could not be granted on the dismissal.
[2] This action arises from the fatal injuries received by Eva Matt as the result of being struck by an automobile driven by the defendant, Truman Nomland. This automobile was the property of the defendant co-partners. The case is not one to which the family car doctrine can apply. The members of the co-partnership cannot be held liable unless agency in some form can be shown to exist between the driver of the car and the co-partnership. Evidence adduced at the trial wholly fails to show any agency. On the other hand it affirmatively shows that Truman Nomland, at the time of the accident, was driving the car upon his own volition, and on his own business without authority to do so from the members of the co-partnership or their agents. The facts proved at the trial wholly fail to show any liability on the part of the members of the co-partnership. The court committed no error in granting the motion to dismiss and the dismissal furnished no ground upon which the court might later grant a new trial.
[3] The second error at law upon which the motion for new trial was based and the one upon which the trial court lays considerable stress in his memorandum opinion, is predicated upon the action of the court in sustaining the objection to certain testimony of the witness, Gordon Longmuir. An examination of the transcript discloses that this witness was in the front of the Nomland Garage shortly after the accident and saw Truman Nomland come in and engage in conversation with a Mr. Brown and one of the partners. Longmuir was asked this question, “After you were in there for awhile did you observe anything unusual?” After answering the question as to what he observed, the witness started to repeat the conversation which ...
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...of the notice of appeal. See also earlier cases, such as Mousel v. Widicker, 69 N.W.2d 783, 790 (N.D.1955), and Matt v. Nomland, 69 N.D. 552, 288 N.W. 558, 561 (1939). We noted concern in Frederick v. Kubisiak, 317 N.W.2d 120 (N.D.1982). That was a case tried to the court and, as in this ca......
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