McKenzie v. Banks

• Decision Date: 12 May 1905
• Docket Number: 14,274 - (42)
• Citation: 103 N.W. 497,94 Minn. 496
• Parties: BELLE McKENZIE v. SARAH H. BANKS
• Court: Minnesota Supreme Court

103 N.W. 497

94 Minn. 496

BELLE McKENZIE v. SARAH H. BANKS

Nos. 14,274 - (42)

Supreme Court of Minnesota

May 12, 1905

Action in the district court for St. Louis county to recover $5,050 for assault. The case was tried before Dibell, J., and a jury, which rendered a verdict in favor of plaintiff for $1,450. From an order denying a motion for judgment notwithstanding the verdict, and denying a motion for a new trial on condition that plaintiff consent to a reduction of the verdict to $650, defendant appealed. Affirmed.

SYLLABUS

Assault and Battery.

Action for assault and battery, in which the first trial resulted in a verdict for the plaintiff and a new trial granted for the reason that evidence was not sufficient to support the verdict. On the second trial the plaintiff had a verdict, and the court denied defendant's motion for judgment or for a new trial. Held:

1. The mere fact that the evidence was substantially the same on both trials did not entitle the defendant to a directed verdict on the second trial. The evidence justifies the order of the court denying conditionally the motion for a new trial.

2. Professional communications are not privileged if made in furtherance of a criminal purpose; but the court did not abuse its discretion in refusing to receive such communications in evidence, for the fact sought to be proven by them was only remotely relevant to the issue.

3. The court did not err in refusing to grant a new trial for misconduct of counsel.

Roger S. Powell and Washburn, Bailey & Mitchell, for appellant.

Alexander Marshall and Warner E. Whipple, for respondent.

OPINION

START C.J.

This is an action for the recovery of damages which the plaintiff claims to have sustained as the result of an assault and battery committed upon her by the defendant at Duluth on May 12, 1903. The complaint alleged that the plaintiff was a married woman and pregnant at the time stated, and that the defendant wrongfully assaulted and pushed her upon a large wooden box, whereby she sustained serious injuries, which resulted in miscarriage. The answer admitted that the plaintiff was a married woman, but put in issue every other allegation in the complaint. The first trial of the cause resulted in a verdict for the plaintiff for $2,050. The defendant then made a motion for judgment in her favor notwithstanding the verdict, or for a new trial. The court denied the motion for judgment, but granted the motion for a new trial upon the ground, among others, that the verdict was not justified by the evidence. The second and last trial resulted in a verdict for the plaintiff for $1,450, and the defendant made a motion for judgment notwithstanding the verdict, or for a new trial. The court made its order denying the motion for judgment and granting a new trial unless the plaintiff consented to a reduction of the verdict to $650 within ten days, but, if she so consented, the motion for a new trial should stand denied. She filed her written consent to such reduction within the time limited, and the defendant appealed from the whole order.

1. The first contention of the defendant is that the denial of the motion for judgment was error, because the evidence was substantially the same on the last trial as it was on the first one; hence at the close of the evidence on the second trial she was entitled as a matter of law, to have a verdict directed in her favor; and, further, if this be not so, then it was error for the court to refuse a new trial. The controlling question is not whether the evidence was substantially the same on the second trial as it was on the first, but it is whether the evidence on the last trial made a case for the jury. An order granting a new trial because the evidence is not sufficient to sustain the verdict is one resting largely in the discretion of the trial court, and its effect is to set aside entirely the trial, with all of its evidence and proceedings, and the case then stands precisely as if no trial had ever been had. It follows, then, that the mere fact that a new trial is ordered on the ground that the evidence is not sufficient to sustain the verdict does not entitle the party in whose favor the order was made to a directed verdict on the second trial if the evidence is substantially the same as it was on the first trial. This brings us to the question whether the evidence on the trial now under review made a case for the jury.

The primary issue on the trial was whether the defendant pushed the plaintiff upon a box, as alleged in the complaint. The plaintiff and her husband testified directly and positively that the defendant did push her as alleged. It is undisputed that she had a miscarriage some three days after the alleged assault. On the other hand, the defendant and her husband testified that she did not push or touch the plaintiff, and in this they were corroborated by some six or eight witnesses, who were in a position to see what took place, each of whom testified that defendant did not strike or push the plaintiff. This does not present a case which rests upon mere conjecture, as did the cases of Brennan Lumber Co. v. Great Northern Ry. Co., 80 Minn. 205, 83 N.W. 137, and Baxter v. Covenant Mut. Life Assn., 81 Minn. 1, 83 N.W. 459, and other...