Menard v. Montana Cent. Ry. Co.
| Decision Date | 27 March 1899 |
| Parties | MENARD v. MONTANA CENT. RY. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; Henry N. Blake Judge.
Action by Edward Menard against the Montana Central Railway Company. A verdict was directed for plaintiff, and judgment entered thereon, and from an order granting a new trial plaintiff appeals. Affirmed.
T. J Walsh, for appellant.
A. J Shores, for respondent.
This was an action to recover $250 as damages for the killing by defendant in 1895 and 1896 of three cows and one horse, the property of plaintiff. The complaint is in two counts, stated as two causes of action. In the first count the allegations are to the effect that the defendant, a domestic railway corporation, so negligently ran and managed its trains that they ran over the animals, which had casually strayed upon the track. The second cause of action is stated to consist of the matter alleged in the first, together with the further averments that the "defendant did not make or maintain a good and sufficient, or any, fence on either side of its track; that the said cattle were killed by its engines and cars upon its line of road which passed through and along the property thereof; that $250 is the fair market price of the same; and that the killing occurred without the fault or negligence of plaintiff." Defendant, in its answer, admitted its corporate character, but denied the other allegations of the complaint, and pleaded the bar of the statute of limitations. At the trial the evidence tended to prove that all the animals were killed on defendant's track, and by its engines, and that defendant did not maintain a fence at the points where the killing took place. Two of the animals were killed in 1895, valued at $185, the testimony showed that they were found dead or dying near the track, and that the employes of defendant, acting under its instructions, and as part of their regular duty, skinned the animals, and took the hides to the nearest station. As to the cows killed in 1896, there was testimony given by plaintiff that the trains which killed them made no stop, paid no attention to them, and that the whistle was not blown, although the animals could have been seen by those on the engine for the distance of a mile, at least, before they were struck. It was shown that defendant became in 1886, under the provisions of the statutes then in force, and since has been such corporation. Defendant offered no evidence. On plaintiff's motion, the court peremptorily directed the jury to find for plaintiff in the sum of $250, the value of the animals; defendant excepting. A verdict having been returned in accordance with the instruction of the court, defendant moved for a new trial for errors in law, which was granted, and from that order plaintiff appeals.
1. It is earnestly asserted by the plaintiff that the district court granted the motion for a new trial upon the sole ground that the statute of limitations barred recovery for the animals killed in 1895, and that, therefore, this court is restricted to an examination of the soundness of the reason given for making the order. But the premise upon which the contention rests is unsound. The record proper does not disclose that the order was made for the reason stated by plaintiff. The motion was made upon the ground of errors in law committed at the trial, and excepted to by defendant. The order nisi for a new trial is that "the motion for a new trial be granted, unless the plaintiff shall within ten days *** consent to release all of said verdict excepting the sum of $65, and that, upon the filing of such consent in writing by the plaintiff, said motion be overruled, and the judgment hereinbefore entered be modified accordingly"; and the order appealed from, after reciting that plaintiff declined to release any part of the verdict and judgment, merely sustains the motion for a new trial. In making the conditional order, the court delivered an opinion,--a copy of which is in the transcript,--to the effect that the bar of the statute intervened as to the animals killed in 1895; but, however great an assistance it might be to this court, the opinion is not part of the record, and cannot be resorted to for the purpose of adding to the order sought to be reviewed. Under section 438 of the first division of the Compiled Statutes of 1887, such an opinion, when filed, was required to be made part of the transcript, to aid the court in the determination of the issues (Fant v. Tandy, 7 Mont. 443, 17 P. 560), but we can find no such provision in the Code of Civil Procedure of 1895. Conceding, however, that the premise is true, and that the record shows the new trial to have been granted upon the sole ground--now abandoned by defendant--that the right to recover for the cattle killed in 1895 was barred by the statute, the conclusion drawn therefrom by plaintiff is unwarranted; for this court must examine into all the errors of law specified, and, if it appear from the whole record that the new trial was not improperly granted, the order will be affirmed. The true rule, with the reasons underlying it, may, we think, be thus stated: The losing party has the right to ask for a new trial upon any one or more of the grounds recognized by the statute. It is the duty of the court to grant a new trial whenever it shall appear that statutory grounds exist therefor. The statement or bill of exceptions resembles, in its nature, a complaint, and this is attacked by the specifications very much as the complaint is assailed by a demurrer. If, for example, the demurrer be for insufficiency, for defect of necessary parties, and for want of jurisdiction over the subject-matter, and the court sustains it upon the single ground that there is a defect of parties, and judgment is thereupon entered for defendant, whereas the complaint is bad for either or both of the other reasons, but is not obnoxious to the objection upon which the court based its decision, this court would nevertheless affirm the judgment. A wrong reason for a decision does not invalidate it. The result may be right, though the reason given for making it be wrong.
So with the order granting a new trial. The specific or particular reason given for making it is usually unimportant. In illustration: A new trial may be granted for supposed error in an instruction, and for that reason alone. If the instruction be correct, but prejudicial error was committed in the admission or the rejection of evidence, or in any other particular within the grounds assigned for the motion, and specified in the statement or bill, the party aggrieved will be entitled to a trial de novo, notwithstanding the reason by which the right result was reached was wrong. Were the rule otherwise, miscarriages of justice would frequently occur. The moving party may be entitled to a new trial, which the court grants for the wrong reason. He cannot maintain an appeal from the order made at his instance. The judgment is canceled, or at least suspended while the order remains in force, and he cannot appeal from it. Therefore, if the order granting a new trial be reversed by the supreme court, the party aggrieved by the verdict and entitled to a new trial would be without redress. The rule ought to be limited to this extent: If in the order granting a new trial the district court explicitly excludes the ground that an abuse of discretion has been committed, or that the evidence is insufficient, and the record fails to establish affirmatively a clear abuse to the moving party's prejudice in the one case, or shows a substantial conflict in the other, then this court should not affirm the order, unless it may be justified on other grounds. Where there are several specifications in support of an application for a new trial, and among these is included an alleged abuse of discretion, or the insufficiency of the evidence, or both, and in granting the motion the court expressly excludes the particular ground or grounds just mentioned, this court will not consider it or them, unless it appear that the duty was incumbent upon the district court to grant a new trial therefor. If the grounds so excluded refer to mere matter of discretion, among which may be reckoned the determination of the question of the preponderance of conflicting evidence, whether received at the trial, or in support of the motion for a new trial, as well as numerous questions of mixed law and fact, the order granting a retrial will not be affirmed, although the court below would not have erred in granting a new trial therefor, unless some other ground would justify the order. This rule, in part, is declared in Kauffman v. Maier, 94 Cal. 269.29 P. 481.
2. Since the submission of the appeal, defendant has abandoned the point that the statute bars the remedy for the killing of the cattle in 1895. The only error specified in the statement on motion for a new trial, and relied upon here to support the order appealed from, is the peremptory instruction to find for the plaintiff in a sum equal to the value of all the animals. It is conceded that the testimony given by plaintiff tended to establish that the actual negligence of the defendant was the proximate cause of the death of the cows killed in 1896, and defendant admits the right of the court to direct the jury to return a verdict for their value upon his testimony alone. By this admission we are relieved of the necessity of deciding whether the evidence of a party directly interested is, as a matter of law, to be deemed conclusive proof.
3. The only question, then, is whether the court erred in directing a verdict for the value of the animals killed in 1895. With respect to these, there was not sufficient evidence to...
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