Mielitz v. Schmieg, s. 16767
| Decision Date | 24 May 1990 |
| Docket Number | Nos. 16767,16773,s. 16767 |
| Citation | 461 N.W.2d 763 |
| Parties | Donald MIELITZ, Plaintiff and Appellee, v. Lawrence SCHMIEG, Individually and Lawrence Schmieg and Clarence Schmieg dba A Partnership, Defendants and Third Party Plaintiffs and Appellees, v. Richard R. MIELITZ, Third Party Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
T.F. Martin, McCann, Martin & McCann, P.C., Brookings, for third party defendant and appellant.
William E. Coester, Milbank, for defendants and third party plaintiffs and appellees.
J. Douglas Austin, Austin, Hinderaker, Hackett & Hopper, Watertown, for Donald Mielitz plaintiff and appellee.
A farm truck belonging to Donald Mielitz (Mielitz) was struck by a tractor driven by Lawrence Schmieg (Schmieg). At the time of the collision, the truck was operated by Mielitz' son, Richard Mielitz (Richard). Mielitz subsequently brought suit against Schmieg for property damage to his vehicle. Schmieg brought Richard into the lawsuit as a third-party defendant. The case was tried to a jury on May 11 and 12, 1989. On May 12, 1989, around midnight, the jury returned its verdicts for Mielitz in the amount of $9,427. 1 The jury was subsequently polled and discharged.
Special interrogatories were submitted to the jury but not read that evening. Further, the jury was not questioned regarding the special interrogatories by anyone prior to discharge of the jury.
Subsequently, when the special interrogatories were reviewed by the court and counsel, they were found to be consistent with each other. However, Verdict No. 4 pertaining to a 25% contribution by Richard was clearly opposite to the special interrogatories answered by the jury. The special interrogatories indicated that Richard was 75% at fault while Schmieg was 25% at fault.
On May 23, 1989, Schmieg moved the court to change the verdict to conform with the special interrogatories. Richard filed a motion for a new trial. On May 26, 1989, the court entered its second judgment, which essentially changed the percentage of Richard's contribution to Schmieg from 25% to 75%. The court then entered judgment in favor of Schmieg and against Richard for $75 plus pre-judgment interest. Also, because Schmieg had made payment to Mielitz in the sum of $6,155.08 (which is double the amount owed by Schmieg to Mielitz) the court entered judgment against Richard in favor of Schmieg in the amount of $3,077.54. Richard paid the $75 portion but refuses to pay the $3,077.54 portion of the judgment. On appeal, Richard raises two issues:
(1) Did the trial court err in entering an amended final judgment, where the jury verdict was inconsistent with the special interrogatories?
(2) Did the trial court err in denying his motion for a new trial?
--Holding--
Reversed. Due to our decision on issue one, we do not address the second argument. Mielitz has filed a notice of review but has failed to academically argue it in his brief. The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived. Kanaly v. State ex rel. Janklow, 403 N.W.2d 33 (1987).
Mielitz owned a farm truck which was involved in a country road accident with a farm tractor owned by Schmieg. Mielitz's truck was driven by his son Richard who had borrowed the truck to haul his grain to a bin for storage. A minor collision occurred between the two vehicles in which the dust cap on the hub of the front wheel of Mielitz's truck was dented and the rim of the left front wheel on the Schmieg tractor was broken. As a result of the collision, which occurred when Richard was attempting to pass Schmieg, Richard's truck was pushed onto the shoulder of the road. When Richard attempted to pull it back onto the road, the truck overturned and sustained major damage.
I. The trial court abused its discretion in entering an amended final judgment when ordering a new trial was more appropriate.
As we begin our analysis, we initially note that this is a case of first impression.
When the answers to special interrogatories are consistent with each other, but inconsistent with the general verdict, the inconsistency is governed by SDCL 15-6-49(b), which is the equivalent of Rule 49(b) Fed.R.Civ.P. The trial court has three options under SDCL 15-6-49(b): 1) judgment may be entered pursuant to SDCL 15-6-58 in accordance with answers to the special interrogatories and contrary to the general verdict; or 2) the court may return the jury for further consideration of its answers and verdict; or 3) the trial court may order a new trial.
Initially, Richard contends that Schmieg waived his right to complain about the inconsistencies between the verdict and the special interrogatories. According to Richard, Schmieg should have objected and asked that the jury resume its deliberations in order to rectify the inconsistency before the jury was discharged.
In support of his contention, Richard relies on cases that were decided under Rule 49(b), Fed.R.Civ.P. and involved general verdicts which were inconsistent with answers to one or more interrogatories. Fernandez v. Chardon, 681 F.2d 42 (1st Cir.1982), affirmed on other grounds sub nom.; Barnes v. Brown, 430 F.2d 578 (7th Cir.1970); Ludwig v. Marion Laboratories, Inc., 465 F.2d 114 (8th Cir.1972); Cundiff v. Washburn, 393 F.2d 505 (7th Cir.1968). Although not uniformly the ruling, several circuits have held that Rule 49(b) allows a party to waive any objections to the alleged inconsistency between the interrogatories and the general verdict (or in the interrogatories themselves) by failing to raise them before the jury is discharged. See, e.g., Strauss v. Stratojac Corp., 810 F.2d 679 (7th Cir.1987) (). Other circuits have handled this question quite differently. Los Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351 (9th Cir.1987); Schaafsma v. Morin Vermont Corp., 802 F.2d 629 (2nd Cir.1986). See also 9 C. Wright & A. Miller, Federal Practice & Procedure § 2513 at 527-28 (1971).
In all the above-mentioned cases, the interrogatories were read in open court after the verdict, allowing for a discussion between the court and counsel before the discharge of the jury. In this case, by contrast, the interrogatories were not read to the parties or to the court after the verdicts and before discharge of the jury. Hence, the parties were not aware of the inconsistencies until after discharge of the jury, when the court and counsel reviewed the interrogatories. Consequently, we do not have the compulsion of a strict procedural rule to determine the outcome of this issue.
As noted earlier, several different circuits have addressed the question of waiver, although in different factual contexts from that in the case before us. In Cundiff, supra, the judge expressly noted the discrepancy in the jury's results and asked counsel whether either wanted the jury to reconsider its answers; counsel replied in the negative. Hence, in Cundiff, the court held that the appellant waived any objection to the verdict on grounds of inconsistency with the special finding by failing to move the resubmission of the verdict and finding to the jury. In Barnes, supra, the parties failed to object to an inconsistency between the general verdict and special findings, whereupon the trial judge entered judgment in the manner provided for by the Rule 49(b), i.e., in conformity with the special findings. The failure of the parties to raise the inconsistency before the jury's dismissal did not result in a waiver of the provisions of 49(b) but rather its enforcement according to its terms.
We like the reasoning of the Ninth Circuit in Nut House, supra. They are of the position that a waiver rule is inconsistent with the language and structure of Rule 49(b) because it presupposes that there might be a right to further deliberation or a new trial if timely objection was made:
The problem with the waiver theory ... is that it would produce a result directly contrary to the rule (49(b)) and permit the wrong party--the one favored by the jury's general verdict--to obtain a judgement. 2 That is not a sensible reading of Rule 49(b).
Having said as much, we do not believe the waiver rule should be applied in this case. However, we note that it is preferable for a party to raise this issue prior to discharge of the jury. Thus, the trial judge will not be deprived of the opportunity to send the question back to the jury for further consideration of its answers and verdict. This is important because SDCL 15-6-49(b) clearly contemplates discovery of the inconsistency before the jury is discharged.
Further, Richard argues that a new trial should have been granted because of the inconsistencies between the verdict and the special interrogatories and because of the insufficiency of the evidence to justify the verdict.
Once again, under SDCL 15-6-49(b) a trial court, upon discovering an inconsistency between a general verdict and the special interrogatories, can attempt to have the inconsistency remedied in any of three ways: 1) judgment may be entered pursuant to SDCL...
To continue reading
Request your trial
-
Combs v. Hahn
...service, waiver of the issue d[oes] not occur." Nelson v. Sigman, 558 N.E.2d 1115, 1117 (Ind.Ct.App.1990). See also Mielitz v. Schmieg, 461 N.W.2d 763 (S.D.1990) (jury discharged before opportunity to object). Other courts have held that "there is no waiver of this issue when the plaintiff ......
-
Moore v. Michelin Tire Co., Inc.
...for analytical assistance in interpreting the South Dakota rule. Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D.1994); Mielitz v. Schmieg, 461 N.W.2d 763, 765 (S.D.1990). Federal courts allowing the pleading of fictitious parties require all conditions in Rule 15(c) be met before relation ba......
-
Harris v. Young
...matter jurisdiction. 5. Failure to Cite Supporting Authority Mother, as appellant, 4 cites SDCL § 15-26A-60(6) and Mielitz v. Schmieg, 461 N.W.2d 763 (S.D.1990), for the proposition that father's failure to cite authority in support of three of his arguments constitutes SDCL 15-26A-60(6) pr......
-
Bryan v. James
...Tire Co., Inc., 1999 S.D. 152, ¶ 24, 603 N.W.2d 513, 520 (citing Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D.1994); Mielitz v. Schmieg, 461 N.W.2d 763, 765 (S.D.1990)). Because SDCL 15-6-54(b) is substantially the same as its federal counterpart, other courts' decisions on this issue are ......