Miller Ins. Agency v. Home Fire & Marine Ins. Co. of California

• Decision Date: 30 October 1935
• Docket Number: 7405.
• Parties: MILLER INS. AGENCY v. HOME FIRE & MARINE INS. CO. OF CALIFORNIA et al.
• Court: Montana Supreme Court

51 P.2d 628

100 Mont. 551

MILLER INS. AGENCY v. HOME FIRE & MARINE INS. CO. OF CALIFORNIA et al.

No. 7405.

Supreme Court of Montana

October 30, 1935

Appeal from District Court, Silver Bow County, Second District Frank L. Riley, Judge.

Action by the Miller Insurance Agency against the Home Fire & Marine Insurance Company of California and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

S. C Ford, of Helena, and H. L. Maury and A. G. Shone, both of Butte, for appellant.

J. A Poore, of Butte, for respondents.

MATTHEWS Justice.

The Miller Insurance Agency instituted action for libel against the Home Fire & Marine Insurance Company of California and Ray C. Culver, its general agent for Montana. Issue was joined by answer and reply thereto and a trial had. At the close of plaintiff's case the court granted separate motions of the two defendants for nonsuit and thereupon entered judgment dismissing the action.

The plaintiff has appealed from the judgment and makes the following specifications of error: "The court erred in sustaining the motion for nonsuit as to the defendant Home Fire & Marine Insurance Company of California. 2. The court erred in sustaining the motion for nonsuit in favor of defendant Ray C. Culver. 3. The court erred in entering judgment for both of the defendants. 4. The court erred in refusing to admit in evidence exhibits for identification Z-1, Z-2, Z-3, and Z-4, respectively, as follows: [The exhibits are set forth with the objection thereto.]" 5. Misconduct of counsel in stating to a witness, "You need not wink one eye at your counsel, but wink with both eyes, and I will see that just as readily," for which the court refused to admonish counsel.

Counsel for defendants asserts that the first three specifications do not conform to rule X, subdivision 3-c, of this court, in that they amount to but general specifications and, therefore, raise no issue for determination. Rogness v. Northern Pacific R. Co., 59 Mont. 373, 196 P. 989, 992. In the Rogness Case this court, after disposing of other questions raised, declared that a general specification that the court erred in denying defendant's motion for a new trial was insufficient, for the reason that there are numerous grounds for a new trial, and such a specification does not advise the court as to what ground the movant relied upon or of any legal question involved. The court closed the discussion with the statement that "for these reasons a general assignment that the court erred in overruling motion for new trial, or in entering judgment, is insufficient to raise any issue," without reference to the requirements of the rule on the subject or the citation of an authority.

In the case of Samuell v. Moore Mercantile Co., 62 Mont. 232, 204 P. 376, 377, the plaintiff made two assignments of error, viz., that the court erred in entering judgment for the defendant and in denying plaintiff's motion for a new trial. This court declared: "Counsel for appellant have disregarded the rules of this court in the most flagrant manner. Neither of the two so-called assignments of error presents any question for review (Rogness v. Northern Pacific R. Co., 59 Mont. 373, 196 P. 989), and their brief is practically devoid of argument and does not contain the citation of a single authority in support of their position. This court ought not to be called upon to do the work which counsel are employed to do, and with perfect propriety we might affirm the judgment and order without reference to the merits, and justify our decision upon reason and numerous decisions of this court and other courts of last resort." In justice to the appellant, however, the court determined the matter on the merits by "original investigation."

It will be noted that the work the court was required to do was necessitated, not by reason of the general nature of the specifications of error, but by the failure of counsel to show to the court by precept and citation in their brief and by argument wherein the court erred.

We are of the opinion that the correct interpretation had been given to the rule relied upon, long prior to the decision in the Rogness Case, and that this court, in the Samuell Case, stated the correct reason for its declaration that it might with propriety affirm the judgment on the condition of the brief.

Rule X, on the preparation of briefs, declares the necessary content thereof by subdivision 3, again subdivided into a, b, c, and d. Subdivision c provides that the brief shall contain "a specification of errors relied upon, which shall be numbered and shall set out separately and particularly each error intended to be urged." The manner in which specifications of error on the reception or rejection of evidence and on the charge of the court is then prescribed. Subdivision d requires "a brief argument, exhibiting a clear statement of the points of law to be discussed *** and authorities relied upon." These provisions have remained unchanged for more than thirty-five years (Rules promulgated in 1899, 22 Mont. xxvii) and were correctly construed in 1904 (Nord v. Boston & Mont., etc., Min. Co., 30 Mont. 48, 75 P. 681, 683) on the exact question here raised. In the Nord Case this court declared: "There is no requirement that the specification shall set out appellant's reasons why he claims the decision is error. That is purely a matter of argument. It is sufficient under the provisions of this rule, therefore, to simply specify that the court below 'committed error in granting the motion for nonsuit.' The rules of the court are not established for the purpose of befogging attorneys, and a reasonable interpretation of them, therefore, should obtain. The purpose of this subdivision of rule 10, above cited, is to require attorneys to specify and point out the errors of which they complain, and not to give their reasons why they complain it is error, and, if more than one error is charged, to number them and set them out separately and particularly."

Except where the rule above requires more, a general specification of error is sufficient as a specification of the error on which appellant relies, leaving the reasons for charging error to the brief of argument and oral argument of counsel. However, although such a specification will be sufficient, if no reference is thereafter made to a specification of error either in the brief or in oral argument, the assignment will be considered waived and will not be given consideration by the court, except, perhaps, in circumstances such as appear in Samuell v. Moore Mercantile Co., supra. King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309; Lingquist v. Seibold, 62 Mont. 162, 199 P. 709; Burns v. Eminger, 84 Mont. 397, 276 P. 437; Bielenberg v. Higgins, 85 Mont. 56, 277 P. 631. In so far as the opinion in Rogness v. Northern Pacific R. Co., supra, is in conflict with the foregoing, it is hereby expressly overruled.

The fourth and fifth assignments are not discussed in the brief and were not argued orally; they are, therefore, under the foregoing rule, deemed waived and will not be here considered. It may be noted, however, that they are of little importance on this appeal. The excluded exhibits were merely cumulative and the alleged misconduct of counsel could only be prejudicial on submission of the cause to the jury.

The reasons urged by counsel for the plaintiff in support of their assignment that the court erred in granting the motions for nonsuit and, consequently, in entering judgment for the defendants, stated succinctly, are that the evidence adduced is sufficient to go to the jury and that, as this is a libel case, the jury is the sole judge of the law and the facts.

The rule in this jurisdiction is that a case should never be withdrawn from the jury unless it appears, as a matter of law, that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish; but whenever there is no evidence in support of plaintiff's case, or the evidence is so unsubstantial that the court would feel compelled to set aside a verdict, if one should be rendered for the plaintiff, a nonsuit should be granted. Louden v. Scott, 58 Mont. 645, 194 P. 488, 12 A. L. R. 1487; Childers v. Deschamps, 87 Mont. 505, 290 P. 261; Rau v. Northern Pacific R. Co., 87 Mont. 521, 289 P. 580. This rule applies in actions for libel (Porak v. Sweitzer's, Inc., 87 Mont. 331, 287 P. 633), as the constitutional provision that "the jury, under the direction of the court, shall determine the law and the facts" (article 3, § 10, Constitution of Montana), indicates no purpose to require the court in such cases to abdicate its jurisdiction, as to matters of pleading and practice, to the jury. Paxton v. Woodward, 31 Mont. 195, 78 P. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546; Manley v. Harer, 82 Mont. 30, 264 P. 937.

The evidence on behalf of the plaintiff discloses the following facts: In 1929 the Home Fire & Marine Insurance Company entered into a written contract with the Bennetts-Bertoglio Company of Butte, by the terms of which the latter was made the local agent of the former in that community without designating the nature of the business to be transacted as such agent, other than as indicated by the agent's covenants therein contained. It bound the agent "to perform faithfully all duties pertaining to such agency, to observe and carry out the rules and instructions of the company and to further its interests in every lawful way." Therein the agent covenanted that during the term of the agreement it would not, either directly or indirectly accept any commission on "any business relating to the hazards of fire, lightning, earthquake," etc., which are at variance with those paid by the company, and would not...