Moen v. Moen

• Decision Date: 25 September 1934
• Docket Number: No. 6279.,6279.
• Citation: 65 N.D. 40,256 N.W. 254
• Parties: MOEN v. MOEN.
• Court: North Dakota Supreme Court

65 N.D. 40

256 N.W. 254

MOEN

v.MOEN.

No. 6279.

Supreme Court of North Dakota.

Aug. 14, 1934.

Rehearing Denied Sept. 25, 1934.

Syllabus by the Court.

1. Assignments of error not argued in the brief are deemed abandoned and need not be noticed.

2. It is proper for the trial court to refuse to direct a verdict for the defendant when there is conflicting testimony on the material issues so that the jury may find either way.

3. To charge a person with being a thief is slanderous per se, if not true, and the slandered person is entitled to recover damages therefor.

4. In all cases the amount of damages allowed must be reasonable.

5. Where the record shows that a jury did not exercise cool and deliberate judgment but permitted their verdict to be determined by passion and prejudice, the trial court should not permit the verdict to stand; but before the verdict is set aside or modified in the amount allowed, the record must be such as to strike a fair-minded man as being unreasonable and outrageous in the light of all of the circumstances shown.

6. Where the record shows plaintiff is entitled to damages, and also that the amount allowed is clearly given under the influence of passion or prejudice, and a new trial is asked for on this ground, and it appears from the record that the passion or prejudice affected only the amount of the damages and did not influence the findings of the jury on the other issues, this court on appeal has the power to order a reduction of the verdict in lieu of a new trial, or to order a new trial in case the prevailing party refuses to agree to such remission of a portion of the judgment as this court determines.

Appeal from District Court, Grand Forks County; Daniel B. Holt, Judge.

Action by Nels Moen against Theodore C. Moen. From a judgment for plaintiff, and an order denying defendant's motion for a new trial, defendant appeals.

New trial granted on condition.

Chas. A. Lyche, of Grand Forks, for appellant.

Geo. A. Bangs and Aaron T. Jahr, both of Grand Forks, for respondent.

BURR, Chief Justice.

This is an action to recover damages for alleged slander.

Plaintiff charges the defendant with saying: “Nels has been thieving and stealing wood and fence posts ever since the mortgage was issued,” and “he is a thief.”

Defendant denies this, alleging he said:

“But this I firmly believe that a man who has some one to cut timber on halves without permission from he who hold the sheriff's certificate of sale during the redemption period steals from the owner of the sheriff's certificate.”

At the close of the case defendant moved for a directed verdict which motion was denied. The jury returned a verdict for the plaintiff in the sum of $1,000 actual damages and $2,000 exemplary damages. Judgment was entered for the amount of the verdict and costs. Defendant moved for a new trial which was denied. The appeal is from the judgment entered and from the order denying defendant's motion for a new trial.

There are numerous specifications of error, but they may be grouped into three classes as follows: There is no evidence to sustain the verdict, especially with reference to its amount; the court erred in the reception and rejection of testimony; and the court erred in refusing to give certain requested instructions.

[1] We concern ourselves with the issue arising on the question of the verdict. Appellant's brief is devoted, practically exclusively, to consideration of this subject. There is a mere reference to the rulings on the omission and rejection of testimony and to the refusal to give the requested instructions. There is no argument thereon nor any citations of authorities other than specified in the requested instructions. The case is submitted on briefs and the only reference we find to the alleged error in refusing instructions is this statement found on page 39 of appellant's brief:

“Then, we desire to call the court's attention to errors in refusing defendant's requests for instructions. There were five requests for instructions which were refused by the court without any reason as far as the record shows.

These instructions are based upon the law, and the particular book and page where the proofs involved could be found are set forth in each request, so that there is no excuse for refusing either one of the requests asked by the defendant.”

Where assignments are not argued in the brief they are deemed abandoned and need not be noticed. Kennedy v. State Bank, 22 N. D. 69, 132 N. W. 657;Willoughby v. Smith, 26 N. D. 209, 144 N. W. 79;Starke v. Wannemacher, 32 N. D. 617, 626, 156 N. W. 494, 4 A. L. R. 167;Beauchamp v. Retail Merchants' Ass'n, 38 N. D. 483, 498, 165 N. W. 545.

[2] The trial court was justified in refusing to direct a verdict in favor of the defendant. There was plenty of evidence to show the defendant made the statements as charged by the plaintiff. True defendant gives a different version, but the conflict was one for the jury to determine and they could find either way. See Lang v. Bailes, 19 N. D. 582, 125 N. W. 891;Hager v. Clark, 35 N. D. 591, 161 N. W. 280;Kraft v. Martell, 58 N. D. 58, 225 N. W. 79.

The granting or denying of a new trial on the ground of the insufficiency of the evidence “is largely within the discretion of the trial court, and it is not error to deny a motion for a new trial where the evidence is conflicting and where there is ample evidence in the record to sustain the verdict if believed by the jury.” Burdick v. Mann, 60 N. D. 710, 236 N. W. 340, 341, 82 A. L. R. 1443.

The only serious question is the excessiveness of the verdict. It is the rule that “an application for a new trial upon the ground that the verdict is excessive and appears to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court.” Burdick v. Mann, supra. The appellate court will not interfere unless a manifest abuse of discretion is shown (Mason v. Underwood, 49 N. D. 243, 191 N. W. 949;Nesvold et al. v. Gerding, 51 N. D. 237, 199 N. W. 860); but if it reasonably appears that the verdict is excessive by reason of influence of passion or prejudice, it is the court's duty to determine whether the ends of justice will be best subserved by reducing the judgment or by ordering a new trial (Halverson v. Zimmerman, 56 N. D. 607, 218 N. W. 862;Schuler v. City of Mobridge, 44 S. D. 488, 184 N. W. 281). When a jury “instead of exercising cool and deliberate judgment, permit the verdict to be dictated by passion and prejudice, the trial court not only has the power, but it is a duty incumbent upon it, to set the verdict aside.” Mason v. Underwood, supra.

However, to authorize a new trial because the verdict is excessive, the damages must be so excessive “as to strike mankind as being unreasonable and outrageous, and such as manifestly show jury actuated by passion, partiality, prejudice or corruption, and unless flagrantly outrageous and extravagant court cannot draw the line, having no standard to ascertain excess. * * * Schuler v. City of Mobridge, supra. See also Booren v. McWilliams, 34 N. D. 74, 157 N. W. 698;Swanstrom v. Minneapolis, St. P. & S. S. M. Ry. Co., 34 N. D. 141, 157 N. W. 976.

The record shows plaintiff was living on the farm on which he was born. With him resided his aged mother, his wife, and children-the eldest child, at the time involved, being fourteen or fifteen years of age. The defendant had foreclosed a mortgage upon the farm, the year of redemption had expired and defendant had obtained a sheriff's deed. The plaintiff had taken advantage of an acceleration clause and declared the whole debt due because of default in payment of interest and taxes. Defendant went to the farm home with a prospective tenant and others, ostensibly to see when the plaintiff would surrender the premises. Plaintiff was absent from the...