Morris v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 31 December 1915
• Citation: 32 N.D. 366,155 N.W. 861
• Court: North Dakota Supreme Court
• Parties: MORRIS v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

32 N.D. 366

155 N.W. 861

MORRIS

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Dec. 17, 1915.

Rehearing Denied Dec. 31, 1915.

Syllabus by the Court.

Where a motion is not made for a directed verdict or the sufficiency of the evidence to support the verdict challenged by motion for new trial, the sufficiency of the evidence to sustain the verdict cannot be raised for the first time on appeal and by an alleged specification of error to that effect, served with the notice of appeal.

Specifications of error so taken must be founded upon some alleged error committed below for its basis. And where a ruling upon the sufficiency of the evidence has not been invoked in the trial court, no error of law has been committed, and the sufficiency of the evidence to justify the verdict cannot be passed upon under an alleged specification of error.

A specification by plaintiff, appellant, of insufficiency of the evidence to justify the verdict, presents no question calling for a review of the evidence where the jury have found for the defendant by a general verdict establishing that the evidence was insufficient to sustain a verdict for plaintiff.

As the practice questions involved since the 1913 Practice Act are new, the evidence has been examined, and it has been ascertained that the verdict is justified thereunder on the merits.

Additional Syllabus by Editorial Staff.

In order to constitute a “review” under Comp. Laws 1913, § 7843, providing that “no motion for a new trial shall be necessary to obtain, on appeal, a review of any question of law or of the sufficiency of the evidence,” etc., the question must have been raised below.

Appeal from District Court, Foster County; Coffey, Judge.

Action by Price E. Morris against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.T. F. McCue, of Carrington, for appellant. Edward P. Kelly, of Carrington, for respondent.

GOSS, J.

For the facts consult the first opinion in this case at 25 N. D. 136, 141 N. W. 204. At the close of the first trial a verdict was directed for defendant upon a theory of a failure of proof of loss of grain. A carload of barley was shipped from Bordulac in this state to Superior, Wis. There was a difference of 4,960 pounds between initial and terminal weights as made under the proof. On plaintiff's appeal in the former case it was held that the proof was sufficient to entitle plaintiff to a jury finding upon the fact of loss and amount thereof, if any. On the second trial, the finding of the jury was adverse to the plaintiff and for dismissal. From judgment entered thereon plaintiff appeals, without moving for a new trial below. In his specification of error served with his notice of appeal he has alleged that the verdict is contrary to the evidence, and that the evidence is insufficient to sustain the verdict, and that upon the whole record the plaintiff is entitled to verdict and judgment.

[1][2] As plaintiff failed to obtain a ruling in the trial court upon the sufficiency of the evidence by failing to move for a directed verdict in his behalf, or move for a new trial upon said ground, he has no error of law below upon which on appeal he can seek a review. An erroneous ruling upon a motion for directed verdict is an error of law and is reviewable on appeal from the judgment; and in cases where the evidence is insufficient to support the verdict and where the sufficiency of the evidence to support the verdict has been tested by motion for directed verdict or motion for a new trial upon said ground and overruled, and an error of law exists because of such ruling, the same may be challenged on appeal, and the appellant may claim the evidence as insufficient to support the verdict, pointing out wherein it is insufficient, and in this court invoke a review of the alleged error committed below, but not otherwise. Such was the practice before the passage of chapter 131, C. L. 1913, commonly known as the Practice Act, and such is still the law. Wilson v. Kryger, 29 N. D. 28, 149 N. W. 721;Leu v. Montgomery, 28 N. D. 329, 148 N. W. 664;Willoughby v. Smith, 26 N. D. 209, 144 N. W. 79. Section 4 thereof (section 7656, C. L. 1913), does not change the prior settled practice in such respect. While the language of the act is somewhat ambiguous and possibly susceptible of a contrary construction, undoubtedly it was not intended to permit virtually a retrial in this court of the sufficiency of the evidence to sustain a verdict, where the lower court was never asked to pass upon that question; and it ought not to be so construed. The record in this case is a splendid illustration of the operation of such a construction as is contended for by plaintiff. In the lower court plaintiff sat mute, assuming, as did the court and opposing counsel, that the evidence was sufficient to justify submitting the ultimate conclusion of fact and law to the jury for their determination under instructions. The jury found adversely to plaintiff. Appellant now on appeal seeks to urge something not spoken of below and perhaps an afterthought, to wit, the sufficiency of the evidence to justify submission of the cause to the jury on the fact. To sustain his contention will establish a precedent to permit a party to purposely omit to raise the issue of sufficiency of the evidence in the trial court and before the court fully familiar with all phases of the proof, speculate upon the outcome of a verdict and his ability to recover at the jury's hands, and then, if the verdict happens to be unfavorable, for the first time on appeal invoke a review of the sufficiency of the evidence to sustain it; and that, too, without having laid any basis in law therefor, having invoked no ruling below upon that question, either on trial or on motion for a new trial. Such procedure would not only be unfair to trial courts, and litigants as well, but also would consume the time of this court in passing upon issues of fact, virtually a trial anew of facts on appeal. Until the Legislature says in plain language that this was intended, it is our duty to lay no such traps for error nor assume to pass upon questions not raised below and not amounting to errors of law.

[4] But it may be claimed that by section 7843, C. L. 1913, a provision of the 1913 Practice Act, that “no motion for a new trial shall be necessary to obtain, on appeal, a review of any questions of law or of the sufficiency of the evidence, unless,” etc., which coupled with section 7656, C. L. 1913, a...