Mueller v. Trudell

• Decision Date: 29 November 1960
• Docket Number: Nos. 9855,9856,s. 9855
• Citation: 78 S.D. 624,106 N.W.2d 374
• Parties: A. J. MUELLER, Plaintiff and Appellant, v. Marvin E. TRUDELL and Robert Jadnalski (whose true name is Robert Gednalski), Defendants and Respondents. Roseann MUELLER, by A. J. Mueller, her Guardian, Plaintiff and Appellant, v. Marvin E. TRUDELL and Robert Jadnalski (whose true name is Robert Gednalski), Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 374

106 N.W.2d 374

78 S.D. 624

A. J. MUELLER, Plaintiff and Appellant, v. Marvin E. TRUDELL and Robert Jadnalski (whose true name is

Robert Gednalski), Defendants and Respondents.

Roseann MUELLER, by A. J. Mueller, her Guardian, Plaintiff and Appellant, v. Marvin E. TRUDELL and Robert Jadnalski (whose true name is

Robert Gednalski), Defendants and Respondents.

Nos. 9855, 9856.

Supreme Court of South Dakota.

Nov. 29, 1960.

Stover, Beardsley & Osheim, Watertown, for plaintiffs and appellants.

Cherry, Braithwaite & Cadwell, Sioux Falls, for defendant and respondent, Marvin E. Trudell.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for defendant and respondent, Robert Gednalski.

HANSON, Judge.

Roseann Mueller, a minor, was injured in an automobile collision involving three cars proceeding in the same direction. She commenced an action by A. J. Mueller, her father and guardian, against defendants Marvin E. Trudell and Robert Gednalski to recover $9,150 damages for personal injuries suffered by her. A. J. Mueller also commenced an action against the same defendants to recover $323.20 for medical care and expenses incurred in the treatment of his daughter. The actions were consolidated for trial and appeal. The jury returned a verdict for Roseann Mueller in the amount of $3,000 and a verdict for A. J. Mueller in the amount of $323.20 against the defendants. Motions for judgment notwithstanding the verdict or in the alternative for a new trial were made by both defendants. After hearing the trial court granted defendant Gednalski's motion for judgment notwithstanding the verdict and also granted defendant Trudell's alternative motion for a new trial. Plaintiffs appeal.

Plaintiffs contend (1) that defendant Trudell's motion for new trial, and the order granting the same, are insufficient; (2) if such motion and order are deemed sufficient, then the evidence of defendant Trudell's negligence is so great the court abused its discretion in granting the motion for new trial; and (3) the trial court erred in granting judgment n. o. v. in favor of defendant Gednalski for the reason that his negligence and whether or not the same was a proximate cause of the accident were proper questions for the jury.

Omitting formal parts Trudell's alternative motion is in the following language:

'Comes now the above named Defendant, Marvin E. Trudell, and moves the Court to vacate and set aside the verdicts in each of the above entitled actions of the jury (and any Judgments entered thereon) insofar as such verdicts seek to establish liability on the part of Defendant Trudell unto Plaintiffs, and to enter Judgment against Plaintiffs in each of the said actions and in favor of Defendant Trudell upon all of the issues herein for all of the grounds stated in Defendant Trudell's motion for a directed verdict herein, which is a part of the files and records herein and which by this reference is made a part thereof.

'If the above and foregoing motion is denied, then as an alternative motion, Defendant Trudell moves the Court to grant a new trial for the reason that the verdicts of the jury are contrary to the evidence and against the law in that the same shows a clear disregard by the jury of the instructions of the Court or was rendered by said jury under a misapprehension of the instructions of the Court. This motion is based upon all of the files and records herein.'

Although the two motions are combined in a single application the motions are separately stated and separately grounded. The motion for new trial is not clearly based upon any statutory ground. Its language appears to include grounds for granting a new trial by a court on its own motion. See SDC 33.1609. However, the motion admittedly was not brought under that section which has no application here. Assuming the motion was made under subsection (6) of SDC 33.1605, then it is deficient in not stating 'the particulars wherein the evidence is claimed to be insufficient' as required by SDC 33.1606. Englebert v. Ryder, S.D., 91 N.W.2d 739. As the particulars of insufficiency were not stated in the application for new trial the burden, in effect, was cast upon plaintiffs to show the evidence was sufficient to sustain the verdict of the jury. This is not in accord with the spirit and intent of our statutory requirements. It follows that such application was not sufficient to invoke the jurisdiction of the trial court to hear and determine the question of a new trial with respect to defendant Trudell. Hylland v. Lawrenson, 73 S.D. 605, 47 N.W.2d 287.

The order granting a new trial is subject to the same defect. So far as pertinent the order provides that 'the Defendant, Marvin E. Trudell is hereby granted a new trial on all of the issues in this case on the ground that the substantial rights of said Defendant (have) been prejudiced and said new trial (is) granted upon the following grounds:----

'1. Insufficiency of the evidence to justify the verdict and that it is against the law.

'2. That the evidence so preponderates against the verdict of the jury that it shows there has been a plain disregard by the jury of the instructions of the Court and the evidence and that the ends of justice require that there be a new trial of said action.'

Statutory grounds for new trial are exclusive and when a trial court grants a new trial it is required to 'specify each and every ground upon which it bases such order'. SDC 33.1611. In the case of Houck v. Hult, 58 S.D. 181, 235 N.W. 512, 514, it was pointed out that the specification of grounds 'shall be actual and detailed as to the particular errors which the trial judge relies upon as justifying the granting of a new trial, and shall not be a mere reiteration of the broad general grounds stated in section 2555, R.C.1919' (now SDC 33.1605). The first ground stated in the order is a mere reiteration of subsection (6) SDC 33.1605. It fails to specify where the evidence is deemed to be insufficient. Museus v. Geyer, 75 S.D. 381, 66 N.W.2d 63. The second ground stated in the order is not a statutory cause for which a new trial can be granted except when made by the trial court on its own motion 'only at the time the verdict is returned'. SDC 33.1609. Obviously it cannot serve as a predicate for a new trial here.

The remaining question is whether or not the trial court erred in granting defendant Gednalski's motion for judgment notwithstanding the verdict. For this purpose we state the evidence, as we must review it, in the light most favorable to plaintiffs. 'If it appears from the record when so reviewed that there is some substantial credible evidence in support of the verdict then the judgment entered thereon must be reinstated. If it is otherwise the action of the trial court was proper.' Hullander v. McIntyre, S.D., 104 N.W.2d 40, 41.

The evidence shows that on the evening of November 10, 1957, Preston Olson was driving his car in the town of Estelline South Dakota. (At the time of trial Olson was apparently in the armed forces. He was not made a party to the action and did not testify as a witness). The plaintiff, Roseann Mueller, then fourteen years of age, was riding as a passenger in the...