Mueller v. Trudell, s. 9855

• Court: Supreme Court of South Dakota
• Writing for the Court: HANSON
• 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.
• Docket Number: Nos. 9855,9856,s. 9855
• Decision Date: 29 November 1960

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.

Page 375

[78 S.D. 625] 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.

[78 S.D. 626] 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[78 S.D. 627] 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

Page 376

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...