Nelson v. Scherling, 6777.
| Decision Date | 25 November 1941 |
| Docket Number | No. 6777.,6777. |
| Citation | 300 N.W. 803,71 N.D. 337 |
| Parties | NELSON v. SCHERLING et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A motion for judgment notwithstanding the verdict does not go to the weight of the evidence. In case of an adverse verdict the evidence is considered in the light most favorable to the party obtaining the verdict; and where, upon the whole record, there is no issue of fact to submit to the jury, so that the moving party would be entitled to judgment as a matter of law, the motion for judgment notwithstanding the verdict should be granted. However, if, upon the whole record, it is reasonable to believe the defects in the evidence may be supplied upon a new trial, so as to present an issue for the jury, the trial court should deny the motion for judgment notwithstanding the verdict, and grant a new trial, when the motion is made in the alternative.
Appeal from District Court, Cass County; P. G. Swenson, Judge.
Action by Tilda Nelson against A. R. Scherling and Sophia Scherling to recover for personal injuries. From an order denying a motion for judgment notwithstanding a verdict for plaintiff, the defendants appeal, and from an order granting a new trial, the plaintiff appeals.
Order granting new trial affirmed.
Burnett, Bergeson & Haakenstad, of Fargo, for plaintiff-respondent-appellant.
Emanuel Sgutt, of Fargo, for defendants-appellants-respondents.
Herein we consider two appeals-an appeal by defendants from an order denying a motion for judgment notwithstandingthe verdict, and an appeal by plaintiff from an order granting a new trial.
In the amended complaint, the plaintiff seeks to recover damages for injuries received through the explosion of an oil burner furnace, alleging that the explosion was caused through the carelessness and negligence of the defendants in failing to keep the burner in good repair and working order, and the burner was part of its heating plant in a house owned by defendants and under their management and control.
In the amended answer, defendants deny that at the time of the occurrence of the injuries, they had possession of, or any control over, the premises upon which the alleged injuries occurred, or control or possession of the oil burner or furnace alleged to have caused the injuries; deny ownership, and also that the plaintiff suffered any damages because of any negligence or carelessness on their part; and allege that whatever damages plaintiff suffered were caused by her own contributory negligence and want of care.
A verdict was returned for the plaintiff, and thereupon the defendants moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial.
The defendants assert the evidence shows conclusively there is no liability on their part, and, on motion for a new trial:
“1. Irregularity in the proceedings of the court and the adverse party in permitting the attorney for the plaintiff to argue the issue of agency to the jury over the objection of the defendants when such agency was not an issue involved either under the pleadings or the evidence, by reason of which the defendants were prevented from having a fair trial.
2. Excessive damages appearing to have been given under the influence of passion or prejudice.
3. Insufficiency of the evidence to justify the verdict and that such verdict is against law.
4. Error in law occurring at the trial and excepted to by the party making this application.”
The assignments of error upon which this motion was based set forth four instances of the refusal of the court to give requested instructions to the jury; alleged error of the court in instructing the jury, in denying a motion for directed verdict, permitting counsel for the plaintiff to argue certain matters to the jury, and in overruling objection to the testimony of a witness; five specifications of the insufficiency of the evidence; and the action of the court in permitting the plaintiff to amend her complaint after the trial.
On the hearing, the court denied the motion for judgment notwithstanding the verdict, but granted the alternative motion for a new trial.
[1] A litigant defeated in the trial court may make a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, and under the provisions of section 7643 of the Supplement, this court may order judgment to be entered “on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order.” See Welch Mfg. Company v. Herbst Department Store, 53 N.D. 42, 48, 204 N.W. 849, 852.
On defendants' appeal, we are limited in our review to a consideration of whether the appellants have shown that the trial court erred in denying judgment notwithstanding the verdict.
Consequently, so far as defendants are concerned, we do not consider whether the court erred: In refusing to give certain instructions to the jury, in instructing the jury, in admitting testimony objected to, or in the matter of the conduct of counsel. If the court erred, as alleged, these errors have been corrected by the court itself in granting a new trial.
On a review of an order denying a motion for judgment notwithstanding the verdict, this court is limited to a consideration of the evidence. If the record is such that there was some issue of fact to submit to the jury, and the jury rendered a verdict thereon, then it is clear the motion for judgment notwithstanding the verdict should be denied.
[2][3][4] It is not necessary to review the decisions of this court setting forth the principle involved. Such motion will not be granted where there is an issue for the jury to pass upon under the evidence, as it does not go to the weight of the evidence. In passing upon such matter, the evidence is considered in the light most favorable to the party against whom the motion is made. State et al. v. Yellow Cab Company, 62 N.D. 733, 736, 245 N.W. 382, 383.
That there was an explosion on the premises maintained by the defendants as their home, and that the plaintiff suffered injury, is well sustained by the evidence. A. R. Scherling, the husband, had rented a portion of the premises to one Gransberg, and Gransberg was to operate this oil burner for heating purposes, so as to supply heat for the rooms retained by Scherling, and the room Scherling had rented to a tenant, pay for half of the fuel and for half of...
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