Northern Imp. Co. v. Pembina Broadcasting Co.

• Citation: 153 N.W.2d 97
• Decision Date: 28 September 1967
• Docket Number: D,KTHI-T,No. 8379,8379
• Parties: NORTHERN IMPROVEMENT COMPANY, a corporation, Plaintiff and Respondent, v. PEMBINA BROADCASTING CO., Inc., a corporation, d.b.a.efendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 97

153 N.W.2d 97

NORTHERN IMPROVEMENT COMPANY, a corporation, Plaintiff and Respondent, v. PEMBINA BROADCASTING CO., Inc., a corporation, d.b.a KTHI-TV, Defendant and Appellant.

Civ. No. 8379.

Supreme Court of North Dakota.

Sept. 28, 1967.

Syllabus by the Court

1. Where a law action is tried to a court and jury and, at the close of the evidence both plaintiff and defendant move for a directed verdict, and neither objects to the motion of the other, the issues raised by motions become questions for determination by the court and it may direct a verdict.

2. Where a law action is tried to a court and jury and, at the close of the evidence, both plaintiff and defendant move for a directed verdict, respectively, and neither party objects to the motion of the other and thereupon the trial court directs a verdict, which the jury returns, the same does not constitute a case tried to the court without a jury, as contemplated by Section 28--27--32, N.D.C.C.

3. A demand for trial de novo in the notice of appeal to the Supreme Court is not sufficient. Such a demand must be included in the statement of the case. Sec. 28--27--32, N.D.C.C.

4. In the instant case it is held, for reasons stated in the opinion, that the evidence is sufficient to support the verdict as directed.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for defendant and appellant.

Wattam, Vogel, Vogel, Bright & Peterson, by John Kelly, Fargo, for plaintiff and respondent.

TEIGEN, Judge.

The defendant, Pembina Broadcasting Co., Inc., a corporation doing business as KTHI-TV, hereinafter referred to as KTHI-TV, has appealed from a judgment entered on a directed jury verdict in favor of the plaintiff, Northern Improvement Company, a corporation, hereinafter referred to as Northern, in the amount of $7,500, plus interest and costs.

Northern, a construction firm, constructed a parking lot, sidewalk and approach on certain land occupied by KTHI-TV as a lessee of the owner, Dalco American Enterprises, Inc., which land and improvements were mortgaged to the Marquette National Bank of Minneapolis. The total charge for this construction was $9,500. KTHI-TV paid to Northern the sum of $2,000 and this action was brought against KTHI-TV to recover the balance of $7,500. Neither Dalco American Enterprises nor the Marquette National Bank was made a party to the action.

At the outset we are faced with a procedural problem. In taking its appeal to this court, KTHI-TV made a demand, contained in the notice of appeal, for a trial de novo. No resistance nor objection to a trial de novo was made by Northern. The appellate The plaintiff, Northern, in commencing this action demanded a jury trial. A jury was in attendance and heard the evidence adduced. At the close of the plaintiff's case, the defendant, KTHI-TV, moved for a directed verdict of dismissal which was resisted by Northern. At the close of all the evidence, both parties having rested, plaintiff, Northern, moved for a directed verdict in its favor. The defendant, KTHI-TV, made no formal objection, but renewed its motion for a directed verdict of dismissal. The following day the trial court ruled from the bench on both motions, in the absence of the jury. It denied the defendant's motion and granted the plaintiff's motion. The jury was then called back, whereupon the trial court directed the jury to execute a prepared form of verdict in favor of the plaintiff, Northern, in open court. Upon this verdict and the court's order, the judgment appealed from was entered.

briefs of the respective parties were prepared, served and filed on the theory that the case was reviewable in this court de novo. At the oral argument in this court, the attorney for KTHI-TV argued that the case cannot be reviewed de novo in this court for the reason that the demand for trial de novo was not contained in the statement of the case, and, further, that the appeal does not qualify for trial de novo under Section 28--27--32, N.D.C.C., as it was tried to a jury. It also appears from the record that specifications of error were served and filed with the notice of appeal, and it is contended that our review is limited to the specifications. Following the arguments, we permitted supplemental briefs to be filed by both parties.

The plaintiff, Northern, argued that Rule 50, N.D.R.Civ.P., which provides for the motion for directed verdict, requires that the court shall submit the issues to the jury only in the event that the adverse party objects to the motion, and that the defendant, KTHI-TV, did not object to the plaintiff's motion for a directed verdict, and that both parties recognized and proceeded on the basis that there was no question of fact for the jury. Therefore, the case was one to be resolved as a matter of law by the trial court. In other words, where each of the parties makes a motion for a directed verdict and neither objects, the provision in the Rule that 'the court shall submit to the jury the issues of all claims * * * and as to such claims the motion shall be denied' is not applicable and the trial court is at liberty to rule on the motions, as was done in this case. It also points out that the transcript of the proceedings and the nature of the defendant's, KTHI-TV, appeal by initial appeal brief are consistent with such interpretation and understanding of the proceedings before the trial court.

Rule 50(a), N.D.R.Civ.P., provides in part as follows:

At the close of all of the evidence any party may move the court to direct a verdict in his favor upon one or more claims and against one or more parties. If the adverse party objects thereto, the court shall submit to the jury the issues of all claims as to which evidence has been received upon all issues and as to such claims the motion shall be denied. A motion for a directed verdict is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. * * *

We have examined the transcript of the proceedings and find that neither party objected to the motion of the other for a directed verdict.

The rules specifically provide that one who makes a motion for a directed verdict does not waive a jury trial if the motion is not granted, and this is true even though all parties to the action moved for a directed verdict. However, it is noted that the court may direct a verdict in favor of the moving party if the adverse party does not object to the motion. The rule provides that when the adverse party objects, the court shall submit the issues of all claims as Our interpretation of the rule, as set forth above, is in harmony with the holdings of a majority of the jurisdictions. 88 C.J.S. Trial § 256(b); 53 Am.Jur., Trial, Secs. 341 and 342.

to which evidence has been received to the jury and deny the motion. It follows that where both parties to an action move for a directed verdict at the close of all of the evidence, and neither objects to the motion of the other, each party by his failure to object has waived his right to a jury trial and the issues raised by the motion become questions for the court.

Some of the members of this court feel that under the provision of the rule which provides that when both parties to an action make motions for a directed verdict, each motion stands as an objection to the motion of his adversary. We do not so find. Under former practice in this State, if one made a motion for a directed verdict and failed to make reservations for a jury trial, in the event his motion for a directed verdict was denied, he was deemed to have waived a jury trial. The rule, as now constituted, prevents this interpretation. It is the movant who does not waive a jury trial by his motion if it is denied and this is true even though he has failed to make reservations for a jury trial.

Under our rule, if one or more parties make a motion for a directed verdict at the close of all of the evidence, the trial court, unless the adverse party objects, is at liberty to consider the motion or motions at that time and to rule thereon. But, if the adverse party objects, the trial court must deny the motion and, if the verdict is adverse to the movant, he may have his motion for a directed verdict reconsidered on a motion for judgment notwithstanding the verdict in accordance with Rule 50(b).

The rule, as adopted, changes the statutory provisions which the rule superseded only to the extent that the motion for a directed verdict does not constitute a waiver of a jury trial, although made without reservation. Otherwise, the rule remains the same.

Interpretations of Federal Rule 50 (a) and State rules, as found in the States of Arizona, Nevada, and Colorado, are of no assistance to us because the rules in those jurisdictions do not contain the provision allowing for objection by the adverse party. Although we adopted many of the Federal Rules of Civil Procedure verbatim, we did not adopt Rule 50(a) verbatim but preserved our former procedure under the statute and added the provision that a motion for a directed verdict does not constitute a waiver of a jury trial if the motion is denied. Whether a motion for a directed verdict shall be granted where the court is not prevented from doing so, because no objection has been made, is for the decision of the trial court based on the state of the record under well-established rules.

Prior to the adoption of the North Dakota Rules of Civil Procedure in 1957, this court held in many cases that where both parties made motions for directed verdict, issues of both law and fact became questions for determination by the trial court to be decided favorably to the movant if, as a matter of law, the record so requires. The latest case is Farm Machinery, Inc., v. Bry, N.D., 82 N.W.2d 593.

Two reasons, heretofore set forth, were advanced why this appeal is not triable de novo in this court. Either or both reasons are sufficient and will not permit a trial de novo in this court on appeal....