Ostmo v. Tennyson

• Decision Date: 25 February 1941
• Docket Number: No. 6704.,6704.
• Citation: 296 N.W. 541,70 N.D. 558
• Parties: OSTMO v. TENNYSON.
• Court: North Dakota Supreme Court

70 N.D. 558

296 N.W. 541

OSTMO

v.TENNYSON.

No. 6704.

Supreme Court of North Dakota.

Feb. 25, 1941.

Syllabus by the Court.

1. On an appeal from an order denying a motion for a new trial, this court will not consider a second motion for a new trial made after the appeal and which is not included in the appeal.

2. The fact that a witness was one of the bailiffs in charge of the jury during its deliberations is not in itself reversible error in the absence of a showing of prejudice to the appellant.

3. Upon an appeal from an order denying a motion for a new trial, this court does not review any alleged errors not brought to the attention of the trial court upon the hearing of the motion.

4. Where, upon the sustaining of an objection to questions propounded by one of the litigants, this party makes an offer of proof, such offer must be sufficiently definite that the court may know therefrom what facts are sought to be introduced in order to determine whether the proffered testimony has any bearing upon the case.

5. In an action to recover damages to a truck, the offending party is not entitled to show, for the purpose of minimizing the damages, that the truck was repaired at no expense to the owner.

6. Evidence examined, and it is held, that there was sufficient evidence on all debatable issues to require the trial court to submit all these issues to the jury, and the verdict of the jury thereon is controlling.

Appeal from District Court, Grand Forks County; P. G. Swenson, Judge.

Action for personal injuries and for damage to a truck by Ernest E. Ostmo against Alfred Tennyson, wherein the defendant filed a counterclaim. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals.

Affirmed.

Fred E. Harris, of Grand Forks, for plaintiff and respondent.

Carroll E. Day, of Grand Forks, for defendant and appellant.

BURR, Chief Justice.

This is an appeal from a judgment entered January 31, 1940, and from the order denying a motion for a new trial made March 20, 1940. It is important to note the latter date because of the attitude of appellant with reference to a subsequent motion for a new trial based upon the ground of newly discovered evidence, which motion was overruled.

There was a collision between a truck being driven westward by the plaintiff on highway No. 2, and an automobile being driven northward by the defendant at right angles to the highway, and near Emerado. In his complaint, plaintiff charges the collision was caused by the negligence of the defendant and that he suffered damages to his truck in the amount of $500, and damages to his person by reason of broken ribs, loss of time, medical service, etc., so that he asked for judgment for $1,000. The defendant denies specifically that the plaintiff was the owner of the truck, denies negligence on his own part, and, as a counterclaim, he alleges the collision was caused by the negligence of the plaintiff, and that defendant suffered damages to his car in the sum of $200. The jury found in favor of the plaintiff and on January 31, 1940, judgment was entered accordingly.

In February, 1940, defendant moved to set aside the verdict and judgment, and for a new trial, basing his motion on the grounds that the court erred in sustaining objections to the defendant's offer of proof to show:

“That plaintiff had purchased the truck involved in the accident on a conditional sales contract from the Forx Motor Sales, Inc., that there was default in the terms of said contract before the accident complained of and that the plaintiff had lost possession of said vehicle before the commencement of the suit and before the trial. That the legal title and the right to possession was vested in the Forx Motor Sales, Inc., before the accident; that plaintiff suffered no damage or loss by reason of collision; that plaintiff had no legal title to said vehicle and had lost the right to possession thereof before the collision and before the trial of the said action”;

That the court erred in rejecting defendant's offer of proof “as to the actual damage or loss suffered by the plaintiff, by refusing the defendant to show the amount which plaintiff actually received for said damaged truck after the accident and before the said vehicle was repaired.

That the Court erred as a matter of law in refusing to receive the defendant's testimony to the effect that the measure of damages, if any, would be the differences in the amount of the value of the truck before the accident and the amount which plaintiff was allowed for said truck after the accident and before repair.

That the Court erred as a matter of law in this particular case in adopting the rule of cost of repairs as the measure of damages where the truck was disposed of before repair was made.

That there was irregularity in the proceedings of the Court during the conduct of the trial in this that one H. A. Ulvedal was sworn and testified as a witness for and on behalf of the plaintiff during the trial, that thereafter the said H. A. Ulvedal was sworn as a bailiff and placed in charge of the jury during their deliberations which was prejudicial to the defendant”;

That the evidence is insufficient to sustain the verdict; and that the verdict and judgment is contrary to the law, as the evidence conclusively shows as a matter of law “the plaintiff was exceeding the speed limit and was guilty of contributory negligence.”

This motion for a new trial was denied March 20, 1940. On May 17, 1940, the defendant appealed to this court as hereinbefore indicated, and on August 8 served the specifications of error on appeal, wherein he sets forth five allegations of error in the instructions to the jury, specifying certain portions of the instructions. He further specifies: “That the Court erred in instructing the Jury in this: That the instructions taken as a whole are favorable to the Plaintiff and prejudicial to the Defendant.” He alleges further error “in failing to instruct on the issue of last clear chance under the pleadings in the case.” There are further allegations to the effect that the court erred in denying the defendant's motion for judgment notwithstanding the verdict or for a new trial, and “That the verdict is not justified by the evidence, and is contrary to law.”

Upon argument in this court, appellant was met with motions to strike from the record certain papers and documents included in the statement of the case, and objections to the hearing of the appeal on the ground that the trial court had erred in extending time for the settlement of the case upon insufficient showing. We need not pass upon these motions because of the disposition which is made of the case on its merits.

On July 5 defendant made a second motion for a new trial, setting forth therein some of the grounds included in the first motion for a new trial, and, in addition, claimed newly discovered evidence. In this second motion the defendant alleges certain grounds wherein the evidence is insufficient to justify the verdict and certain rulings of the court in the admission of testimony, and additional allegations of error in instructions. The trial court denied this motion, and the defendant seeks on this appeal to review what he terms to be the errors of the court on that motion.

[1] It will be noted this application for a new trial, based upon the ground of newly discovered evidence and the additional allegation of error, was made more than three months after the motion for a new trial was denied and almost two months after the appeal had been taken, and no appeal was taken from the order of the court denying this second motion for a new trial. On this appeal, therefore, we can not consider this second application for a new trial, any of the additional grounds set forth therein, nor the order denying the motion. That order is not before us. See Paulsen v. Modern Woodmen of America, 21 N.D. 235, 130 N.W. 231;Heald et al. v. Strong, 24 N.D. 120, 138 N.W. 1114;Shockman et al. v. Ruthruff et al., 28 N.D. 597, 149 N.W. 680;Chaffee Bros. Co. v. Powers Elevator Co., 41 N.D. 94, 170 N.W. 315.

In justice to the appellant, it is but fair to say that a great deal of the delay which took place between the time of appeal and the time of presenting the case in this court was occasioned doubtless by the numerous changes of counsel for the defendant-changes that were based upon good grounds...