Reid v. Ehr

• Decision Date: 28 April 1917
• Parties: MARY REID v. FRED EHR
• Court: North Dakota Supreme Court

162 N.W. 903

36 N.D. 552

MARY REID v. FRED EHR

Supreme Court of North Dakota

April 28, 1917

From an order of the District Court of Ward County granting defendant's motion for a new trial, Leighton, J plaintiff appeals.

Affirmed.

E. R Sinkler and M. O. Eide, (I. M. Oseth on oral argument), for appellant.

Litigants are entitled to the verdict of twelve jurymen on the issues and where there is evidence to support their finding, the judge is not justified in setting the verdict aside simply because he might have found a different verdict or result provided especially where the verdict returned is not palpably unjust. Steinert v. Whitcomb, 84 Conn. 262, 79 A. 675; Lifshitz v. Schwartz, 107 N.Y.S. 579.

The damages must be so excessive as to strike mankind at first blush as being beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253; Aldrich v. Palmer, 24 Cal. 516; 29 Cyc. 844, and cases cited.

Bradford & Nash, for respondent.

Where a motion for a new trial is noticed to be heard at a date prior to the expiration of the statutory period, and by consent of the parties is continued, and is finally argued and submitted after the time for appeal has expired, the final character of the judgment is suspended by such pending proceedings, and the court has jurisdiction to determine the motion, even though the time for appeal has expired. Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707.

A motion for a new trial upon the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the judicial discretion of the trial court, and its decision will not be disturbed except where an abuse thereof is clearly shown. Ibid. Blachorby v. Ginther, 34 N.D. 248, 158 N.W. 354; 2 R. C. L. §§ 182, 184, and cases cited.

CHRISTIANSON, J. GRACE, J., ROBINSON, J. dissenting.

OPINION

CHRISTIANSON, J.

This is an appeal from an order granting defendant's motion for a new trial. Plaintiff sued to recover damages for certain personal injuries alleged to have been sustained on account of the negligence of the defendant in allowing a defective electric light to remain in one of the rooms of his hotel. The evidence shows that the defendant operated the Waverly hotel in Minot in this state and that the plaintiff was injured while attempting to turn on the current in an electric light in a bathroom in such hotel, while she was standing in a bathtub partly filled with water. The electricians who testified both for the plaintiff and defendant upon the trial of the action stated that a far more violent shock would be obtained under these circumstances than if she had been standing on the floor.

The essence of plaintiff's testimony is contained in the following statement: "I got an electric shock. I could not get away from it; and when I came to myself I found myself on the floor in the bathroom behind the tub. It just drew me right up. After I found myself on the floor, I did not know what had happened. I got up after a while and was just like a wooden person and could not speak. I was burned to the bone in different places. The reason that finger is crooked is that its tendons are burned off. I suffered much pain on account of the burn. I was not sick before this. I have not been strong and healthy since then. My hand bothers me; my back bothers me, and I am nervous. I have been excessively nervous since that time."

Plaintiff also testified that shortly after the injury, Dr. Ringo of Minot was called in. He examined the hand and said the injuries were not serious, and gave her some iodine. She claimed that the application of the iodine caused her a great deal of pain, and that she thereafter went to see Dr. Newlove, who was called and testified as a witness in behalf of the plaintiff. He described her condition as follows: "She had her hand wrapped up, and complained of it being injured, and she had some bruises, I believe, on it, but I have just about forgotten where they were; but her hand that she spoke of, the muscle was damaged on the little finger, and on the thumb, and in getting a history of the case she said she had been burned by electricity, so I examined it, and that is what I found. She had some bruises on her body, but just where I have forgotten now." He also testified that she was quite excited and nervous; that the little finger and palm were burned deeply in places, about to the bone. That he could not say that he could see the bone in any place, but that it was a deep burn; also that he had noticed at the trial that one of plaintiff's little fingers was crooked. He also testified that the medical services rendered by him were worth about $ 40 or $ 50. No other medical testimony was offered for the plaintiff, and Dr. Newlove nowhere testified that any of the injuries were permanent.

The above testimony of the plaintiff and Dr. Newlove summarizes all the evidence offered by the plaintiff upon the extent and effect of the injuries received by her.

Upon the question of whether plaintiff was actually injured, there is really no dispute under the evidence in this case, as she was corroborated thereon by two of the girls who were employed in the hotel at the time, and saw plaintiff shortly after the incident occurred. There was a square conflict in the evidence as to whether the light was in good order, and also as to whether defendant had actual knowledge of any defect therein.

The jury returned a verdict in plaintiff's favor for $ 2,800. Judgment was entered and notice of entry thereof served on December 14, 1915. The defendant served notice of motion for a new trial, notice to be heard on June 13, 1916. The trial judge being absent from the state, A. G. Burr, judge of the ninth judicial district, on that day, upon the written stipulation of the attorneys of record, entered an order staying proceedings until July 18, 1916, at which time the motion came on to be heard before K. E. Leighton, judge of the eighth judicial district, who granted a new trial upon the ground of excessive damages appearing to have been given under the influence of passion or prejudice. Plaintiff appeals from this order, and assigns two reasons for a reversal; viz. (1) That more than six months had elapsed since the service of notice of entry of judgment, and that, as no appeal from the judgment had been taken, the action was no longer pending, and the court was without authority to entertain a motion for a new trial.

(2) That if the court had authority to entertain such motion, it was an abuse of discretion to grant a new trial.

The first point was considered by this court in Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707. In that case we said: "Where a motion for a new trial is duly noticed to be heard at a date prior to the expiration of time for appeal from the judgment, but continued by consent of the parties and finally submitted and determined after the time for appeal from the judgment has expired, the final character of the judgment is suspended by the pending proceedings, and the court has jurisdiction to determine the motion for a new trial, even though the time for appeal from the judgment has expired."

On oral argument, appellant's counsel conceded that Skaar v. Eppeland, supra, ruled the first point raised, and that he did not care to argue or urge the same any further in this case. Consequently we shall adopt appellant's view and will deem the point abandoned, and devote no more time or space to its consideration.

In a memorandum filed with the order granting a new trial, the trial court said:

"The important question in this case is whether or not the verdict was not excessive, and that the same was not the result of passion and prejudice on the part of the jury. Considering the nature of the injury plaintiff received, as well as the testimony bearing upon the question of permanent injury, I am unable to see how the jury could ever give a verdict for the amount which they did, unless the jury was unduly influenced or their prejudices aroused.

"I do not believe that anyone considering all the circumstances and all the testimony in this case could conscientiously say that plaintiff had been damaged in any such amount as the jury found in this action. Being of that opinion I cannot do otherwise under the law in this state except to grant a new trial."

Under the laws of this state, a verdict may be vacated and a new trial granted, among others, for the following causes: (1) Excessive damages appearing to have been given under the influence of passion or prejudice; (2) insufficiency of the evidence to justify the verdict. Comp. Laws 1913, § 7660.

These grounds are closely analogous. Both of them involve a consideration of the sufficiency of the evidence. In determining a motion upon either ground the court must weigh the evidence. Hayne, New Tr. & App. § 95. This necessarily involves an exercise by the trial judge of the superior knowledge possessed by him as to matters incident to the trial itself. A motion for a new trial on either ground therefore is addressed to the sound judicial discretion of the trial court, and its ruling will be disturbed only when an abuse of discretion is clearly shown. 4 C. J. 833-835; Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707, 2 R. C. L. (Appeal & Error) § 182. And an appellate court is especially reluctant to interfere with such ruling when a new trial has been granted, as this merely affords both parties another opportunity to present their respective claims to another jury.

There is no serious question as to the rules of law which should guide a trial court in determining, or an...