Seibel v. Byers
| Decision Date | 16 September 1959 |
| Docket Number | No. 9710,9710 |
| Citation | 344 P.2d 129,136 Mont. 39 |
| Parties | R. A. SEIBEL, Plaintiff and Appellant, v. Neil W. BYERS and Robert Yurick, Defendants and Respondents. |
| Court | Montana Supreme Court |
Kelly and Battin, Billings, J. H. McAlear, Red Lodge, for appellant. William T. Kelly, Billings, and James H. McAlear, Red Lodge, argued orally.
Coleman, Jameson & Lamey, Wiggenhorn, Hutton, Schiltz & Sheehy, Billings, for respondent. Bruce R. Toole, and John C. Sheehy, Billings, argued orally.
At about seven o'clock on the evening of October 12, 1952, a 1952, two door, hardtop Ford Victoria automobile traveling in a westerly direction along U. S. Highway No. 87 from Hardin toward Billings, Montana, and just before reaching the point of a curve thereon about twenty-one miles west of the city limits of Hardin, left the Highway,--went through a pasture fence and then came to a stop on the prairie at a distance of approximately ninety-five steps from the highway, wrecking the Ford and resulting in shock and some injury to each of the four occupants of the car.
At the time of the accident the defendant, Neil W. Byers, and his wife, Phyllis, were riding in the front seat with Neil Byers at the wheel, while the plaintiff, R. A. Seibel and his wife, Mollie, were riding in the rear seat of the Ford.
The plaintiff, R. A. Seibel, brought this action to recover damages for personal injuries to him which he alleged were caused by the concurrent grossly negligent operation by the defendants, Neil W. Byers and Phyllis Byers, of the Ford automobile and by the defendant, Robert Yurick, of his 1951, two door, Plymouth Club Coupe automobile.
Upon observing from its lights that the Ford car had left the highway, Yurick stopped his Plymouth coupe, hurried to the disabled Ford, helped Mr. and Mrs. Seibel and Mr. and Mrs. Byers into his, Yurick's Plymouth, saw that his companion, Miss Fern Jordan secured a ride to Billings with another party that happened along the highway and then drove Mr. and Mrs. Seibel and Mr. and Mrs. Byers to St. Vincent's Hospital at Billings, where each of the four shocked and injured persons was given medical examination and treatment.
Pleadings. The plaintiff Seibel's complaint contains but one cause of action. It consists of ten separately numbered paragraphs and a prayer for relief.
In his prayer the plaintiff Seibel demands 'judgment against the defendants, and each of them jointly and severally in the sum of Thirty Thousand and no/100 ($30,000.00) Dollars general damages and Thirty thousand, five hundred seven and 40/100 ($30,507.40) Dollars special damages for impairment of his earning capacity, for his hospitalization and medical care, and for his costs herein.'
The defendant, Robert Yurick, for himself alone, by his attorneys, Schiltz and Sheehy, filed an answer admitting the allegations of the first paragraph and a portion of the allegations of the fourth paragraph of plaintiff's complaint, but denying each and every other allegation contained therein.
The defendants, Neil W. Byers and Phyllis Byers, by their attorneys, Coleman, Jameson and Lamey, filed a separate answer wherein they admit the allegations of the first paragraph of plaintiff's complaint; admit that on October 12, 1952, the defendant, Robert Yurick, was in possession of a Plymouth Tudor coupe automobile; allege that the accident occurred on a straight away on the highway about 200 or 300 yards south of a curve and deny all other allegations of the complaint.
The plaintiff, R. A. Seibel, by his attorneys, William T. Kelly and J. H. McAlear, filed a reply to the separate answer of the defendants, Neil W. Byers and Phyllis Byers, wherein plaintiff denies that he and his wife were other than invited guests of the defendants Byers and denies the accident occurred at the point alleged in the answer of the defendants Byers and allege that such accident occurred as stated in plaintiff's complaint.
The issues so presented were tried to a jury.
Dismissal as to Phyllis Byers. At the trial, plaintiff called, among others, the defendant, Phyllis Byers, as an adverse witness on behalf of plaintiff. After hearing such witness testify, the trial court, on plaintiff's motion therefor, ordered that the cause be dismissed as to the defendant, Phyllis Byers, without prejudice, hence Mrs. Byers is no longer a party to this action.
The Verdict. On November 23, 1955, the jury returned its verdict in favor of the plaintiff, R. A. Seibel, and against the defendants, Neil W. Byers and Robert Yurick, assessing plaintiff's damages at $507.40.
R.C.M.1947, § 93-5701, provides:
'When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict * * *.' Emphasis supplied.
On the same day the verdict was returned and, in strict compliance with the requirements of section 93-5701, supra, plaintiff's counsel prepared a form of final judgment 'in conformity to the verdict' which was submitted to and signed by the trial judge and duly filed and entered in the office of the clerk of the trial court. Respective counsel for the defendant, Robert Yurick, and for the defendant, Neil W. Byers, executed and endorsed on such judgment their waiver of notice of the entry thereof.
The Judgment. The judgment, so made and entered, as far as is material here, reads:
'Judgment. This action came on regularly for trial at Hardin, Big Horn County, Montana, on the 16th day of November, 1955 * * *. After hearing the evidence, the instructions of the Court, and arguments of counsel, the Jury retired to consider the verdict and subsequently returned into Court with the following verdict:
'Wherefore, by reason of the law and the premises;
'It is hereby ordered, adjudged, and decreed that the plaintiff, R. A. Seibel, do have and recover against the defendants, Neil W. Byers and Robert Yurick, jointly and severally, the sum of Five Hundred Seven and 40/100 ($507.40) Dollars, together with his costs and disbursements herein amounting to the sum of _____ ($_____) Dollars.
'Dated this 23rd day of November, 1955.
'Notice of Entry of Judgment waived.
'Dated November 23rd, 1955.
'John C. Sheehy, of counsel for Robert Yurick, defendant.
'Bruce R. Toole, attorney for defendant, Neil W. Byers.'
Emphasis supplied.
On November 28, 1955, the plaintiff Seibel filed notice of the filing of his memorandum claiming costs and disbursements in the aggregate sum of $203.40.
On December 3, 1955, the plaintiff Seibel, filed in the trial court his notice of intention to move for a new trial which, omitting the title of the court and cause, reads:
'Notice of Intention To Move For New Trial
'To: Coleman, Jameson & Lamey, Attorneys for Neil W. Byers, Defendant; and to Wiggenhorn, Hutton, Schiltz & Sheehy, Attorneys for Robert Yurick, Defendant:
'You, and each of you, Will please take notice that the Plaintiff intends to move the above-entitled Court to vacate and set aside the Verdict and Judgment, both dated November 23rd, 1955, rendered in the above-entitled action, and to grant a new trial of the said cause upon the following grounds materially affecting the substantial rights of the plaintiff, to-wit:
'1. Insufficiency of the evidence to justify the Verdict and Judgment, in that the jury decided in favor of Plaintiff's right to recover but fixed his damages only for the amount of his medical and hospital bill and expenses, on which the evidence was uncontroverted, then ignored Plaintiff's uncontroverted evidence of other special damages, and further ignored uncontroverted evidence as to his general damages for physical and mental pain and suffering, contrary to the Court's instructions and the law of the case.
'2. Said Motion will be made and based upon the records and files in the above-entitled action and upon the minutes of the Court.
'Dated this 3rd day of December, A.D., 1956.
'Kelly & Battin
J. H. McAlear
'By William T. Kelly
Attorneys for Plaintiff.'
Thus did plaintiff's counsel give notice to defendants' counsel that plaintiff intended to callenge, by motion, both the verdict rendered and the final judgment entered in conformity therewith, and that plaintiff intended to apply to the trial court for an order 'to vacate and set aside the Verdict and Judgment * * * and to grant a new trial of the said cause'. Thus would plaintiff have the trial court vacate and set aside the entire verdict and the entire judgment and have the district court order an entire new trial of the whole case.
R.C.M.1947, § 93-5603, provides when a new trial may be granted but it does not provide for nor does it permit the piecemeal granting of the motion for a new trial. Such motion for a new trial must be granted in whole or not at all. It was the common-law conception of a verdict that it was single and indivisible. Where the complaint sets forth but a single count or but a single cause of action then the verdict which determines such controversy is a single entity which must stand or fall as a whole.
In his notice of intention to move for a new trial, the plaintiff, in the instant case, stated that he intended to apply for an order that would 'vacate and set aside the Verdict and Judgment' and that would 'grant a new trial of the cause.' The notice does not even suggest that plaintiff would apply for an order that would merely grant a new trial as to that part or portion of the verdict and judgment that awards damages in the sum of $507.40.
Hearing on Motion for New Trial. After there had been...
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Goldman, Matter of
...v. Kinghorn (1939), 109 Mont. 22, 39, 93 P.2d 964; Batchoff v. Craney (1946), 119 Mont. 157, 162, 172 P.2d 308; Siebel v. Byers and Yurick (1959), 136 Mont. 39, 48, 344 P.2d 129; and State v. Jolly (1941), 112 Mont. 352, 355, 116 P.2d The Commission admits in its brief that prior to Jolly, ......
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Bohrer v. Clark
...§ 201(6). Rule 59(a), M.R.Civ.P., provides that "a new trial may be granted on all or part of the issues" in a case. Seibel v. Byers (1959), 136 Mont. 39, 344 P.2d 129, where held that the trial court cannot grant a partial new trial limited to the issue of damages alone, was decided prior ......
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