Smith v. Knutson
| Decision Date | 22 February 1949 |
| Docket Number | 7110. |
| Citation | 36 N.W.2d 323,76 N.D. 375 |
| Parties | SMITH v. KNUTSON et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. On an appeal from a judgment entered notwithstanding the verdict the only question for the appellate court is whether upon the record, as a whole, the party in whose favor such judgment was ordered and entered is entitled to judgment on the merits as a matter of law. Weber v. United Hardware & Implement Mutuals Co., N.D., 31 N.W.2d 456; First State Bank of Eckman v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann.Cas.1917D 1044. The record in the instant case is examined and; Held for reasons stated in the opinion that the motion for judgment notwithstanding the verdict should have been denied.
2. In a case where there is no eye-witness of an accident resulting in death, a person who has suffered death by the accident will be presumed to have been in the exercise of due care at the time, until the contrary is made to appear by evidence.
3. The duration of an employment depends on the intention of the parties. In case of uncertainty this intent may be sought in the circumstances surrounding the transaction, the situation and object of the parties, the nature of the employment, and any fact in the evidence bearing on the matter of intent including the practical construction placed on the agreement by the parties.
4. When a motion for judgment notwithstanding the verdict is accompanied by a motion for a new trial and the trial court orders judgment notwithstanding the verdict without passing upon the motion for a new trial and on appeal it is found the trial court erred in ordering such judgment the order granting it will be set aside and the case remanded with leave to the respondents to pursue the motion for a new trial in the district court.
Day, Lundberg & Stokes, of Grand Forks, for plaintiff and appellant.
Philip R. Bangs, of Grand Forks, for defendants and respondents.
The plaintiff brought this action to recover damages on account of the death of her son, Lloyd Smith, who was alleged to have been electrocuted in the potato warehouse of the defendants because of the negligence of the defendants. The defendants entered a general denial and claimed contributory negligence on the part of said Lloyd Smith. They also claimed that he was a trespasser and not then engaged in the performance of his duties nor acting within the scope of his employment. The trial was had to a jury. At the close of the case a motion made by the defendants for a directed verdict was denied. The jury returned a verdict for the plaintiff. Thereafter the defendants made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The district court granted the motion for judgment notwithstanding the verdict and ordered judgment for the defendants for the dismissal of the action. From that judgment this appeal is taken.
Section 28-1509, 1947 Supplement NDRC 1943, provides that motions for directed verdict when objected to shall be denied and that 'the Court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, * * * but upon subsequent motion, by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, * * * the Court shall grant the same if, upon the evidence as it stood at the time such motion to direct a verdict was made, the moving party was entitled to such directed verdict.' In Ennis v. Retail Merchants Association Mutual Fire Insurance Company, 33 N.D. 20, 36, 156 N.W. 234, 238, it is held that in addition to making the motion for a directed verdict, it is an essential prerequisite for a judgment notwithstanding the verdict under this section that
Upon an appeal from a judgment notwithstanding the verdict, therefore, the only question for consideration in the appellate court is whether the motion for a directed verdict should have been granted by the district court on the grounds then laid. Such a question must be determined upon the whole record as it stood at that time. Only if the defendants then were entitled as a matter of law on the record to a judgment should the motion for judgment notwithstanding the verdict be granted. First State Bank of Eckman v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann.Cas. 1917D, 1044; Weber v. United Hardware & Implement Mutuals Co., N.D., 31 N.W.2d 456 and cases cited.
At the close of the plaintiff's case the defendants moved for a directed verdict in favor of all of the defendants and each one separately on the grounds that the plaintiff had failed to make out a prima facie case; that no negligence was shown on the part of the defendants, that the deceased was a trespasser at the time and place of the accident, and that there was no evidence from which the jury could grant the plaintiff any relief.
At the close of the entire case this motion was renewed and, on objection, denied. In the motion for judgment notwithstanding, reference is made to these motions and as specifications of error on the ruling it is claimed:
'(a) There is no evidence of negligence on the part of the Defendants, or any of them.
'(b) The undisputed evidence, as a matter of law, establishes that Lloyd Smith was negligent, and that his negligence was a proximate cause of the accident and his death.
'(c) The undisputed evidence establishes that at the time of the accident Lloyd Smith was a trespasser on the premises where the accident occurred.
'(d) The undisputed evidence establishes that Lloyd Smith, at the time of the accident, was not an employee of the Defendants, or any of them.
'(e) The undisputed evidence establishes that at the time of the accident, the said Lloyd Smith was not acting in the course of his employment.'
It appears from the evidence that the plaintiff is a widow. That the deceased, Lloyd, was her son, a single man, 44 years of age living with her, helping her in her work about the house and assisting in her support. The defendants were operating various enterprises around Thompson, North Dakota, including the farming of some 2200 acres, raising potatoes, operating a potato warehouse, grain elevator and a service and repair station. In all these enterprises Theodore and Arthur Knutson were co-partners, except that for building the warehouse they had incorporated the Knutson Cooperative Association in which they held practically all the stock and for which the co-partnership operated the warehouse after it was completed. In their operations the defendants employed sometimes as many as one hundred men. One of these employees was Lloyd Smith. For two years prior to July 4, 1944, he had been employed by the defendants in various activities but chiefly as a mechanic repairing machinery at which he was very capable. Theodore Knutson on a pre-trial examination admitted Smith was employed on July 4, 1944 for driving and repairing tractors. He had not worked steadily but he worked for no one else during that time. He was paid by the hour. Defendants paid their help twice a month on the 5th and the 20th of the month.
There is testimony that Lloyd had been injured as a youth and frequently suffered backaches therefrom, also that he was addicted to the use of intoxicating liquors. Defendants' foreman would often call for him and take him to his work unless he was not in condition because of backache or liquor. Other times he would go to the repair shop himself. There is evidence that he worked some in the potato warehouse during winter or early spring of 1944, that he worked quite steadily through May and June, that the last work done by Lloyd prior to July 4, 1944, was on June 30, 1944, when he was riding the potato planter. The payment for that, however, was not made until July 28. On July 4, none of the defendants or their employees were in Thompson where the potato warehouse is located except Lloyd. He was working at home all that day and there is some evidence that he may have been drinking. That evening he had made a telephone call to Theodore Knutson. About 7:30 that evening he left his mother's house saying that he was going to start the pump in the warehouse. There is evidence that he had been asked to do that on a prior occasion. He was given a ride on the running board of a car to the crossing next south of the warehouse by a passerby who claimed he then smelled liquor on Lloyd's breath. The next morning Lloyd Smith was found dead on a low table or bench in the basement of the warehouse beside an electric motor and a pump that had been placed thereon with an electric wire in his right hand, the palm of which was found to be severely burned.
The evidence shows that all that spring there had been more or less water seeping into this basement which had at times been pumped out by the use of this motor and pump. The basement contained a lot of potatoes which had been turned over to the government by the defendants on a loan. Those potatoes were spoiled and a dump order had been received which was in the process of being carried out at the time of the accident. There is some dispute in the evidence as to the amount of water in the basement on the morning of July 5 when the body was found. All of the witnesses admit the...
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