State, for Benefit of Workmen's Compensation Fund v. Northwest Nursery, Co.
| Decision Date | 08 August 1936 |
| Docket Number | 6417 |
| Citation | 268 N.W. 689,66 N.D. 704 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; Jansonius, Judge. The defendant Hilborn appeals from an order denying a motion for a new trial.
Action by the State, for the benefit of the Workmen's Compensation Fund, and another against the Northwest Nursery Company and E. C. Hilborn. From an order denying a motion for a new trial by defendant Hilborn, he appeals.
Affirmed.
Syllabus by the Court.
1. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion and prejudice is addressed to the sound judicial discretion of the trial court; it is primarily for the trial court to determine whether excessive damages have been awarded under the influence of passion and prejudice and, if so, whether the ends of justice may be subserved by ordering a reduction of the verdict or whether a new trial must be had; and the function of the Supreme Court on appeal is to review the ruling of the trial court on the questions presented by such motion, and such review is limited to a determination whether the trial court abused its judicial discretion in making the determination which it did and thereby effected an injustice.
2. In the instant case it is held, for reasons stated in the opinion, that the trial court did not err in refusing to order a reduction of the verdict or to order a new trial on the ground that the jury under the influence of passion or prejudice returned a verdict for excessive damages.
Shure & Murphy, for appellant.
Milton K. Higgins, Assistant Attorney General, and Aloys Wartner, for respondents.
This is an appeal from an order denying a motion for a new trial by the defendant Hilborn. The action is one to recover damages for personal injuries alleged to have been sustained by the plaintiff Hoye as a result of being struck by an automobile operated by the defendant Hilborn. The facts necessary to an understanding of the issues involved on this appeal are substantially as follows. On July 25, 1933, the plaintiff Hoye was an employee of the Standard Oil Company and operating one of its service stations at the city of Harvey in this state. The Standard Oil Company had complied with the requirements of the Workmen's Compensation Law of North Dakota and as a result Hoye, as its employee, became and was insured by the Workmen's Compensation Fund. The defendant Hilborn is an officer and employee of the defendant Northwest Nursery Company. On July 25, 1933, the defendant Hilborn drove his automobile to the Standard Oil Company service station at Harvey, North Dakota, then being operated by the plaintiff Hoye. Hilborn had been having some trouble with the water pump. At the request of Hilborn, Hoye endeavored to tighten the pump packing nut on the motor which apparently was loose. Either while he was engaged in doing this work or immediately after he had finished the defendant Hilborn started his automobile. It appears from Hilborn's testimony that after he had driven the car into the service station he turned the ignition switch and stopped the motor, but that instead of leaving the gear in neutral he placed it in reverse. Apparently Hilborn had forgotten that the automobile was in gear and assumed that it was in neutral. When he stepped on the starter the automobile lurched backward and struck the plaintiff Hoye and he was squeezed between the fender of the automobile and the wall of the service station. The plaintiff Hoye sustained certain injuries. He filed claim with the Workmen's Compensation Bureau and received certain compensation from the North Dakota Workmen's Compensation Fund.
The North Dakota Workmen's Compensation Act provides that when an injury or death for which compensation is payable under the Workmen's Compensation Act shall have been sustained under circumstances creating in some other person than the North Dakota Workmen's Compensation Fund a legal liability to pay damages in respect thereto; and if the injured employee or his dependents claim and is awarded compensation under the act, that then "the North Dakota Workmen's Compensation Fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person, provided, if the Workmen's Compensation Fund shall recover from such other personal damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee or his dependents less the expenses and costs of action." Laws 1919, chap. 162, § 20; 1925 Supplement, § 396a20. This action was brought under the provisions of this section for the benefit of the Workmen's Compensation Fund and Hoye. The case was tried to a jury. Before it was submitted, the action was dismissed as against the defendant Northwest Nursery Company. The jury returned a verdict against the defendant Hilborn for $ 4375.00. The defendant Hilborn moved for a new trial on the ground, among others, of excessive damages appearing to have been given under the influence of passion and prejudice. The motion was denied and the defendant has appealed.
The sole question presented on this appeal is whether the trial court should have ordered a new trial, or a reduction of the verdict, on the ground that the jury as a result of passion and prejudice awarded excessive damages.
Our statute (§ 7660, 1925 Supplement) provides:
A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion and prejudice is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere unless there is an abuse of such discretion. Reid v. Ehr, 36 N.D. 552, 162 N.W. 903; Mason v. Underwood, 49 N.D. 243, 191 N.W. 949; Burdick v. Mann, 60 N.D. 710, 236 N.W. 340, 82 A.L.R. 1443; Halvorson v. Zimmerman, 56 N.D. 607, 218 N.W. 862.
Where a motion for a new trial is made on this ground and the trial court finds that excessive damages have been given under the influence of passion or prejudice it must further determine whether the ends of justice will be best subserved by ordering a reduction of the verdict or by ordering a new trial. "Whether there...
To continue reading
Request your trial