State Highway Commission v. Schmidt

• Decision Date: 13 May 1964
• Docket Number: No. 10465,10465
• Citation: 391 P.2d 692,143 Mont. 505
• Parties: The State of Montana, acting by and through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. Arthur SCHMIDT, of Butte, Montana, and Lucille Meinecke, of Butte, Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 692

391 P.2d 692

143 Mont. 505

The State of Montana, acting by and through the STATE HIGHWAY COMMISSION of the State of Montana Plaintiff and Appellant, v. Arthur SCHMIDT, of Butte, Montana, and Lucille Meinecke, of Butte, Montana, Defendants and Respondents.

No. 10465.

Supreme Court of Montana.

Submitted Dec. 16, 1963.

Decided April 7, 1964.

Rehearing Denied May 13, 1964.

Forrest H. Anderson, Atty. Gen., Daniel J. Sullivan, Sp. Asst. Atty. Gen. (argued), Helena, for appellant.

Doepker & Hennessey, Mark J. Doepker (argued), Butte, for respondents.

JOHN C. HARRISON, Justice.

This is an appeal from an order entered after final judgment, in a condemnation action tried before a jury, wherein the Honorable John B. McClernan directed a new trial unless within sixty days the appellant consented to an addition of $7,897.45 over the amount awarded to the respondents by the jury.

The facts are for the most part undisputed except for the contentions of the respondents, and appellant's appraisers as to what was the highest and best price for the property in question. The question presented, additur by the district court, is novel to this court.

The State of Montana, appellant acting through its State Highway Commission, condemned certain lands located in the City of Butte, Silver Bow County, Montana, for the Interstate Highway. The respondents, mother and son, began purchasing the lots in question in 1948. They testified that over a period of about eleven years they had some $10,500 invested in the land and an additional $12,000 paid out in construction costs, labor and taxes, making a total of $22,500. Prior to trial, a commission hearing was held and a joint award of $50,000 was made to respondents which award was appealed by the State Highway Commission, the appellant, in this case. A trial by jury was had and after a thorough and complete trial, at which the theories of both sides were completely presented, the jury returned a verdict of $30,000. The respondents moved for a new trial and the court made the following ruling:

'In this matter, the Court deeming the jury award inadequate, the defendants' motion for a new trial is granted, unless the Highway Commission shall within sixty (60) days consent to entry of judgment in the sum of Thirty-Seven Thousand, Eight Hundred and Ninety-Seven Dollars and Forty-five Cents ($37,897.45), in which event the said motion for a new trial shall be denied, and the balance of Commission monies now in possession of the Clerk of this Court shall be returned to the Commission forthwith, defendant landowners having heretofore waived all rights of appeal from such judgment.

'John B. McClernan, Judge'

Appellant set forth two specifications of error on appeal, but abandoned No. 1, leaving the one question set forth in specification No. 2, to be decided by this court, namely:

'The Court erred in entering its order granting a new trial if the Plaintiff die not consent to an addition of the jury verdict.'

The question of additur is here for the first time, due to the adoption by the 1961 Legislature of the New Montana Rules of Civil Procedure.

Rule 59, M.R.Civ.P., provides:

'(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons provided by the statutes of the state of Montana. On motion for a new trial in an action tried without a jury, the court may take additional testimony, amend the findings of fact and conclusions of law or make new findings and conclusions, set aside, vacate, modify or confirm any judgment that may have been entered or direct the entry of a new judgment.

'(b) Time for Motion. A motion for a new trial shall be served not later than 10 days after service of notice of the entry of the judgment.

'(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

'(d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.

'(e) Motion To Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after service of notice of the entry of the judgment.'

We are requested by respondents to interpret Rule 59(e), M.R.Civ.P., as giving the district court discretionary authority to 'alter or amend the judgment.' It is interesting to note that no authority is cited by respondents for this court's taking such action.

Here, ample evidence was submitted by the respondents for the jury's consideration, and had the jury chosen to give it the credence that respondents felt it deserved, a verdict for respondents in an amount more pleasing to them could have been sustained. However, the jury, after a full trial and after being properly instructed on the law, brought in a judgment for the respondents for less than they felt they were entitled to, causing them to move for a new trial. The trial court granted the motions, providing additur as within its discretionary power under Rule 59, M.R.Civ.P.

Prior to the adoption of the Montana Rules of Civil Procedure in 1962, this court reversed a trial court on the grounds that the award made by the jury was grossly inadequate and granted a new trial, but the question of additur was not presented. Coombes v. Letcher, 104 Mont. 371, 66 P.2d 769. See also Seibel v. Byers, 136 Mont. 39, 344 P.2d 129.

This court has since early in its history recognized remittitur, as used here as the procedural process by which a verdict of a jury is diminished by subtraction, beginning with Cunningham v. Quirk, 10 Mont. 462, 26 P. 184; Chicago T. & T. Co. v. O'Marr, 25 Mont. 242, 64 P. 506; Lewis v. Northern Pacific Ry. Co., 36 Mont. 207, 92 P. 469; State ex rel. Cohn v. Dist. Court etc., 38 Mont. 119, 99 P. 139; Harrington v. Butte, Anaconda & Pacific Ry. Co., 39 Mont. 22, 101 P. 149; Badboy v. Brown, 66 Mont. 307, 213 P. 246; Bull v. Butte Electric Ry. Co., 69 Mont. 529, 223 P. 514; Lappin v. Martin, 71 Mont. 233, 228 P. 763; Thornton v. Wallace, 85 Mont. 27, 277 P. 417; Forquer v. North, 42 Mont. 272, 273, 112 P. 439; Yergy v. Helena Light & Ry. Co., 39 Mont. 213, 102 P. 310; Griffin v. Chicago etc. Ry. Co., 67 Mont. 386, 216 P. 765; Simpson v. Miller, 97 Mont. 328, 34 P.2d 528.

Throughout these opinions this court has hinged its authority to grant same on the basis of existing statutory authority to grant a new trial.

Here the respondents (defendants in the condemnation action) moved the trial court for a new trial for the following reasons:

(1) Irregularity in the proceedings of the court by which these defendants were prevented from having a fair trial;

(2) Irregularity in the proceedings of the jury by which these said defendants were prevented from having a fair trial;

(3) Irregularity in the proceedings of the adverse party by which the defendants were prevented from having a fair trial;

(4) Insufficiency of the evidence to justify the verdict; and

(5) That the verdict is against the law.

The trial court in its order stated:

'In this matter, the Court deeming the jury award inadequate, the defendants' motion for a new trial is granted, unless the Highway Commission shall within sixty (60) days consent to the entry of judgment in the sum of Thirty-Seven Thousand, Eight Hundred and Ninety-Seven Collars and Forty-Five Cents ($37,897.45), in which event the said motion for a new trial shall be denied, and the balance of the Commission monies now in possession of the Clerk of this Court shall be returned to the Commission forthwith, defendant landowners having heretofore waived all rights of appeal from such judgment.'

The statutory law of this state sets forth the reason for granting a new trial:

R.C.M.1947, § 93-5603, provides:

'The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

'1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which either party was prevented from having a fair trial;

'2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding of any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;

'3. Accident or surprise, which ordinary prudence could not have guarded against;

'4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial;

'5. Excessive damages, appearing to have been given under the influence of passion or prejudice;

'6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;

'7. Error in law, occurring at the trial and excepted to by the party making the application;

'8. That the right to have a bill of exceptions has been lost, either through the death or incapacity of the court reporter or in any manner that was not the fault of the losing party.'

If the trial court found merit in any of respondents' allegations set forth in their motion for a new trial, it was within its power to grant same, but not to hold, as it did, that with the passage of the Montana Rules of Civil Procedure that it was given additional power under Rule 59, M.R.Civ.P., to add to...