Thompson v. Hannah Farmers Co-op. Elevator Co., 7600

• Decision Date: 25 October 1956
• Docket Number: No. 7600,7600
• Citation: 79 N.W.2d 31
• Parties: Walter THOMPSON, Plaintiff and Appellant, v. HANNAH FARMERS COOPERATIVE ELEVATOR COMPANY, a corporation, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 31

79 N.W.2d 31

Walter THOMPSON, Plaintiff and Appellant, v. HANNAH FARMERS COOPERATIVE ELEVATOR COMPANY, a corporation Defendant and Respondent.

No. 7600.

Supreme Court of North Dakota.

Oct. 25, 1956.

Syllabus by the Court.

1. Ordinarily the weight of the evidence and the credibility of the witnesses, in a jury case, are for the jury.

2. While there is no set formula for determining the quantum of evidence required, each case being governed by its own circumstances, a verdict or findings must be supported by substantial evidence. Under this rule a scintilla of evidence is not sufficient.

3. Conflict in the evidence that prohibits a court from interfering with the verdict of a jury upon a question of fact should be substantial and not an illusory conflict.

4. Where the inherent improbability of the evidence is so patent that no truth can be in it, the question is one of law.

5. The rule that it is for the jury to reconcile conflicting testimony of a witness does not apply where the only evidence in support of a controlling fact is that of a witness who so contradicts himself as to render findings of fact a mere guess.

6. It is only where the facts bearing upon the issues are in dispute, and the evidence offers room for reasonable difference of opinion, that the issue is for the jury. Where the evidence permits but one reasonable conclusion, the question should be determined by the court as one of law.

7. For reasons stated in the opinion, a dismissal at the close of the plaintiff's case upon the merits and with prejudice, if error, was error without prejudice to him and will not be disturbed on appeal.

8. Where witnesses have been subpoenaed in good faith and attended at the trial, a dismissal at the close of the plaintiff's case, thus making it unnecessary for the defendant to call such witnesses, does not deprive him of taxing as costs the statutory allowance for their fees and mileage. Section 31-0116 NDRC 1953 Supp. The costs of a transcript of plaintiff's testimony taken before trial and used upon the trial is properly taxable as costs against the unsuccessful party. Section 28-2606 NDRC 1943.

Day, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff and appellant.

Snowfield & Snowfield, Langdon, Traynor & Traynor, Devils Lake, for defendant and respondent.

JOHNSON, Judge.

On July 14, 1954, the plaintiff commenced an action against the defendant to recover for 840 bushels of flax valued at $6 a bushel, which he claims he hauled to the defendant elevator on the 4th and 5th of November, 1948. Just after the commencement of the trial the plaintiff requested leave to amend his complaint by changing the number of bushels for which he claimed recovery from about 800 bushels to about 1,100 bushels.

The amended complaint, if one was ever drawn, was never filed and is not a part of the record before us. However, as we shall see later, that becomes an immaterial matter.

The defendant answered denying the allegations of the plaintiff's complaint. It admitted that the plaintiff, prior to November 1948, delivered flax to the defendant elevator and alleges that such flax was paid for in full. The defendant also asserts that if any other flax was delivered by the plaintiff to the defendant in the fall of 1948, which had not been sold by the plaintiff, the defendant would be entitled to a warehouseman's lien for storage, handling and other charges prescribed by law. It also asserts that at no time has the plaintiff presented any receipt or warehouseman's receipt either demanding a return of the grain or asking for a sale thereof, nor has he offered to satisfy any warehouseman's lien to which the defendant might be entitled if the flax had been delivered as alleged by the plaintiff.

At the time that the plaintiff requested leave to amend his complaint it was stipulated and agreed that the answer of the defendant would stand as its answer to such amended complaint.

The case was tried to a jury. The defendant at the close of the plaintiff's case made a motion for a directed verdict. This was resisted and the motion denied. Thereupon the defendant made a motion for a dismissal of the action. The motion was granted and the case dismissed and the jury discharged.

The defendant in anticipation of a complete trial of the action had subpoenaed a number of witnesses. The judgment of dismissal includes costs taxed and allowed the defendant in the sum of $194.60. The plaintiff has appealed to this court from the judgment. He has specified five errors as a basis for appeal. However, he argues only two. First, did the court err in dismissing the plaintiff's action? Second, did the court err in entering judgment for $194.60 for costs?

Section 28-0801 NDRC 1943 covers the dismissal of civil actions without prejudice. Subsection 3 thereof provides:

'By the court when, upon the trial and before the final submission of the case, the plaintiff abandons it or fails to substantiate or establish his claim, cause of action, or right to recover'.

It is the contention of the defendant that no competent evidence has been presented to establish a cause of action in favor of the plaintiff, and that, therefore, the plaintiff has failed to prove a cause of action.

The judgment of dismissal is on the merits with prejudice.

The first question for our determination is whether or not there was any substantial evidence before the court requiring that the case be submitted to the jury. If there was any substantial evidence to submit to a jury, it was error for the court to dismiss the case with prejudice at the request of the defendant. If, however, there was no substantial evidence before the jury when the plaintiff rested, if it was error to dismiss the action, it was error without prejudice and will not be disturbed upon appeal.

The plaintiff's cause of action is based wholly upon his oral testimony, and documentary evidence introduced as a part of his cross-examination, and the testimony of the manager of the defendant called for cross-examination under the statute.

Ordinarily, the weight of the evidence and the credibility of the witnesses, in a jury case, are for the jury.

The plaintiff, Walter Thompson, is a farmer living between Sarles and Hannah, North Dakota, where he operates about 1,300 acres of land. On November 4, 1948, he consummated the purchase of some land from a man named Shaw. On the basis of that date he claims to remember that he started straight combining flax which he seeded in the spring of 1948 on a 79-acre tract, of which 67 acres is under cultivation, in the North Half of the Northwest Quarter (N 1/2 NW 1/4) Section 32, Township 164 North of Range 63 West of the 5th P.M. He claims his brother, Wellington Thompson, hauled in one load on November 4th. The next day the plaintiff says he hauled in 5 loads to the defendant. He said that he received scale tickets for the flax delivered to the defendant on the 4th and 5th of November. He did not produce these and offers various explanations as to this failure. His first explanation is as follows:

'Q. Did you at any time go home and look for storage tickets? A. He (referring to Tollefson, the manager of the elevator) said there was none, had to present storage tickets, unless I could bring in my tickets for two years, I told him that the first we threshed had them in pocket, had been washed, four tickets in there, but I could not get them, he had assembly sheets, had that at home, outside of that fact, if you haven't got tickets no good.'

From this testimony it is apparent that the plaintiff is attempting to quote Mr. Tollefson with reference to the requirement to present a scale or storage ticket as evidence of the fact that the elevator was supposed to have in its possession grain unaccounted for by the defendant belonging to the plaintiff. The inference of the testimony is that the scale tickets may possibly have been washed. Later he offers another explanation.

'Q. Did you at any time in 1948 and 1949 have your storage tickets at home? A. Well, no, not exactly have everything because I knowing Gordon, how he did, figure there was mistake at elevator he would find it.'

While this answer is not responsive to the question, it does indicate that the plaintiff had confidence in the elevator manager to find any evidence of any kind that he might own flax which had not been accounted for by the defendant. The witness does claim that he went back to the elevator about every two weeks during the winter of 1948-49 to look for evidence of flax, but found nothing. He also says that he was told by the manager that if he had any grain in the elevator that it would show up in the audit of the elevator records. It did not show up in the audit. The plaintiff alleged that the last conversation he had with the defendant's manager was sometime in June 1949; that he made no further inquiry concerning the flax until sometime in August 1953. As to that incident he offers a disjointed, somewhat incoherent, and rambling explanation of the search that was made and the records examined, and the failure to find a record of the flax. He was then asked:

'Q. This was conversation you had? A. Between I and Gordon.

'Q. August of 1953? A. This was August 1953, ya. And Willard come back, (referring to Willard Thompson, who had gone to another elevator owned by the defendant and about 80 feet south of the main elevator) said I can't find different book over there, could not find it, says I will go and get it, he was gone for----

'Q. Who said that? A. Gordon, he went and was gone for approximately 20 minutes, he came back again and he said I can't find that book either, and he said I am really busy, haven't time to spend any more time, you come back again and I will have it, when I came back again had not found it, but said he was still looking, so next time I went back I asked him if he had found the book yet, he said no, I said--Gordon, you haven't found that book, he...