Thompson v. Smith

• Decision Date: 05 June 1920
• Citation: 45 N.D. 479,178 N.W. 430
• Parties: THOMPSON v. SMITH.
• Court: North Dakota Supreme Court

45 N.D. 479

178 N.W. 430

THOMPSON

v.SMITH.

Supreme Court of North Dakota.

June 5, 1920.

Syllabus by the Court.

In this case plaintiff appeals from a judgment on a directed verdict. The verdict was directed on a motion which argues the merits of the case and covers nine pages of the record; and on the merits the motion was granted. That was error. The facts, which speak louder than words and the testimony of plaintiff were sufficient to sustain a verdict in his favor. On a motion to direct a verdict against a party his testimony should be taken as true, unless clearly false. The motion is in the nature of a demurrer to the evidence and the conceded facts. It does not question the legal sufficiency of the pleadings, which may be amended to conform to the evidence. It raises merely a question on the legal sufficiency of the evidence to sustain a verdict against the moving party. 38 Cyc. 1564-1569.

Appeal from District Court, Kidder County; J. A. Coffey, Judge.

Action by William S. Thompson against Frank O. Smith. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.E. T. Burke, of Bismarck, for appellant.

Geo. H. Musson, of Steele, and Geo. W. Thorp and Russell D. Chase, both of Jamestown, for respondent.

ROBINSON, J.

This is a suit for a personal injury resulting from the explosion of a jacketed water-heating stove in the basement of defendant's hotel at Steele, N. D. The plaintiff appeals from a judgment on a directed verdict.

The complaint avers that in April and May, 1919, at Steele, N. D., in a hotel there kept by defendant, the plaintiff was employed as janitor, porter, and general utility man, that in the basement of the hotel there was a water-heating stove from which defendant had turned off the water without the knowledge of the plaintiff, and that in accordance with his employment and the directions or permission of defendant the plaintiff started a fire in the stove, when it exploded and seriously injured him. Before the close of the trial the plaintiff moved for leave to amend the complaint to conform to the facts by adding this averment: That the explosion was caused by the negligence of the defendant in obstructing the water pipes leading from the stove to the tank, and thereby preventing the cooling circulation of the water, and yet allowing some of the water to remain in the water jacket around the stove. The court denied the motion to amend, saying:

“I think if you allege that there was some water in the stove you must prove that by direct testimony.”

The ruling, as well as the reasoning, was clearly wrong. Pleadings are to be liberally construed and may be amended by asserting allegations material to the case and conforming the pleadings to the facts proved when it does not substantially change the claim or defense. Comp. Laws, §§ 7458-7482. The gist of the complaint is that the injury was caused by defendant's negligence. The gist of the answer is that it was caused by plaintiff's negligence. The proposed amendment relates to mere description and details regarding the negligence. The motion for a directed verdict should have been expressed in one simple sentence, yet it covers nine typewritten pages of the record. It is an elaborate argument on the merits of the case, and on the merits the motion was granted. That was all erroneous. The only question then or now presented is on the sufficiency of the evidence to sustain the verdict; that is, the sufficiency of the direct and circumstantial evidence submitted by the plaintiff, regardless of any conflicting evidence.

In the basement of the hotel there was a water tank, a furnace, and a small jacketed water-heating stove. The purpose of the stove was to heat water for hotel use, at small expense, when the furnace was not in use. When the stove is in use, it is like an island completely surrounded by water. From a high-pressure storage tank the water...