Thormahlen v. Foos

• Decision Date: 13 December 1968
• Docket Number: No. 10484,10484
• Citation: 83 S.D. 558,163 N.W.2d 350
• Parties: William THORMAHLEN; Townsend Lumber Company, a Montana Corporation; and, Virginia Surety Company, Inc., Plaintiffs and Respondents, v. Clarence J. FOOS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 350

163 N.W.2d 350

83 S.D. 558

William THORMAHLEN; Townsend Lumber Company, a Montana Corporation; and, Virginia Surety Company, Inc. Plaintiffs and Respondents, v. Clarence J. FOOS, Defendant and Appellant.

No. 10484.

Supreme Court of South Dakota.

Dec. 13, 1968.

Bangs, McCullen, Butler & Foye, Thomas E. Simmons, Rapid City, for defendant and appellant.

Overpeck, Hamblin & Mueller, Belle Fourche, for plaintiffs and respondents.

ROBERTS, Judge.

The collision giving rise to this litigation was between a semitrailer truck driven by William Thormahlen and owned by his employer the Townsend Lumber Company, Townsend, Montana, and a truck owned and driven by defendant. William Thormahlen seeks damages for personal injuries in the amount of $7,500. Townsend Lumber Company asks judgment for damages in the amount of $4,733.33 for loss of the use of its tractor and trailer while it was being repaired and damage to the same and cargo, and the Virginia Surety Company, Inc., insurer of the tractor and trailer owned by the Townsend Lumber Company, asks judgment as subrogee to rights of the insured against the defendant in the amount of $5,203.91 paid under its policy of insurance. The three actions were consolidated for trial.

The actions were tried to a jury. A motion for direction of verdicts was made and denied at the conclusion of the plaintiffs' case and at the conclusion of the trial. The trial resulted in separate verdicts in favor of the plaintiff in each of the actions in the exact amount of ten percent of the sum sought as set forth above.

The evidence reveals that the motor vehicles involved were, prior to the accident, proceeding easterly on Highway 212 about fifteen miles east of Belle Fourche, South Dakota. At the location of the accident two driveways intersect Highway 212 on the north which provide access to the farmyard of the defendant. The driveways are approximately 270 to 300 feet apart. Across the highway near the east driveway there is an unmarked T-intersection with a county highway to the south. Plaintiff driver at the time of the accident was enroute to Minneapolis to deliver a load of lumber for his employer. Defendant was returning to his home and his truck and trailer having an over-all length of approximately 48 feet were loaded with grain. The accident occurred when defendant was making a left turn into the east driveway and plaintiff driver was attempting to pass defendant from the rear. Plaintiff turned his tractor and trailer to the right and struck the right rear of defendant's trailer.

Plaintiffs claim that plaintiff driver after sounding his horn crossed to the left of the center lane of the highway and that defendant without warning or signal of his intention to turn left drove his truck across the highway in such a manner that the highway was suddenly blocked and plaintiff was unable to avoid a collision. Defendant contends that plaintiff driver was contributorily negligent as a matter of law because of his violation of statutes bearing on the duties of a driver to give audible warning with horn or other device before passing a preceding vehicle and to refrain from overtaking and passing at an intersection another vehicle proceeding in the same direction. There should for reasons hereinafter stated be no extended discussion of the details of the accident.

Defendant appeals from an order denying the motion of the defendant for judgment notwithstanding the verdicts and granting the application of the plaintiffs for new trial on the ground of inadequate damages. The basic grounds presented by the assignments of error are that defendant's motion for directed verdicts should have been sustained for want of evidence to support them and that the court erred in granting the application of plaintiffs for new trial.

A motion for new trial differs from a motion for directed verdict or for judgment notwithstanding a verdict and differs in result. The motion for new trial may invoke the discretion of the trial court insofar as it is claimed that the verdict is against the weight of the evidence, that the damages are excessive or inadequate, or that, for other reasons the moving party did not obtain a fair trial and, if granted, results in another trial, possibly with the introduction of different evidence. A motion for directed verdict or judgment notwithstanding the verdict presents a question of law as to whether there is any evidence, if believed, sustaining the verdict against the moving party and, if granted and followed by entry of judgment terminates the litigation.

Motion for judgment notwithstanding verdict does not preclude the filing by adverse parties of an application for new trial. Rules 50(b) and 59, Rules of Civil Procedure; Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. This phase of the law is exhaustively reviewed in an annotation in 69 A.L.R.2d 449. A leading case involving the construction of Federal Rule 50(b), from which our rule of the same number was taken verbatim except that the time for making a motion for judgment notwithstanding the verdict is changed from not later than 10 days 'after entry of judgment' to the same period...