Walters v. Gilham

• Decision Date: 20 December 1927
• Docket Number: 6171
• Parties: Dr. C. E. WALTERS, Plaintiff and respondent, v. H. A. GILHAM et ux, Defendants and appellants.
• Court: South Dakota Supreme Court

52 S.D. 82

216 N.W. 854

Dr. C. E. WALTERS, Plaintiff and respondent, v. H. A. GILHAM et ux,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Municipal Court of Sioux Falls, SD

Hon. Ransom L. Gibbs, Judge

File No. 6171—Reversed

E. E. Sullivan, Sioux Falls, SD

Attorney for Appellants.

Mundt & Mundt, Sioux Falls, SD

Attorneys for Respondent.

Opinion filed December 20, 1927

CAMPBELL, P. J.

Plaintiff brought this action for damages to his automobile in the amount of $52.05 suffered in a collision claimed to have been due to the negligence of the defendant Mrs. H. A. Gilham. Defendant Mrs. H. A. Gilham answered, admitting the collision, but counterclaimed upon the ground that it was the fault of plaintiff and asked the sum of $45 for damages to her car in the collision. The case was tried to a jury, who returned a verdict in favor of the plaintiff for damages in the amount of $1.04. Thereupon the plaintiff moved the trial court to amend and correct the verdict by changing the amount of damages therein found from $1.04. to $52.50, plus interest. This motion was duly brought on for hearing, and pursuant thereto the learned trial judge did so amend the verdict by the making of the following order:

“And the plaintiff having made a motion to the court asking that the verdict in the above-entitled matter be corrected according to the undisputed evidence and the specific instructions of the court, and it appearing that the amount of damages asked for by the plaintiff was in the sum of $52.50 and that said amount of damages was undisputed at the trial of the aforesaid case, and it further appearing that the defendants H. A. Gilham and Mrs. H. A. Gilham have put in a counterclaim for damages against the plaintiff in the sum of $45, and it appearing further that the court having instructed the jury that if they found for the plaintiff they must find for the plaintiff in the sum of $52.50, together with interest thereon at the rate of 7 per cent from and after April 1, 1925, and that if they found for the defendants H. A. Gilham and Mrs. H. A. Gilham they must find for the defendants in the sum of $45, together with interest from the aforesaid date at 7 per cent, and it further appearing and the court being fully advised that there was no dispute in the amount of damages, that it was conceded that said damages were the damages suffered, and it further appearing that the court instructed the jury that the only question for them to determine was who was negligent, liable and responsible for the accident, it further appearing that the verdict in the matter was virtually a special verdict on the question of negligence, and the jury having found for the plaintiff on said issue, it appears that the jury misapprehended the instructions of the court or misunderstood the same or disregarded the instructions of the court. Now, therefore, it is hereby ordered and directed that the verdict in the above-entitled matter for the plaintiff upon all the issues and against the defendants H. A. Gilham and Mrs. H. A. Gilham be corrected in accordance with the instructions of the court given in said matter to read with reference to the amount: In the sum of $52.50, together with interest at the rate of 7 per cent from and after April I, 1925, to September 24, 1925, in the sum of $1.75, making a total verdict for the plaintiff in the sum of $53.80.

“Dated this 3d day of October, A. D. 1925.

“By the Court:

“Ransom L. Gibbs, Judge.”

Upon the verdict as so amended judgment was entered. for plaintiff in the amount of $53.80 damages, together with costs from. which judgment and the order denying their motion for...