Westerso v. City of Williston

• Decision Date: 29 April 1950
• Docket Number: No. 7182,7182
• Parties: WESTERSO et al. v. CITY OF WILLISTON.
• Court: North Dakota Supreme Court

Page 429

42 N.W.2d 429

77 N.D. 251

WESTERSO et al. v. CITY OF WILLISTON.

No. 7182.

Supreme Court of North Dakota.

April 29, 1950.

Rehearing Denied May 17, 1950.

Syllabus by the Court.

1. A motion for a directed verdict is a necessary prerequisite to a motion for judgment notwithstanding the verdict.

2. A motion for judgment notwithstanding the verdict reviews only the court's ruling in denying a motion for a directed verdict, and a motion for judgment notwithstanding the verdict will not lie, unless a motion for a directed verdict has been made and denied.

3. The sufficiency of the evidence to sustain the verdict cannot be raised in the supreme court unless that question was raised in the trial court by a motion for a directed verdict or by a motion for a new trial.

4. A motion by the defendant to dismiss the action under Sec. 28-0801, NDRC 1943, will not result in a final determination of the merits. If such motion is granted it will leave the plaintiff free to institute another action and the denial of such motion does not furnish the necessary basis for a motion for judgment notwithstanding the verdict.

5. A motion by the defendant to dismiss an action must state precisely the grounds on which it is made and such grounds are conclusive upon the applicant both in the trial and in the appellate court and he cannot thereafter on appeal raise a ground of dismissal not stated in his motion in the court below.

6. When a motion is made to dismiss an action on the ground that the plaintiff has failed to establish his cause of action the motion must point out the particular defects in proof relied upon by the defendant.

7. Error is never presumed on appeal but must be affirmatively shown by the record and the burden of so showing it is on the party alleging it.

8. An appellant who predicates error upon the ruling of the trial court in denying his motion to dismiss the action for failure of the plaintiff to establish his cause of action must present a record on appeal showing that the motion which he presented to the trial court specified the particular defects in the proof on which he relied.

Everett E. Palmer, City Attorney, City of Williston, Williston, and Hyland & Foster, Bismarck, for appellant.

Eugene A. Burdick, Williston, for respondents.

CHRISTIANSON, Judge.

Plaintiffs brought this action against the City of Williston to recover for injury to plaintiffs' properties, alleged to have been caused by water flowing into a basement apartment owned and occupied by the plaintiffs. The complaint alleges that the City of Williston is a municipal corporation duly organized and existing under the laws of this state and that the plaintiffs at the times referred to in the complaint were and are the owners of certain real property situated in said city. That at the times mentioned in the complaint Third Avenue West was a public street within the jurisdiction and geographic limits of the defendant city; that the real property described in the complaint fronts upon and lies on the east side of said Third Avenue West and was and is used by the plaintiffs as their dwelling and place of residence. That during the times mentioned in the complaint there existed a water line from the basement of the dwelling of the plaintiffs running westerly to the water main located approximately ten feet west of the center line of said Third Avenue West directly in front of the premises owned and occupied by the plaintiffs; that on or about June 29, 1946, a heavy rain fell in the City of Williston and collected in the gutter and on the street in said Third Avenue West directly in front of said premises owned and occupied by the plaintiffs and that the collection of such water was caused principally, if not entirely, by a mound, or filling, of earth in the gutter on the west side of Third Avenue West approximately ninety feet south of the most westerly exvacation which had been made for the purpose of laying said water line to the premises of plaintiffs. That the water thus collected on the west side of Third Avenue West caused said westerly excavation to become soaked or saturated with water, and to sink, and thereby permitted and caused more water to enter said excavation and to soak and saturate the area of said excavation near the water line leading to said premises and caused the water and material in the fill of the excavation along said water line to enter the basement of the premises of the plaintiffs and that said material and water were discharged upon the floor of the basement and flooded the same and thereby caused damage to the floor and made it necessary to replace the same and caused injury to household goods and furnishings in such basement and made it necessary for plaintiffs to expend labor and monies in cleaning the basement and repairing the same and that by reason of such entry of water the plaintiffs have been damaged in the sum of $1,000. That the earth or materials in the gutter on the west side of Third Avenue West and which impounded the water overlying the most westerly excavation of the water line leading to the premises of the plaintiffs rendered Third Avenue West in a defective and obstructed condition, and such condition was caused by the neglect of the defendant city in respect to such street and in the failure of the authorities of the said city to remove said earth and materials and to maintain said gutter and street in the proper condition for the drainage of surface waters. That several weeks prior to said 29th day of June 1946 the defendant city through its officials had actual knowledge of the dangerous and obstructed condition of the said Third Avenue West and of the cause of said condition and notwithstanding such knowledge the defendant failed and neglected to remove such cause although it had the power and means to do so. It was further alleged in the complaint that on or about July 27, 1946, and within the time prescribed by law, the plaintiffs filed in the office of the city auditor a duly verified claim for damages arising from the flooding of the basement owned and occupied by the plaintiffs together with an abstract of the facts out of which such claim and this cause of action arose and that the Board of City Commissioners of the defendant city did not audit and allow said claim. The defendant interposed an answer wherein it denied the allegations of the complaint except those expressly admitted. It admitted that the City of Williston is a duly organized municipal corporation and that at all the times mentioned in the complaint Third Avenue West was and is a public street within the jurisdiction and geographic limits of the defendant city. The answer further alleged that the water discharged into plaintiffs' basement and the damage caused, if any, resulted from plaintiffs' failure to exercise due care in filling the excavation made by the plaintiffs and that such negligence of the plaintiffs contributed to and caused the damages alleged in the complaint. The answer, also, alleged that the flooding of the streets and gutter and the resultant damage, if any, to plaintiffs' basement and property were due to an excessive rainfall on June 29, 1946, and plaintiffs having previously left the excavation partially filled and exposed, all of which contributed to and was the principal cause of the damage suffered, if any. The case was tried to a jury upon the issues thus framed. Six persons were called and testified as witnesses for the plaintiff and five persons were called and testified as witnesses for the defendant. At the close of all the evidence plaintiffs' counsel moved for a directed verdict in favor of the plaintiffs. The court denied the motion and thereupon defendant's counsel said: 'I would like to make a motion to the effect that the case of the Plaintiffs be dismissed by and for the reason that they have not proved negligence on the part of the City of Williston where they would be liable or responsible for damages according to law.'

The court denied the motion of defendant's counsel. Thereupon the case was argued and submitted to the jury. The jury returned a verdict for the plaintiffs for $673.66. Thereafter the defendant moved for judgment notwithstanding the verdict. The motion was denied. Judgment was entered pursuant to the verdict and defendant has appealed from the judgment.

Appellant assigns error on, (1) the ruling of the court denying the defendant's motion for a dismissal of the action, and (2) the denial of the motion for judgment notwithstanding the verdict. Appellant also has made certain specifications of alleged insufficiency of the evidence to sustain the verdict.

The statute relating to motions for judgment notwithstanding the verdict provides: 'When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the Court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request, but upon subsequent motion, by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, or if the jury have failed to agree upon a verdict, for a directed verdict, the Court shall grant the same if, upon the evidence as it stood at the time such motion to direct a verdict was made, the moving party was entitled to such directed verdict.' 1949 Supplement NDRC, 28-1509.

Under this statute a motion for a directed verdict is a necessary prerequisite to a motion for judgment notwithstanding the verdict, and where no motion for a directed verdict has been made, the court is not authorized to grant a motion for judgment notwithstanding the verdict but is required to deny the same. Johns v. Ruff, 12 N.D. 74, 95 N.W. 440; West v. Northern Pacific Ry. Co., 13 N.D. 221, 231, 100 N.W. 254; Ennis v. Retail Merchants Ass'n...