Wolff v. Stenger
| Decision Date | 18 November 1931 |
| Docket Number | 7136. |
| Parties | WOLFF v. STENGER. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; H. R. Hanley, Judge.
Action by Gustav W. Wolff against Edward Stenger. From a judgment against him, defendant appeals.
Affirmed.
H. F Fellows and George Philip, both of Rapid City, for appellant.
Williams & Sweet, of Rapid City, for respondent.
Plaintiff was riding with his adult son and others in the son's automobile for the purpose of conveying plaintiff's wife to a hospital, and, while upon the streets of Rapid City, so traveling, the automobile driven by plaintiff's son collided with the automobile of defendant. As a result of the collision, plaintiff suffered physical injury and instituted this action to recover damages therefor. The amended answer denied negligence on the part of the defendant and pleaded that the collision was caused by the negligence of plaintiff and by the negligence of plaintiff's driver imputable to plaintiff, and "that prior to the collision alleged in said complaint, and after discovery by the driver of the automobile in which plaintiff was riding of the danger of such a collision between him and defendant, the said collision could have been avoided by plaintiff's driver by the exercise of due care on his part and by such driver reducing his rate of speed or by stopping his said automobile or by turning out of his then course of travel; but that such driver failed to exercise such due care or to exercise ordinary and reasonable care in his driving to avert the said collision."
The issues so joined came regularly on for trial to a jury. At the close of all the testimony, defendant moved for a directed verdict upon the following grounds: "The defendant moves the Court to take this case from the jury and to direct a verdict for the defendant, on the ground that there is no evidence in the case to show any negligence on the part of the defendant, Stenger, in the driving of his automobile, or in the use of the roads or streets of Rapid City, the evidence showing conclusively, and there being no evidence to the contrary, that the defendant was driving alone East Boulevard slowly, carefully, and along the usual and ordinary route of travel, in a careful and prudent manner, and that there is no evidence that the collision occurred by reason of any negligence of the defendant, and that the driver of the car in which plaintiff was riding, and the plaintiff himself, observed the approach of the defendant from the right, along the ordinary, usual traveled highway and took no precautions or measures to avoid or avert the collision, but continued in their course in a line of travel which must necessarily result in a collision in the absence of some steps to avert it, and wholly disregarded the approach of the plaintiff from the right, and were thereby guilty of contributory negligence as a matter of law; and further, that the evidence in this case clearly shows that the plaintiff and the driver of the car in which the plaintiff was riding had the last clear chance to avoid the collision."
The motion was denied, and the jury, under instructions which are in no manner challenged in this record, returned a verdict for plaintiff in the sum of $750. Thereafter, and prior to entry of judgment, defendant moved for judgment notwithstanding the verdict, setting forth as the grounds of such motion substantially the same reasons urged upon the motion for directed verdict. This motion was likewise denied and thereafter judgment was entered upon the verdict, from which judgment solely, without motion for new trial, defendant has appealed, not upon the judgment roll, but upon a settled record.
Appellant has abandoned all assignments of error, excepting only six, being assignments numbers VII, VIII, IX, XXI, XXIX, and XXX, which fall under two headings and are thus urged and argued by appellant.
Assignments VII, VIII, and IX undertake to predicate error upon whet appellant claims to have been misconduct of respondent's counsel during the trial in propounding certain interrogatories to a witness. Misconduct of counsel does not constitute "error in law, occurring at the trial" within the meaning of subdivision 7, § 2555, R. C. 1919, but falls within subdivision 1 of such section specifying as one of the causes for the granting of a new trial "irregularity in the proceedings of the court, jury, or adverse party * * * by which either party was prevented from having a fair trial." The only way in which it can be presented in the record is by affidavit (section 2556, R. C. 1919) as distinguished from a settled record, and such error cannot be reviewed upon appeal in the absence of a motion for new trial. It is not subject to review upon an appeal from the judgment solely. Keyes v. Baskerville, 42 S.D. 381, 175 N.W. 874; Warwick v. Bliss, 45 S.D. 388, 187 N.W. 715.
The second group of assignments seek to present the sufficiency of the evidence. Assignment XXI is that the court erred in overruling appellant's motion for directed verdict at the close of all the testimony. Assignment XXIX is that the court erred in overruling appellant's motion for judgment n. o. v. made after the verdict and before entry of judgment; while assignment XXX is that the evidence is insufficient to support the verdict. Accurately speaking, assignment XXX cannot be considered. The sixth ground for the granting of a new trial as specified in section 2555, R. C. 1919, is "insufficiency of the evidence to justify the verdict or other decision, or that it is against law." It is the established rule of this court that the sufficiency of the evidence to support the verdict cannot be considered on an appeal from a judgment only, save where such judgment was entered after the making and entry of an order denying new trial, in which case appeal from the judgment brings up for review the order denying new trial if error is assigned thereon without the necessity of direct appeal from such order. Keyes v. Baskerville, 42 S.D. 381, 175 N.W. 874. However, errors in law occurring at the trial (subdivision 7, § 2555, R. C. 1919) may be reviewed upon appeal from the judgment solely. Denial of motion for directed verdict or for judgment n. o. v. is deemed to come within that subdivision. It follows that, if motion for directed verdict or for judgment n. o. v. was properly made, whereby the sufficiency of the evidence was presented to the trial judge, and if the appeal is upon a settled record, as distinguished from an appeal from the judgment upon the judgment roll alone, whereby the evidence is brought before this court, and the brief affirmatively shows that it contains a statement of all the material evidence, appellant may review in this court the propriety of the ruling upon such motion or motions. Dunn v. Nat. Bank, 11 S.D. 305, 77 N.W. 111; Grasinger v. Lucas, 24 S.D. 42, 123 N.W. 77; Lyle v. Barnes, 30 S.D. 647, 139 N.W. 338; Warwick v. Bliss, 45 S.D. 388, 187 N.W. 715; Woonsocket State Bank v. Parsons, 52 S.D. 534, 219 N.W. 121; Hanson v. Lambert, 53 S.D. 34, 219 N.W. 892; Moore v. City of Edgemont, 54 S.D. 509, 223 N.W. 720.
Therefore while assignment XXX (insufficiency of the evidence to support the verdict) cannot be urged upon an appeal from the judgment only, nevertheless substantially the same questions are presented by assignments XXI and XXIX (error in not directing verdict and in not granting judgment n. o. v.) which are properly urged on appeal from the judgment solely. In Woonsocket State Bank v. Parsons, supra, this court said: "Where a motion for a directed verdict made at the close of plaintiff's case and renewed at the close of all...
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