193 N.W. 658 | N.D. | 1922
Lead Opinion
In a civil action for damages under the Federal Employer’s Liability Act, plaintiff recovered a verdict for $3,500 against a common carrier. Defendant has appealed from the judgment.
The facts are: Defendant is the presidential agent of the carrier under the Federal Transportation Act. From about September 1st, 1919, to March 13th 1920, while the carrier was under Federal control, plaintiff worked as a car repair man in the yards of the carrier at Willis-ton. There the carrier has its division point. There, in its railroad
During the trial, plaintiff introduced into the evidence over objection two letters from a person at Niobe, North Dakota, purporting to be the agent of the Great Northern Railway Company to the effect that such agent had no record there of the car which the carrier claimed was the gondola in bad order. At the close of plaintiff’s case defendant moved for a dismissal upon grounds that plaintiff, at the time of his injury, was not employed in interstate commerce; that the cause of action pleaded was not proved; that no negligence was shown on the part of the defendant; that the injuries received were the result of a mere accident ; that plaintiff assumed the risks and was guilty of contributory negligence. At the close of the testimony, defendant again moved for a dismissal upon grounds that plaintiff, by false allegations, had deprived defendant of its constitutional right to remove the cause; that plaintiff, at the time of the injury, was not engaged in interstate commerce; that no negligence of the defendant was established; that the plaintiff assumed the risks. No motion was made for a directed verdict or for a new trial. The instructions of the trial court have neither been settled nor returned. The principal contentions of the carrier are that, upon the record, plaintiff was not employed in interstate commerce at the time of his injury; that defendant was fraudulently deprived of a right of removal; that no negligence of the defendant was established; that
Opinion.
This court has frequently held that the sufficiency of the evidence to support the verdict is not subject to review where neither a motion for a directed verdict or for a new trial has been made. Horton v. Wright, B. & S. Co. 43 N. D. 114, 116, 174 N. W. 67; Lofthouse v. Galesburg, 48 N. D. 1019, 188 N. W. 585; Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861; Erickson v. Wiper, 33 N. D. 193, 221, 225, 157 N. W. 592; Buchanan v. Occident Elevator Co. 33 N. D. 346, 350, 157 N. W. 122; Freerks v. Nurnberg, 33 N. D. 587, 595, 157 N. W. 119. At the close of plaintiffs case, and at the close of the testimony, plaintiff made a motion for dismissal. A motion for dismissal and a motion for a directed verdict are both, in fact, demurrers to the evidence. 38 Cyc. 1551, 15G5. They are, however, not the same. The former is generally less hazardous to plaintiff’s rights than the latter. Sorenson v. Smith, 65 Or. 78, 51 L.R.A.(N.S.) 612, 129 Pac. 757, 131 Pac. 1022, Ann. Cas. 1915A, 1127. The former under code procedure generally seeks a nonsuit; 7 Enc. Pl. & Pr. 829; the latter, a fact determination by the jury. The former seeks action of the court without a jury, the latter, action by the jury upon peremptory instructions. Our statutes recognize a distinction between the motions by providing for motions of dismissal and motions for directed verdicts and, the effect of each. Comp. Laws, 1913, §§ 7597, 7643; Laws 1921, chap. 133. A motion for a directed verdict supersedes a motion for dismissal or nonsuit. 26 R. C. L. 1066.
Accordingly, upon technical grounds, the sufficiency of the evidence concerning the carrier’s negligence or plaintiff’s assumption of the risk is not before this court for review. Apparently, at the trial, the defendant advisedly made its motions, as motions for dismissal. Now, before this court, by challenging the sufficiency of the evidence to justify the verdict, it seeks a final determination upon the merits of the facts pleaded and proved, whether considered under the Federal, or the state, acts. However, we are not disposed, upon mere technical grounds, to deny defendant a review of the sufficiency of such evidence to establish
It is a serious question, upon the record, whether plaintiff, at the time of his injury, was engaged in interstate commerce or in work so closely related to it as to be practically a part of it. Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556, 558, 60 L. ed. 436, L.RA.1916C, 797, 36 Sup. Ct. Rep. 188; Industrial Acci. Commission v. Davis (May 29th, 1922), 259 U. S. 182, 66 L. ed. 888, 42 Sup. Ct. Rep. 489; Southern P. Co. v. Industrial Acci. Commission, 10 A.L.R. 1181 and note, (251 U. S. 259, 64 L. ed. 258, 40 Sup. Ct. Rep. 130). The jury, pursuant to a special question, found that the plaintiff was employed in interstate commerce. However, upon the record, this was a question of law. Kanable v. Great Northern R. Co. 45 N. D. 619, 178 N. W. 1000. We are of the opinion that it is unnecessary to determine this
We are clearly of the opinion that, upon this record, defendant is not in a position to successfully assert any such contention. It has waived this right, if any it had. This record does not disclose that the defendant at any time has presented or filed any petition or bond for removal of this cause. There is no proof whatever of any fraudulent attempt by plaintiff to prevent a removal. The record simply discloses an allegation by defendant in its answer to that effect without any proof whatever to support it. Throughout the trial and before this court plaintiff has consistently maintained that plaintiff, at time of his' injury, was then engaged in an act concerning interstate commerce. The fact that plaintiff specifically alleged his cause of action to be under the Federal act, and that this thereby gave to him a prima facie right to maintain such action in the state court without a right of removal upon
The reception in evidence of the letters was error. They were incompetent until identified and agency established. But, in view of our determination herein, the error was without prejudice. They concerned, remotely, the question of whether the car involved was then engaged in interstate commerce. Error predicated concerning the instructions cannot be reviewed in the absence of their return and settlement. Otherwise, defendant objects to testimony received concerning foreign cars being in the carrier’s yards; to the introduction of a photograph showing the present condition of plaintiff’s limb; and to testimony of the plaintiff concerning directions he took or received from his coworker. These objections are without merit in view of the determination heroin made.
The judgment is affirmed with costs.
Dissenting Opinion
(dissenting). This is an action against the govern
In the opinion as written by Mr. Justice Bronson, it is said that counsel for defendant failed to move for a directed verdict or a new trial, and for that reason, ho cannot question the sufficiency of the evidence to sustain the verdict. Such has been the holding of a majority of this court on several occasions. It is not the law, because it is in direct conflict with a plain statute, which reads as follows:
Chap. 131, Laws 1913, § 9: “No motion for a new trial shall be necessary to obtain on appeal a review of any question of law or of the sufficiency of the evidence, unless before the taking of the appeal, the judge shall notify counsel of the party intending to take the appeal that he desires such motion to be made.”
The purpose of the statute is to do away with the idle act of moving for a new trial which is almost sure and certain to be denied, unless the judge himself directs a motion for a now trial.
It seems time for this court to cease piling error upon error by following majority decisions contrary to a plain statute.
Rehearing
On petition for rehearing.
The decision in this caso was filed December 30th. 1922. The case was decided by a divided court. A majority — Justices Bronson, Christianson and Grace — agreed that the judgment appealed from should be affirmed. Mr. Chief Justice Birdzell and Mr. Justice
On oral argument counsel were informed by the chief justice of the purposes for which re-argument had been ordered. After careful consideration we are agreed that the petition for rehearing filed in this case does not present any cause for which a rehearing ought to be granted. Rule 16, Rules of Practice. The petition is merely a re-argument of the questions determined by the former decision. The mere fact-that there has been a change in the membership of the court and that there is or may be, a possibility or even a probability that the new members of the court (if they were to consider the case anew) might reach different conclusions from those reached by the majority members in the former decision, does not afford any reason for a rehearing. 4 C. J. 625. The petition for rehearing is, therefore, denied.
The members of the court who participated in the former decision adhere to the views then expressed. Justices Johnson and Nuessle express no opinion as to the correctness of the conclusions reached by the majority members in the former opinions; but they agree that no cause for reheáring has been presented. In other words, the members of the court as now constituted are all of the opinion that the questions presented in the petition for rehearing were all considered and disposed
Concurrence Opinion
(concurring). While I have considerable doubt as to whether the findings of the jury on the questions of negligence and assumption of risk are supported by the evidence, I am not pre-X)ared to say that, as a matter of law, there was no actionable negligence on the part of the defendant, or that the plaintiff assumed the risk. Nor am I prepared to say that the record here establishes a situation where it can be said that prejudicial error was committed in not permitting a removal to the Federal court.
I am, also, of the opinion that the admission of the letters referred to in the principal opinion was error without prejudice.