69 N.W. 195 | N.D. | 1896
In this case the jury returned a verdict for the plaintiff, whereupon the trial court, upon its own motion, and before the jury was discharged, entered an order vacating the verdict, and granting a new trial of the action. The order recites that it is made “for the reason that the court is of the opinion that there has been by the jury such á plain disregard of the evidence in the case as to satisfy the court that the verdict was rendered under the influence of prejudice, and also for the reason that
The action is upon an account, and the complaint embraces three items of account, which are severally set out as independent causes of action. The controversy in this court, as counsel concedes, turns wholly upon the third and last cause of action stated in the complaint. The item in question consists of a claim for the board, care, and maintenance of a minor son of the defendant, which service was rendered by the defendant’s father-in-law under the following circumstances: The mother of the child, who was the wife of the defendant, died on the 3rd day of September, 1891, leaving the child in question, who was then about four years of age. After the funeral, the father-in-law (the grandfather of the boy) took the boy home, and kept him until April, 1895, and then the boy was taken to the house of another son, and was there kept for a period of 32 weeks. The testimony shows that the grandfather paid the boy’s board during said period of 32 weeks at the rate of $2 a week. There is no claim that the defendant ever paid anything for the boy’s keeping, or for the sum paid out by his father-in-law for the boy’s board as above stated. The testimony is undisputed that the care and maintenance of the boy was reasonably worth the sum of two dollars per week. The undisputed testimony further shows that the claim in question was sold and transferred to the plaintiff before this action was brought, and that this plaintiff paid $275 for the claim. For this claim the jury returned a verdict for plaintiff for the sum of $287, the face of the claim being $551.25. At common law the claim of a relative for the support of a minor child, in the absence of an agreement for compensation, would not be sustained. This principle is voiced in § 99 of what is known as the “Field Code of New York,” and the same provision is incorporated in the code of California. In this state the
Turning now to the charge of the court to the jury, we find that, after reading to the jury § 2789, Rev. Codes, the court proceeded at some length to charge the jury relative to the law of the case. We think the law as given to the jury was correctly stated, and properly applied to the evidence in the case. The court squarely submitted the question to the jury whether an agreement to compensate for services rendered to the child by its grandfather was ever made, and the jury was distinctly instructed to find against the plaintiff on this item unless the plaintiff established the agreement to compensate by a preponderance of testimony. We cannot, therefore, concur in the view of the trial
Applying the law to the facts in the record, we are compelled to hold that the order vacating the verdict and granting a new trial was made erroneously, and without warrant of law, and that it must be reversed. But it must not be understood from what we have said that the defendant has been cut off from his statutory right to move for a new trial by the premature action of the trial court in the premises. If the defendant desires to apply for a new trial by motion in the court below, it would only be simple justice to him to allow him to do so, even at this late date, and the court below ought, in justice to the defendant, to extend time to him for that purpose, if such extension becomes necessary.
The order appealed from is reversed.
Note — When the verdict is either without support of evidence or contrary to