*1 Appellant, v. NEIL W. BY R. A. Plaintiff SEIBEL, Respond YURICK, Defendants ERS and ROBERT ents. No. 9710. Sept. 16, 1959.
Submitted June Decided 1959. (2d) 344 Pac. *2 C. J. S. Judgments,
See § Kelly Battin, Billings, McAlear, and Lodge, J. H. Red appellant. Kelly, Billings, McAlear, William T. and James H. Lodge, argued orally. Red Lamey, Wiggenhorn, Hutton, &
Coleman, & Schiltz Jameson Toole, respondents. Bruce R. and John Sheehy, Billings, for orally. argued Sheehy, Billings, C.
MR. ADAIR: JUSTICE 12, 1952, evening on the of October
At about seven o’clock traveling Ford door, hardtop Victoria automobile 1952, two Highway No. westerly along U. S. Hardin in a direction just Montana, reaching point before Billings, and toward twenty-one city about miles west of the thereon curve — through pasture Hardin, Highway, left went limits of prairie at stop' on the a distance of and then came to fence ninety-five steps highway, wrecking from the approximately injury resulting in shock and some and each the Ford occupants the car. four defendant, Byers, Neil W. of the accident At the time Neil with seat the front riding in Phyllis, wife, Ms were and his and A.R. Seibel plaintiff, wheel, Byers while at the Ford. seat of riding in the rear wife, Mollie, were to recover action brought Seibel, R. A. plaintiff, alleged were he him which injuries to personal by the operation negligent grossly concurrent caused Ford Phyllis Byers, of the Byers Neil defendants, "W. Yurick, defendant, Robert automobile Coupe automobile. door, Plymouth Club two had left lights its the Ford car Upon observing from Plymouth coupe, hurried stopped his highway, Yurick Mr. Mrs. and Mr. Ford, helped Seibel disabled his, Plymouth, saw that his Byers Mrs. into Yurick’s Billings Miss Fern Jordan secured a ride to with companion, along highway and then party happened another Byers Mrs. Mr. and Mrs. Seibel and Mr. and St. drove Hospital Billings, each of the four shocked Vincent’s where injured given persons medical examinations and treat- *3 ment.
Pleadings. plaintiff The complaint Seibel’s contains but one cause of It separately action. consists ten of numbered relief. prayer and a paragraphs ‘1judgment against Seibel demands prayer plaintiff
In his the jointly severally defendants, and of them and in the the each ($30,000.00) Thirty Thousand and Dollars sum of no/100 Thirty thousand, and five hundred seven general special damages impair Dollars ($30,507.40) and 40/100 hospitalization earning capacity, for his and medi his ment of herein.” care, for his costs and cal Yurick, defendant, alone, by Robert for himself his
The Sheehy, admitting and filed answer attorneys, Schiltz the paragraph portion first and a of allega- the allegations paragraph plaintiff’s of complaint, the fourth but of tions every allegation other and denying each contained therein. Byers Phyllis Byers, Neil defendants, by W. their attorneys, Lamey, separate an- Coleman, Jameson and filed wherein they allegations paragraph swer the the first admit of plaintiff’s complaint; 12, 1952, the admit that on October defendant, Yurick, Plymouth possession Robert coupe allege Tudor automobile; accident occurred on straight-away yards on highway about or 300 south deny allegations complaint. a curve all other plaintiff, by attorneys, T. Seibel, R. A. William his Kelly McAlear, separate and J. H. filed a an- reply to Phyllis Byers, defendants, swer of the Neil W. Byers wherein denies that he and wife were other than guests Byers invited the defendants and denies accident point alleged occurred at in the defendants answer Byers allege plain- accident as stated in that such occurred complaint. tiff’s presented jury.
The issues so were tried to a Phyllis Byers. called, trial, plaintiff Dismissal as to At the others, defendant, Phyllis Byers, as an among adverse plaintiff. hearing such witness on behalf of After witness therefor, plaintiff’s ordered trial motion testify, the Phyllis defendant, Byers, as to that the cause dismissed Byers longer party is no Mrs. prejudice, hence without action. 23, 1955, jury returned November
The Verdict. On Seibel, plaintiff, against R. A. favor of its verdict Yurick, assessing Byers W and Robert defendants, Neil $507.40. 93-5701, provides: 1947, section R.C.M. had, judgment has been must be en-
“When conformity verdict, twenty- to the within clerk, in tered * * Em- rendition of after the hours four supplied. phasis *4 and, day was returned in strict the same
On requirements 93-5701, supra, of section with the compliance final a form of “in prepared counsel plaintiff’s signed conformity to and to the submitted verdict” in the office judge duly filed entered the trial and and the de- counsel for Bespective of of the the clerk trial court. Byers, defendant, Neil W. dendant, Yurick, Bobert and notice their of and on such waiver executed endorsed entry thereof. entered, and judgment. judgment, made so here, far as is material reads: at Har-
“Judgment. regularly This for trial action came din, day County, Montana, Horn 16th Novem- Big on the * * ber, evidence, instruc- hearing *. After Court, arguments counsel, Jury retired tions of subsequently to consider the verdict and returned into Court following with the verdict:
“(Title Cause) of Court and
“ ‘Verdict “ Jury, ‘We, action, in the find in favor above-entitled against defendant, Byers Neil W. them, and assess dam- Yurick, Bobert and each of Dol- ages ($507.40/100) at Five Hundred Seven 40/100 lars. “ day November, 1955. ‘Dated this
“ ‘(Signed) Arlis Whiteman “ ‘Foreman.’ premises; “Wherefore, and the reason law hereby adjudged, plain- ordered, and decreed that the “It defendants, tiff, Seibel, against B. A. do have and recover Byers Yurick, jointly severally, and Bobert Neil W. ($507.40) Dollars, sum Five Hundred Seven and 40/100 amounting herein together his costs and disbursements with ($-) Dollars. sum of- day November, “Dated 23rd
“E. E. Fenton “Judge. *5 Entry
“Notice of Judgment waived. 23rd,
“Dated November Sheehy, “John counsel C. Yurick, for Robert defendant. Toole, attorney R. “Bruce Byers.” defendant, Neil W. Emphasis supplied. 28, 1955, plaintiff On November filed notice of the Seibel filing his claiming memorandum costs and disbursements the ag'gregate sum of $203.40. Seibel, plaintiff
On December filed in the trial which, court his of intention omit- notice to move a new ting the title cause, of the court and reads: “Notice of Intention For To Move New Trial Coleman, “To: Lamey, Attorneys Jameson & for Neil W.
Byers, Defendant; Wiggenhorn, Hutton, and to Schütz Sheehy, & Attorneys Yurick, for Robert Defendant: “You, you, and each please Will take notice Plaintiff intends to move the above-entitled Court to vacate and set aside the Judgment, Verdict and both dated Novem- action, 23rd, 1955, in the above-entitled and to ber rendered upon grounds grant following said cause new trial of the rights materially affecting plaintiff, the substantial to- wit: Insufficiency justify
“1. of the evidence Verdict Judgment, in that the decided favor of Plaintiff’s and damages only but fixed his for the amount of right to recover expenses, bill and hospital and on which the evi- his medical uncontroverted, ignored then Plaintiff’s uncontro- dence special damages, other further ignored evidence of and verted general damages physical evidence as to uneontroverted suffering, contrary pain to the in- mental Court’s of the case. law structions upon Motion will be made and based “2. Said the records minutes upon tbe action in tbe above-entitled files Court. D., 1956. December, A. day 3rd “Dated this “Kelly & Battin McAlear J. H. Kelly
“By T. William Plaintiff.” Attorneys for coun- defendants’ give notice to Thus counsel did motion, both challenge, intended to sel that *6 in conform- entered final rendered and the the trial apply ity therewith, plaintiff that intended the Verdict and set aside an order “to court for vacate * * * trial the said new Judgment grant and to a plaintiff the trial court vacate Thus would have cause.” judgment and have the entire set aside the entire verdict and trial the whole ease. court order an entire new the district may 1947, 93-5603, provides new trial B..C.M. section when per it it granted provide be but for nor does does new trial. Such piecemeal granting mit of the motion for a not at all. in whole or granted must trial be for a new motion single that was of a verdict conception It was the common-law single forth but complaint sets Where and indivisible. de then the verdict of action single cause count or but a entity which must stand single controversy is termines such whole. or fall as a trial, plain- a new for intention to move
In his notice of apply for he intended to case, that tiff, the instant stated the Verdict and set aside “vacate an order that would cause.” “grant new trial of the that would Judgment” and apply suggest plaintiff that would not even notice does grant trial as to merely a new would an order that awards dam- the verdict and part portion in the sum ages $507.40. After had been New Trial. there
Searing Motion on hearing on proposed continuances various Seibel, trial, plaintiff notice of intention to move for a new 29, on 1955, orally open December made his motion finally for a new trial which then and there heard and argued judge. before the trial only grounds urged trial such motion for a new were 93-5603,
those set forth in subdivision 6 R.C.M. of section “Insufficiency justify viz.: the verdict or evidence other decision or that it against law.”
At hearing motion, the conclusion the trial on the days to file allowed defendants five within which answer days briefs and allowed thereafter to file his five reply brief. pertinent, far as 93-5604,
R.C.M. section so is here provides: * # * as follows: “Motions new trials shall be made fifth, for causes mentioned in the sixth or seventh subdivisions [93-5603], of said section the motion shall be made reports stenographic of the court. The official minutes trial to as a of the minutes of the referred court.” here, pro- 93-5606, pertinent as far as 1947, section
R.C.M. : vides for a new shall be had motion hearing on the
“The motion is filed when the days the notice of after ten within *7 * * court *. on the minutes of the made motion is by it shall be the hearing is continued In case practicable at the earliest same hear the duty court to of the shall the motion within thereafter, decide and the court date shall submitted. If the court the same is days after fifteen shall, time, fall the motion said motion within to decide ’’ The deemed denied. above- period, be of said expiration at the mandatory. statutes are provisions quoted grant or and omitted allow judge failed trial Here hence, provi trial, under for a new motion plaintiff’s deemed the motion was and is 93-5606, supra, of section sions denied.
47
motion
plaintiff’s
trial
of
Such determination
court
judi-
it
the exercise
trial,
involving
for new
as
does
by this
lawfully
discretion,
on review
cial
disturbed
pursuing
the course
clearly
is
that
court unless it
shown
determining
trial court abused
that
it
the motion the
did
Co.,
273,
45 Mont.
Lumber
its discretion. Sandeen v. Russell
230,
282,
Bright
Co.,
122
Hotel
59 Mont.
913;
Pac.
Slater v.
540,
Grocery Co., 72 Mont.
152;
Eclipse
196 Pac.
Gardiner v.
549, 550,
court’s exercise discretion where, here, involved, as in questions fact are where as sufficiency urged ground of the motion evidence as conflicting. Harrington it appears was that the evidence 640; Butte, Ry., 478, A. & P. 36 93 Norton v. v. Mont. Pac. Ry., 273, 165; Northern Bull Butte Great 78 Mont. 254 Pac. v. Ry., 69 529,
Electric Mont. 223 Pac. Kelley Daily 63, 80, 81, In Co., v. John R. 56 Mont. 181 Pac. 326, 332, this said: measuring the value no standard fixed law
“There is injury every personal In happiness. case of of human health or judgment of the exercise of the a wide latitude is allowed for awarded is so jury, and, appears amount unless injury shock proportion to the received grossly out of all its conscience, this substitute court cannot Ry. Co., P. Armitage Chicago, M. & St. jury. v. Ry. M. 301; Chicago, & Mont. White [P. Pac. S.] wit- appearance 561. The Co., 49 Mont. their testifying, apparent stand, their manner in nesses on the enter an esti- are all elements which into it, or lack candor credibility. present in the These elements were mate of their reproduced here. court but cannot be lower whether the “It to determine evidence was touching extent of illness was the character and worthy credit, inquiry, is their answer to seriously injured?” malingering she she Was *8 48
In City Sullivan Butte, 98, 100, 101, v. 285 Pac. 87 Mont. 184, 185, this court said:
“In this character of action the amount of is com- mitted, in instance, jury, the first to the sound discretion of the and next to the judge court, who, discretion of the of the trial passing upon the motion trial, may for a new consider anew, evidence facts, determine anew the and set aside the ver- * ** dict, if in his just. Manifestly, it is not personal injury actions, measuring by there is no stick to determine the amount awarded, be than other the intelligence impartial jury of a fair and governed by a justice; sense of necessity depend upon each case must of its peculiar own facts.” Miller, 92 150, 169, 170, (2d)
In Autio Mont. 11 Pac. 1039, 1045, this said: necessarily
“The fact is that like verdicts cases this are speculative hypothetical. But, in Houghkirk as was said Co., Hun., Y., 407, v. Delaware & 28 Hudson Canal N. difficulty ‘By is, what test are we to review them? If it is a guesswork, guess matter of can as as well we. If we evidence, difficulty are to review them the test of then the ’ is, no direct proving there is evidence the amount loss. Tiffany, Wrongful Act, See Death section 164.” Smith, 229, 241, In Tanner v. 97 33 (2d) 547, Mont. Pac. 552, this court said: consistently ‘it has adhered to the rule that
“This court juries province of fix the peculiarly within the amount of paid personal injuries, compensation unless the re- as is such to shock the sult of their deliberation conscience and ” [Citing understanding of the court.’ cases.] 321, 330, (2d) 22 Stagg, Mont. In Wise v. 311, this court said: by showing of a witness
“After contradiction incon- times, contradictory is such other sistent statements concerning subject evidence its mat- not substantive evidence before, credibility ter, witness remains a but, Evidence, jury. Jones’ Commentaries *9 165 etc., Co., Cal. Ed., 4769; Angeles, 2d Los R. Thompson v. 709; 302 748, City Co., Mo. So. R. Steele v. Kansas 207, 257 756.” S.W. Appeal. May 16, 1956,
Notice Seibel served plaintiff On of upon appeal defendants’ counsel written notice of part portion court that certain a and final “from of * * * Judgment in rendered said court [district] day plaintiff 23rd and November, 1955, of in of the favor * * * against Byers defendants, Neil W. and Robert Yurick, them, and each of to-wit: portion only in awarding plaintiff damages
That ($507.40) Dollars, sum Five Hundred Seven and 40/100 adjudging against and such plaintiff entitled thereto as Emphasis supplied. and each them.” defendants judgment money The herein is final judgment a dam- jury’s ages a verdict in a tort case wherein there awarded but one and but one cause of action. Appeal. defendant, Yurick, Motion Dismiss Robert court, argued has filed in this briefed and a motion to plaintiff’s appeal upon ground appeal dismiss that such only part portion judgment a or of the final is from entered judgment not from thereof and that such final the whole is indivisible. defendant,
In his in Neil W. printed brief this court Byers, urged argued appeal likewise that the be dismissed only part portion “from of that because taken * * * day judgment final rendered on the certain 23rd November, from 1955.”, judgment. rather than the entire 93-8003, 1, provides: R.C.M. section subdivision judgment (9731) appeal “93-8003. From what or order an may appeal supreme taken. An be taken to the he following court in the cases: from a district judgment special “1. From a final entered an action or proceedings brought commenced a district into another court.” district court from the district court Barkley Logan, 1875,
In Mont. of certain gave adjudicating use entered final decree County. appellants waters Indian Creek Jefferson but, deem- greater portion were satisfied with the decree priority ing aggrieved by part awarded themselves known over that known to the ditch as the Cedar Gulch Ditch an Ditch, they gave as the South notice of Bowman from such decree. part last-mentioned attempted appeal, supreme On such court said: ap- “The first is this: Can an determination peal judgment? part be taken to this court from a final be parts Can severed into distinct taken each, bringing times, at different without appellants appellate whole before court? The appealed judgment now,, have from a this does but *10 preclude possibility appeal by not the an them another of from portion time some other the of decree. by law, jurisdiction this is defined
“The of court appellate manner jurisdiction particular in a confer and the statutes following way by the law other than in certain cases. In no * * * jurisdiction acquired. can this be 370 of the jurisdiction acquired? “How this Section is made, filing appeal shall be provides, Practice Act an judgment the or order the of court in which with clerk stating appeal from entered, a notice appealed from is thereof, copy a same, specified part serving of or some attorney. The notice upon party, the notice the adverse jurisdiction appealed from and controls defines what is appeal from a final order appellate court. If judgment bring it not before judgment, after would made not part decree, give it court; it a a wotild if was of from this over jurisdiction the whole decree. to court appeal contemplate an “We not think the statutes do from appel- 369 380 define the part judgment. Sections a aof an 370, providing appeal how jurisdiction; and section late taken, jurisdiction. shall sections enlarge be does not this conferring jurisdiction what is inci- control, must instead dentally appeal providing in shall be said the section how taken. appeal judgment,
“When an is it must be taken a from from taking the whole it. The not statute does authorize the judgment appellate piecemeal. into an court review judgment appel- must bring the whole before fragment late court. court This cannot reverse or affirm judgment. purpose Jurisdiction this has been con- * * * ferred. juris- “We statute, hold this under has no diction to hear judgment, from final unless the whole it. The whole before appealed must give jurisdiction a/ny be court over particular portion. In Ins. 3 Pet. Co., Canter v. American [307] [7 L. Ed. 688], Mr. Justice Story says: ‘It great importance justice, to the due administration of and is in legislature, furtherance of the manifest intention of the jurisdiction in giving appellate upon court final to this de- up fragments crees that causes should not come here very great delays upon appeals. It would occasion successive oppressive expenses’.” Emphasis supplied. Nowlan, supreme In Mont. Plaisted v. ‘‘ appeals taken, can the char- said: The time within which appeals allowable, are of the notice and have been acter carefully Act, 369, 370, Pr. sections 380. The defined. Civ. fully opinion these sections has been discussed effect of Barkley Logan, deem sufficient refer and we *11 * * * expressed legislative therein as sound. If the views assembly appeal that an could be taken from a contemplated judgment, a the statutes would have been enacted part undertaking stay the execution allowing giving of an judgment, part and then the which was not a part of a provi- The absence of these could be enforced. appealed from only way. for in one It is the inten- can be accounted sions taken from the legislators appeals shall be tion of * * * judgment, part a thereof. whole and not supreme in the court “In the cases which have been beard in an States, not one which of the United we have discovered judgment. The part been from a appeal has taken is the in effect as that of language Judiciary Act same Act, appeals Organic respecting Act Practice from our judgments. final decisions denied, is Logan in rehearing Barkley
“The motion for v. in appeal this case is dismissed.” 579, 584, 220 Pac. Poor, In Lohman v. 68 Mont. 1094, 1096, this court said: appeal an
“The reasonableness of the rule which forbids is illustrated in the case judgment well judgment findings now under consideration. The plaintiff’s subject note mortgages review are proceeding, appeal in this taken there- because no has been plaintiff’s position mortgages from. If note and as to the company the lumber reference to should be sustained without appeal its of this mortgages, the condition of note and the result mortgages, and plaintiff’s note and sustain the would be to mortgages, although company’s note and the lumber defeat given that all same from the record were apparent it is object in conditions, and a like view. time, identical with under quoted, No. 27 finding above “Again, court’s the subject decree, not attacked or made incorporated appeal, that, so under notice of review operative not, it remains whatever authorized or whether ** * appeal be. of this result Barkley is well rule indicated reason “The ‘When an is taken from words: supra, these Logan, it. The does it must be from whole of statute judgment, appellate taking of a into not authorize bring by piecemeal. must whole for review court. This court re- appellate cannot before the judgment. of a Jurisdiction for fragment affirm verse or
53 decree is purpose this not been If has conferred. the whole not of its action before it know the effect how can remainder, reversing affirming portion upon or a is no jurisdiction, over which this there court has no because appeal therefrom’?”
In Todd, 82, State ex 117 158 Pac. 80, rel. Mueller v. Mont. (2d) 299, 300, party a proper this court said: “It appeal part judgment only judgment from a of a when the is divisible parts. [Citing into authorities.]”
In 5, Yol. Supplement Bancroft’s Ten Year to Bancroft’s Code Pleading Remedies, 6267, pages Practice and section 4051, 4052, 12 13, *13 really
we It but one cause action. are unable divine. was to of items, objection fatal segregating There could be no as the of permeated to all appellant the Either the was entitled whole. nothing. contract, he the he entitled claimed under or was to recognized by the as authorities we Under rules of law the nothing. The cited, we he was entitled to have are satisfied reversed, is the re- judgment of the district court cause to manded to the district with instructions enter an ’’ of affirming order the order of board commissioners. supplied. Emphasis Wyo. 232, Myers,
In F. E. Warren Mercantile v. 48 Co. (2d) 5, 6, judgment 45 said: in the the court “The case bar, entered, it of should have been net result [Citing It proceedings. controversies case.] entire appeal part a it. can be taken entirety, and no was an from of ” supplied. Emphasis [Citing cases.] Wyo. 72, (2d) 675, 677, 31 Pac. Sullivan, 47 In v. Cottier is said: language appeal, in the of notice of “The judgment finding, order and from so much appeal, ‘is ** * damage that as finds to of said court only is and awards nominal dam- assignees nominal ages therefor.’ by appeal provides law review appeal
“The direct
Supreme
theretofore
any judgment
order
removable to the
or
89-4901;
in error.
St.
section
Rev.
proceedings
Court
In
Wyo. 33, Nefsy, 29
Pac. 1008.
the statutes
Bock v.
provision
in error we find
that would
no
regard
proceedings
to
removing
to this
proceeding
seem authorize
appeal statute, however,
order. The
judgment part of a
provides
that
shall state whether
appeal
‘the notice of
appeal is
or order
part
judgment
from
whole
or a
appealed
only,
from,
specifically
if
shall
state
part
from a
part.’
what
held in Montana that such
Section 89-4902. It is
give
appeal
part
statute
from a
of a
right
does not
judgment. Barkley
296;
Plaisted v.
Logan, Mont.
Now-
* * *
lan,
“An appeal part from a ex- judgment, of a with or without press statutory authority, only part can be taken that from separable from the purposes appeal. rest for the 8 Bancroft’s Practice, Code section 6267. It that separated. must be authority separa- no We find tion of issues or findings.
“The plaintiff part has separate undertaken first grants injunction part from the question determines the damages. We assume he right had a this, only part. to do latter But he does not from the that determines the damages, but only so ‘as from much thereof finds * * * damage that the is nominal and awards nom- *14 inal damages language, needed, Construction of this if therefor.’ is it is plaintiff’s found in brief where said: the ‘On face of trespassers, the defendants record, negligently are have operated a which has damage, constructed and ditch caused no findings taken from these has been these matters are * * * conclusively now determined If the case were sent only be purpose back to the trial it could for the of de- damage termining the amount of the which plaintiff should ’ recover. “It that plaintiff separate clear undertakes to the judg- by ment damages, and, only on the appealing of from amount, prevent the decision as this court acquiring from jurisdiction permit that would the consideration the issues of nuisance, trespass. negligence, as to or judgment cannot parts. fact, into separated be thus In a separation not judgment on the of action cause for damages, but a separation findings. judgment on the causes of issues or recovery four dol- claiming damages is for of action issues includ- lars. This resulted from the decision of several ac- ing trespass or or negligence the issues as to defendants’ nuisance, and, also, issue as countability maintaining for plaintiff as the result damage to the amount of sustained findings court of defendants’ acts or omissions. The those judgment, on all the are but grounds issues find- for appeal- ings separated purpose or issues cannot for ing part. authority holding We can no from find for by negligence trespass an action caused or for nuisance, party amount can with the recovered dissatisfied fixes ” [Citing supplied. amount. Emphasis eases.] (1) conflicting as to the facts and cir-
Under the evidence immediately preceding the that obtained at and cumstances accident, (2) plaintiff’s extent of in- as to the nature and recovery, and, juries, (3) required as to the time loss, any, plaintiff if suf- (4) as to the amount of financial business, is that neither the trial general fered in his rule enter an absolute is authorized to supreme court nor the court jury, than that assessed any other sum judgment for parties unliquidated, unless the damages are as here the where prevent- purpose litigant give their consent thereto action. ing a new money stated, to recover a is an at law action
As before injuries to have been claimed personal parties wherein the can accident an automobile sustained Ill, 29, Art. Section Constitution trial. be denied 93-5301; Little, Little v. 1947, section Montana; R.C.M. (2d) 343. Neither the trial 259 Pac. court 152, 155, 156, Mont. power delete from the possesses supreme nor figures: “and assess the words jury’s ($507.40/100) Seven and Hundred at Five 40/100 *15 the entered conform or to delete Dollars” 93-5701, section words and verdict, R.C.M. ity figures:: Seven and “The sum Five Hundred 40/100' ($507.40) Dollars.” may apply attempted partial appeal
On this court this clip jury’s the scissors to from both verdict and the trial above-quoted court’s italized words. plaintiff may scope not thus fix and limit the court’s scope nor jury’s review of a second consideration case should new trial be ordered. are either excessive
Where the awarded power in the trial or the inadequatethe sole either supreme application timely proper if thereof be made, to order new trial of the entire action before an jury. supreme other Neither the trial court nor court is jury province thereby authorized to invade de prive any parties litigant right of their constitutional by jury. to a trial testimony elicited from the various at witnesses
trial conflicting, most confusing unsatisfactory. There were numerous impeachments contradictions of both the plaintiff and the by him, by witnesses called various incon- sistent statements of these witnesses which leaves us in doubt may to where truth be found and we are convinced jury that well the plaintiff’s have found testi- mony respecting injuries his claimed as well as the details of immediately what occurred before and at the time of the acci- dent exaggerated, unreasonable, to have been inconsistent with itself and testimony inconsistent with the of other witnesses jury so that the rebelled and refused to believe the rejection testimony issues. With the such of such there discredited witnesses was little else to do other than to plaintiff in smn find for the stated the verdict. A new trial, to the amount of restricted to be awarded, impeaching much of the would eliminate evidence offered entirely had and change the trial has been the character lawsuit. This would be most eminently unfair to the deny right and would them the defendants *16 in cause. presented by pleading of all the issues of fact re- all, and right jury be secured to ‘‘The shall * * Const., Ill, section Art. main inviolate Mont. therefor, On it is ordered the defendants’ motion as each defendant. appeal and is dismissed herein be HARRISON, MR. JUSTICE MR. CHIEF and JUSTICE CASTLES, concur. concurring). (specially
MR. JUSTICE BOTTOMLY confusing and particular facts, circumstances, the Under the rec- his in this conflicting testimony and witnesses plaintiff judgment, ord, appeal part of the attempted and the majority opinion, in but reached agree with the result I is therein. not all that said with (dissenting). ANGSTMAN: MR. JUSTICE majority opinion on foregoing in the much said There is I they and were involved in the ease questions involved subjects. is on those said quarrel with what have no would case, the one that in the and only question involved The appeal whether under the facts decisive question depends of that Determination be dismissed. should part only from a there can be upon whether judgment. in the stat- is found answer to that affirmative
An judgment, appeal from a expressly authorizes an ute which 93-8005. thereof.” Section specific “or some question. should settle the statute alone sought Plaintiff the state record. let us consider But suffering damages pain mental physical for general $30,000; in $30,000; the sum special the sum of in his per place month to take $300 a man the cost of for business; hospital- for medical and disposal garbage his alleged $507.40. sum of expense ization and assessed jury returned verdict damages in $507.40, being sought the sum of the exact amount expenses. medical and hospital Judgment was entered the verdict. gave
Plaintiff notice intention to vacate and set aside and judgment, trial, specifying and for a new grounds insufficiency justify of the evidence the ver- dict and plain- decided in favor of tiff’s right recover, but fixed his medi- cal hospital expenses ignored uncontradicted evidence damages. other
At hearing the time fixed for the on the motion for new *17 trial, plaintiff an oral in conformity made motion with notice of intention. The court failed to rule motion and legislative fiat, force 93-5606, 1947, section R.C.M. it was deemed denied.
Plaintiff appeal stating filed notice of he appeals that “from a part and portion of that certain final Judgment [*] * * to-wit:
“That portion awarding plaintiff damages only in to the the sum Five Hundred ($507.40) Seven Dol- 40/100 ’’ lars. Yurick,
Defendant for alone, himself a motion dis- filed to appeal upon miss the ground that is appeal from part portion or judgment is judgment not separable divisible or parts portions. into 93-8005, 1947, expressly appeal R.C.M. authorizes an
Section judgment specific part some from a “or thereof.” This court only judgment has it parts held that where a is into divisible judgment. that an will lie Wills 504, (2d) 100 50 Morris, 858; v. Mont. Pac. ex Muel- State rel. Todd, 80, (2d)
ler v. 117 Mont. 158 Pac. rely Respondents upon Poor, v. 579, Lohman 68 Mont. 220 supporting Pac. as their an 1094, contention that must judgment. be taken from the The judgment whole pointed case, out, as the court was indivisible and for that by piecemeal. reason not reviewable
60 345, 349, this Furey, 581,
In 32 81 Pac. Osmers v. Mont. possession property court in action to recover damages as to wrongful tailing its issue said “the clearly being separable case, this this from the other issues in them, including in order to would correct case, ordered a trial of the but of have new whole only.” issue agreement as to whether are not courts injury personal in a action on a verdict
rendered liability ordered as but be can stand severable so that following cases, among others hold damages. as retried except damages, respects as to will verdict, proper all that a liability, negligence and but upheld issues of only. Department May Stores as to retried ordered (2d) 830; Dixie 61 F. Atkinson v. Bell, Cir., 1932. v. 8 Co. Cir., (2d) 477; 143 Lines, Inc., 1944, F. Chesev Greyhound 5 25 1938, Supp. N. F. Strawbridge Clothier, & D. C. J. ski v. 903; (2d) 593, (2d) 81 Pac. Sarlin, 11 Cal. 325; Mondine v. 562, Ry. Co., App. (2d) 81 27 Cal. Market Street Moeller v. (2d) 496, 40 244 Fairfield, Wash. 475; Nelson v. (2d) Pac. Meter, Ky. 198, 223 v. Van 311 S.W. 244; Wall (2d) 272; Manley, 94, Hirsh 81 Ariz. (2d) v. 734, 20 A.L.R. (2d) Kelly, Ariz. 588; 79 Pac. and Palmer v. (2d) 300 Pac. Ferebee, R. Co. Norfolk Southern (2d) 344. And see Ed., 1303; L. Gasoline Products 269, 35 S. Ct. S.U. *18 Refining Co., 494, 283 U. S. 51 S. Champlin Ct. Co., v. Inc. L. Ed. 1188. Whitely, presented was Murrow An situation identical There, here, jury (2d) 657, as 125 Colo. damages exact amount claimed for verdict returned expenses and other necessitated fees because of physician’s as injuries in an automobile accident. as verdict relating to other items of dam- ignored the instructions here separate were three and ruled there dis- ages. The court whether plaintiff the first was presented; was tinct issues statute; meaning guest second, guest within question liability; third, damages. Speaking that of on and damages the issue of the court said: issue, separate, apart
“The third and from either distinct two, sum, other was in- what under the evidence and court, structions of the should be awarded dam- ages injuries. for her By court, the instructions of the jury was damages advised that should assess actual plaintiff’s expenditures hospital bills, and doctor ambulance costs, drugs, x-rays, thereto, forth, and, and so addition plaintiff, under the to instructions of the was entitled damages reasonably justly in such sum as would and com- pensate by her for her injuries, nervous shock sustained her, physical and pain anguish and mental presently in the entitled, future to be endured her. She also was according to instruction, damages the court’s perma- for her injury nent disability, earnings, as loss of well as loss earnings of future disability, reason her and also the attention, but, according costs of future medical to the court’s instruction, damages $15,585.16. her were limited to the sum of said, As we have failed to follow the court’s instruc- tion in damages.” the assessment of empowered
There the court had a rule which in substance grant the court to “all new issues” conferring right much like our statute from all any specific part” judgment. “or aof Section 93-8005. referring many
After supporting cases view that judgment was divisible the said: liability established,
“After once as to the entirely sum to be separate, awarded distinct apart therefrom and not definitely interwoven therewith. It appears jury disregarded the court’s instruction as to the measure and returned a inadequate under the evidence before it. There requiring was no error case, retrial of all of the issues in the and under the decisions, supra, we are convinced that our (a), Rule 59C supra,
62 here promulgated by as is this court a situation such to cover presented.”
The court for trial amount of remanded on the cause damages only. contrary
There taking are some cases See Clifford view. Ruocco, (2d) 327, (2d) Cal. In 66 11(3), Trial the rule page C.J.'S. New section stated as follows: may
“It every personal not be as a that said matter of law in injury insep- negligence damage case the issues of are so arably trial, granted all, blended that a new if must be granted as all the the issue to issues and cannot be confined to damages alone; question jurisdiction, but is not one of rather Accordingly, one of on discretion. an action based negligence, damages may or distinct issue of separable or liability, although from that of cir- under some may true; grant cumstances this not be and the court a new single jury trial on the have issue of when a properly proxi- determined the negligence, issue of defendant’s cause, plaintiff’s contributory negli- mate freedom from gence, although not otherwise.
“It that be commended practice has held been justice, caution, in adopted with furtherance should be result only prejudice is clear no will that where and dam- negligence issues of party, either and not where the fairly tried age inseparably are that one cannot be so blended proof other.” without liability. fully jury on the issue of
Here the was instructed to estab- placed proof plaintiff Instructions the burden of one more lish of the evidence or preponderance negligence was gross negligence charged and that acts of such injuries. also proximate cause of concerning contributory negligence advised effect of sym- regard without that should be considered case any to the passion against party for or pathy, prejudice they language jurors plain were then told action. The liability the event find could in- In fact of defendants was first established. *20 as jury structed the follows: following any of the verdicts: you
“In this find one case plaintiff; “1. For the
“2. For the defendants. you
“If on his plaintiff find the issues herein in of the favor cause of amount action, you then must fix in the the verdict plaintiff exceeding which the receive, the case entitled to no prayed sum Complaint.” for in the light indulging
This court in foregoing the would be the in violent assumptions were we to surmise that the verdict was probably prejudice, sympathy compromise the result of as did the court case, supra, though in the Clifford and this even the question liability evidence the of defendants’ was con- flicting or contradictory. simply question That made the liability jury. one for the A presumption rational more is that jury the followed the finding liability. instructions in case is one where the liability separate was and is and distinct from that damages jury and the in- was so formed. jury
The verdict itself shows that the considered the two separate being issues distinct. The verdict reads: “We, Jury, action, the in the above entitled find in favor against Defendants, Byers of the Plaintiff and the Neil W. Yurick, them, and Robert and each of and assess Plaintiff’s damages Forty at Five Hundred & & Seven Dollars Cents ($507.40) Dollars.”
In line Furey, supra, with case of Osmers v. and the above-cited, other cases I think liability the issue of is sep- damages arate and from that plaintiff distinct that of had right part from that judgment, fixing appealing without that fixing liability of defendants. far as the concerned,
So merits of the are little need jury be said. The plaintiff could not award to the medical and hospital pain expenses making also award for without suffering earnings. loss of Appeals I am Kentucky impressed with Court of what (2d) said in case, Ky. Wall 223 S.W. supra [311 736], following ‘We, It there said: “The reads: verdict jurors, signed $98.’ find for the sum It was jurors. jury nine It is evident from appellee negligent guilty found appellant and that was contributory negligence, and was entitled to recover case, he being sustained in the Such accident. upon jury was incumbent all dam- compensate him for suffering as ages suffered, is, pain he for his well jury could not expenses. as for With reason his medical recovery expenses and have him a for his medical awarded injuries recovery very for the necessi- then denied him appellant expenses. tated medical found such Once *21 injured proximate appellee’s result of was as the direct negligence, duty jury ignore it was not to law compensate appellant pain his and the facts but to expenses. We constrained as medical are well suffering as having as severable and awarded verdict as regard this to suffering proven was pain nothing appellant’s testimony.” by imcontradicted evidence shows that en- uncontradicted
Here the suffering loss and sustained some pain and dured some earnings. liberty ignore Neither jury not at evidence. was may be jury’s construed other-
can be said finding hospital expenses and medical alone as than a wise under similar facts. have held some courts section 23 III majority find of Article of our Just how That applicable here not understandable. sec- Constitution jury guarantee trials. It guarantees right does tion specific jury on issues.' trial more than one guarantee right My constitutional devotion of those who concur jury is as fervent trial jury when right accorded here majority opinion. That found defendant liable. here it any application Article III has
If section 23 of upon perform duty passing its failed to because therefore question and that remanded for new should be reversed and cause only. BRACY, Respondent, NATHANIEL H. Plaintiff corpora COMPANY, GREAT RAILWAY NORTHERN Appellant. tion, Defendant 9826. No. August April 15, 1959. Submitted 1959. Decided Rehearing
As Denial Sept. Amended on (2d) 848. notes it is said: party “And a not in appeal an action for part from that judgment amount, which fixes from or the determination items up of certain that make a whole, and are covered single judgment.” and indivisible Tucker, 186, 833, In McGehee N. C. 29 S.E. v. “The court fragmentary court said: will not entertain appeals. [Citing As premature was said Pear- authorities.] 72 N. son, J., Tucker, in Hamlin v. C. C. the court will cherry’.” not at a ‘take two bites Logan In Hampton County, Board of Com’rs of Idaho 646, 43 324, 326, appeal an taken was to the district court county an from action of board of commissioners disallow- ing Hampton’s in toto claim for services under rendered a con- A judgment tract. in the entered district allowing and from part judgment the claim in such and the whole Hampton appeal took an the Supreme thereof Court of Idaho, appeal “This which said: from judgment, not judgment findings from of fact. The is an entirety, —a money judgment for a definite Our sum. per- statutes which judgment, any specific mit an ‘or final from contemplate thereof,’ part’ do ‘a money sum. This appeal brings definite us for record before review. The most whole careful and stu- has examination the record failed any dious to show us legal grounds the district court upon which the fact, can be it is conceded sustained. record shows—in n —-that presented all the for which claims were services Upon board rendered under contract. what were void theory, district court could legal principles, consistent with others, amounts, segregate the some and disallow allow