PETE THOMPSON AND ISABELLE PARKER, PLAINTIFFS AND RESPONDENTS, v. RALPH E. LLEWELLYN, DEFENDANT AND APPELLANT.
No. 9909
Supreme Court of Montana
November 23, 1959
136 Mont. 167 | 346 P.2d 561
This bеing the first opportunity for the court to scrutinize the agreement in question here, it should not hesitate to set it aside where as hеre it is unfair and unjust.
I think the judgment should be affirmed, but as I said before I favor setting aside the divorce as well as the note and mortgage.
Submitted November 3, 1959. Decided November 23, 1959.
Jones, Olsen & Dоwlin, Billings, for appellant. Winn E. Dowlin, Billings, argued orally.
W. D. Hirst, E. W. Cosgrove, Great Falls, for respondent. No oral argument for respondent.
MR. JUSTICE CASTLES:
This is an аppeal from a judgment on a jury verdict rendered in favor of the plaintiffs. The plaintiffs, respondents herein, were engaged as a partnership in the business of hauling petroleum products.
On September 1, 1952, in the course of conducting their business, plaintiffs leased a 1936 Beall Highway tank trailer to defendant and appellant, hereinafter referred to as defendant.
Sometimе after September 1, 1952, this trailer was involved in an accident. The testimony of plaintiffs’ witnesses indicates that it was brought into the Highway Service Repair Shop west of Billings on September 3, 1952. Plaintiff Thompson did not see the trailer in its damaged condition and knew nothing оf the facts surrounding the accident. Frank Parker saw the trailer in its damaged condition, but also knew nothing of the accident. The third, аnd last of plaintiffs’ witnesses, James Beeghly, repaired the trailer and it was he who testified to the date on which the trailer was brought to the Highway Service Repair Shop. Apparently the trailer was hauled from one and one-half miles east of Mosby, Montana, where the accident presumably
The defendant did not introduce any testimony and the court then gave the only instruction offered by the plaintiffs directing the jury to find for the plaintiffs.
On appeal, plaintiffs and respondents failed to file a brief or make any oral argumеnt.
Plaintiffs’ complaint alleged in two counts, the allegation of negligence being identical in each count, that the defendant “so negligently, carelessly and wrongfully drove and operated said trailer that the same left the highway, was driven and operated into a barrow pit at the side of the highway, and allowed by defendant to overturn.”
The answer of defendant was a genеral denial. We will assume for the purpose of this opinion that this allegation of negligence is sufficient. Under a general dеnial, there is an utter failure on the part of the plaintiffs to prove an accident, much less negligence on the pаrt of the defendant.
Defendant specifies as error, among others, that the court erred in not granting a nonsuit on motion of the appellant upon the ground and for the reason that there was a complete failure of proof by the resрondents in proving any negligence of the appellant proximately causing the damage as alleged.
This case сan be summarily resolved on the basis of plaintiffs’ failure to prove their cause of action.
It is elementary that to sustain а cause of action of this nature, the plaintiff must prove both negligence and proximate cause. Whitney v. Northwest Greyhоund Lines, Inc., 125 Mont. 528, 542, 242 Pac. (2d) 257, 264, and cases cited therein.
In the instant case, plaintiffs completely failed to prove either of these essential elemеnts. From the evidence introduced in the trial court, the only proof is that the trailer was leased to the defendant and somеtime later was brought to the Highway Service Repair Shop in a damaged condition.
As this court has stated many times in the past, “An inference of negligence cannot be drawn from the bare fact
Negligence may be established by circumstantial evidеnce if such evidence is more consistent with plaintiff‘s view than with any other. Harrington v. H. D. Lee Mercantile Co., 97 Mont. 40, 62, 33 Pac. (2d) 553, 559.
In proving a cause of action by circumstantial evidence [5] ever, the circumstances must tend to prove negligence, that suсh negligence proximately caused the injury and also they must “tend to exclude any other reasonable conclusion.” Mellon v. Kelly, supra.
In the case now before us, there is not even circumstantial evidence which would tend to establish these factors.
The plаintiffs have proved only that their trailer was damaged. The jury knew nothing of the accident or the events preceding it, and therеfore could not possibly determine either directly or inferentially, whether the defendant was negligent and whether it was his negligenсe that proximately caused the accident, or even that he was operating the trailer at the time. In short, plaintiffs fаiled to establish a prima facie case entitling them to go to the jury.
It is a settled rule in this state that “whenever there is no [6] dence in support of plaintiff‘s case, or the evidеnce is so unsubstantial that the court would feel compelled to set aside a verdict, if one should be rendered for the plaintiff, a nonsuit should be granted.” Miller Insurance Agency v. Home Fire & Marine Ins. Co., 100 Mont. 551, 562, 51 Pac. (2d) 628, 630, and cases cited therein.
Here the evidence was such that a recovery could not be sustained under any reasonable view and therefore the court should have taken the case from the jury. Burns v. Fisher, 132 Mont. 26, 30, 313 Pac. (2d) 1044, 1046, 67 A.L.R. (2d) 1.
Counsel for the defendant made a timely motion for nonsuit on the basis of plaintiffs’ failure to sustain the burden of proof. The court below erred in overruling this motion.
The judgment is reversed and the cause remanded to the dis-
MR. CHIEF JUSTICE HARRISON and MR. JUSTICES ADAIR and BOTTOMLY concur.
MR. JUSTICE ANGSTMAN, (concurring in part and dissenting in part):
I conсur in the conclusion that plaintiffs failed to make out a case for the jury and that defendant‘s motion for nonsuit should have beеn sustained.
I think, however, the cause should be remanded for a new trial. There is a difference of opinion among the courts on this point. See
This court had that question before it in Gailbreath v. Armstrong, 118 Mont. 299, 167 Pac. (2d) 337, 339. In that case, plaintiff recovered verdict and judgment and there was failure to prove a certain issue vital to his right of recovery. This court, in disposing of the appeal, said:
“Therefore, while the judgment must be reversed and the cause remanded, the appropriate disposition of the cause will not be entry of judgment for defendant and interveners, but a retrial.”
I believe we should order a retrial of this cause.