Opinion
Opinion filed February 20, 1930.
Appeal from the District Court of Divide County, Lowe, J.
Affirmed.
E.R. Sinkler and G.O. Brekke, for appellant.
"The instructions of the court, though erroneous, being the law of the case, should be followed by the jury." Freel v. Pietrsch, 22 N.D. 114, 132 N.W. 779.
"Where the instructions were not excepted to by either party, they became the law of the case, and, the verdict being in clear disregard thereof, the trial court was bound to set it aside and grant a new trial." Schmidt v. Carpenter, 131 N.W. 723; Lemont v. Thayer, 162 N.W. 742; Hertsog v. Red-E-Oil Co. 216 N.W. 333.
It is reversible error for a court to give an instruction which correctly states the law when the record contains evidence to which the requested instruction is applicable, unless the law is fully covered in some part of the instruction given. Thompson, Trials, §§ 2347 et seq.
"Violation of rules or orders designed especially to safeguard the employees is generally held, as a matter of fact, to constitute serious and wilful misconduct, and to debar the employee, or his dependents, in case of death, from any right to recover compensation." 4 A.L.R. 119.
"Where a servant voluntarily of his own motion exposes himself outside the scope of his employment without or against the order of the master or vice principal and is injured thereby the master is not liable." 24 Cyc. 1224.
"If the employee is in a place where he is prohibited from being by positive orders of his employer by reason of the danger, he cannot be said, while in the forbidden place, to be acting in the course of his employment." Fournier's Case, 113 A. 270. See also 32 A.L.R. 804; 26 A.L.R. 166; 16 A.L.R. 1169; Ex parte Woodward Iron Co. 102 So. 103; Big Elkhorn Coal Co. v. Burke, 267 S.W. 142.
"An unaccepted offer by way of compromise is not evidence against the party making it." 20 Century Dig. § 745 (Evidence).
"An offer or attempt to compromise or settle a matter in dispute cannot be given in evidence against the party by whom such offer or attempt was made." Kassing v. Walter, 65 N.W. 832; Boylan v. McMillan, 114 N.W. 630; Montgomery v. Allen, 48 N.W. 153; Busch v. S.D.C.R. Co. 135 N.W. 757.
Jury cannot disregard positive testimony of unimpeached witness unless its improbability furnishes reasonable grounds for so doing. Campbell v. Can. Northern R. Co. (Minn.) 144 N.W. 772.
George P. Homnes, for respondent.
"Where it is apparent from the whole testimony that the verdict is correct on the merits, error committed by the trial court in the giving of instructions is harmless." 38 Cyc. 1811.
"Where the verdict is so strongly against the weight of evidence as to shock the court's sense of justice, or indicate that the jury were influenced by passion, prejudice or other improper motive, a new trial will presumably be granted." . . . Where the evidence was so conflicting that different persons might honestly and intelligently have formed different conclusions therefrom, the verdict should stand. 29 Cyc. 822.
"A party making a motion for a new trial is bound by the reasons assigned therein and can urge no other on appeal." 29 Cyc. 944; Kanable v. Great Northern R. Co. 45 N.D. 619, 178 N.W. 999; Odell v. Hiney, 190 N.W. 774; State v. Glass, 29 N.D. 620, 151 N.W. 229.
This is the second appeal in this case. See State ex rel. Storm v. Hought, 56 N.D. 663, 58 A.L.R. 186, 219 N.W. 213. The three defendants had made a motion for judgment non obstante veredicto or for a new trial and "judgment non obstante was ordered in favor of all the defendants except Kohlman, and as to him judgment was entered on the verdict." Kohlman appealed from the judgment and from the order denying the motion for a new trial; and the plaintiff "appealed from the order granting judgment non obstante as to the defendants James Hought and David Hought."
This court reversed the lower court in granting judgment non obstante in favor of the defendants James Hought and David Hought; but the lower court was not reversed in denying judgment non obstante in favor of Kohlman or in refusing to grant him a new trial.
In our former opinion we said: "The principal question in both appeals concerns the sufficiency of the evidence; in the appeal of Kohlman, the sufficiency of the evidence to establish that the injury was received in the course of the employment of the deceased, and, in the appeal of the plaintiff, the sufficiency of the evidence to establish that the respondents were employers."
So far as the defendants David Hought and James Hought are concerned the reversal of the lower court in granting them judgment did not dispose of the motion for a new trial. We specifically held that our judgment was "without prejudice to the rights of the defendants (defendants Hought) to obtain a ruling of the trial court on that portion of their motion — the motion for a new trial, — which was undisposed of."
The defendants then appeared in the lower court urging their motion for a new trial, which motion was denied. It is from the order denying this motion the defendants Hought appeal.
It is manifest that at the hearing on the motion for a new trial only such grounds could be presented as were set forth in the motion when it was made. Parties intending to make a motion for a new trial must make the motion within sixty days after the return of the verdict (Comp. Laws, § 7664), unless on the ground of newly discovered evidence which is not involved here. The motion was not heard until at least a year after the verdict was returned. It is clear therefore the applicants cannot set forth new grounds at the time of the hearing. The motion for a new trial, when made, must present all the grounds relied upon. The appellate court cannot hear other, O'Dell v. Hiney, 49 N.D. 160, 190 N.W. 774, nor can the trial court, otherwise a litigant could present new grounds up to the time the trial court disposed of the motion. Unless grounds are included in the motion they are deemed abandoned. The lower court, therefore, in considering the motion for a new trial, could consider only the grounds set forth in the motion when it was made. Hence specification 28 presented to the court when the motion was heard cannot be considered.
The two main points involved in the appeal were whether the employee received his injuries in the course of his employment; and whether the Houghts were employers. With reference to the Houghts there was involved alleged error "in permitting evidence to be introduced showing that there were negotiations for settlement," and the comment of counsel upon such evidence. In the former opinion (page 672 of 56 N.D.) we review the evidence connecting the Houghts with the employment. We held there was sufficient evidence introduced with respect to both main questions justifying the submission of the case to the jury — that is there was evidence upon which the jury could find either way as to whether the deceased received his injuries in the course of his employment and as to the Houghts being employers. There being such evidence we held the court could not render judgment notwithstanding the verdict in favor of the Houghts. We passed upon the alleged error in permitting evidence dealing with negotiations for settlement and with the comment thereon. We said:
"A further contention is advanced on behalf of the defendants to the effect that the court erred in permitting evidence to be introduced showing that there were negotiations for settlement. The evidence was that Kohlman immediately wired James Hought, that he came and that the two went to see Mrs. Storm for the purpose of effecting a settlement. In view of the issue tendered with respect to the change of ownership and the personnel of the employers, this evidence was clearly admissible and it was proper to comment upon it, as was done, in the argument to the jury."
Thus we held that the evidence was competent on the question of whether the Houghts were employers. This became the law of the case and therefore, when the question of a new trial was presented to the lower court there was left to the court to determine, not whether there was any evidence on the two main points, but whether the evidence was sufficient to justify the verdict. A trial court may be confronted with a situation where there is evidence, and therefore the court cannot as a matter of law say the verdict should have been rendered otherwise, and yet the evidence be such that the court in its opinion may say it is insufficient to satisfy the ends of justice and therefore another jury should pass upon the same question. This was the situation when the lower court passed upon the appellants' motion for a new trial. It was useless therefore to urge the question of error in receiving the evidence dealing with the so-called negotiations for settlement or alleged error on permitting comment. These points were settled.
This leaves but one question — though there was evidence in the case so the court could not grant judgment notwithstanding the verdict nevertheless is such evidence sufficient to justify the verdict? We must remember this matter was before the Workmen's Compensation Bureau in the first instance. The bureau held the deceased received his injuries in the course of his employment and that the Houghts were employers. There was evidence on these two points presented at the trial and the jury held the same way. The matter came before the lower court for review and by its order denying the motion for a new trial the lower court also held there was sufficient evidence on both points to justify the verdict.
It is clear that in granting the motion for judgment notwithstanding the verdict the lower court had excluded and refused to consider what we afterwards said should have been considered; but in passing upon the motion for a new trial, the trial court took into consideration the evidence we said should be included. After taking this into consideration the lower court felt the verdict was justified by the evidence thus affirming the bureau and the jury. We cannot say the evidence was so insufficient that the trial court abused its discretion in denying a new trial, or that the order should be reversed and therefore the order of the lower court is affirmed.
NUESSLE and BIRDZELL, JJ., concur.
BURKE, Ch. J. I dissent.
I believe a new trial should have been ordered as to James E. and David M. Hought.