Hector v. Royal Indemnity Co. ( 1931 )

Both parties appealed. The plaintiffs were unsuccessful on their appeal and the defendants on their appeal. Both move for a reargument.

The plaintiffs contend that we left it to the trial court to determine whether there was error and then to grant a new trial because of error. We did not intend such a thing. The language of the opinion is incomplete and unfortunate. The trial court charged upon the question of merger, and upon motion for a new trial was of the opinion that its charge was inadequate and in error and that likely the jury was prejudiced. We agreed. We cited Mingo v. Extrand, 180 Minn. 395, 230 N.W. 895, our latest case, as containing a definite statement of the applicable doctrine. The earlier cases are cited there. In its facts it is not so much like the case before us as Hartikka v. D. G. Cutler Co. 117 Minn. 344, 347, 135 N.W. 1005, 1006, where the court said:

"The trial court was of opinion that the jury was misled by this instruction, resulting in prejudice to plaintiff; and though the question is not free from doubt, in view of subsequent portions of the charge, which are exceedingly clear, we are not disposed, in view of the rule guiding us in cases of this kind, to disturb the action of the trial court. Much must be left to the sound judgment of that court upon questions of this character, and a reversal will be ordered only when it appears that the conclusion of prejudice made the basis of the new trial was clearly without reasonable or substantial foundation. * * * If the trial court had denied a new trial, it is doubtful whether a reversal would have been ordered on this particular point. But we give force to the advantageous position of the trial court in determining the question of prejudice, and sustain the order."

With this in mind and with the cases in view we will not be understood as saying that the trial court may hold a correct instruction erroneous and then grant a new trial upon the ground of error. And a new trial — if one is had — will not be embarrassed by what we said.

The defendants fear that because of what we said in denying their motion for judgment notwithstanding they cannot assert as a matter of law upon the new trial, for which they moved and were successful in getting, the insufficiency of the evidence. If this is so it is so because such is the law. We pointed out what seemed a weak point in the plaintiffs' facts, and so far as we could sought to leave everything for a new trial. The defendants moved in the alternative for judgment or a new trial. They took the benefit of a new trial; they did not get judgment. Upon a new trial — if one is had — if the facts make applicable the rule of the law of the case, it will be applied. It may not be applicable. Marshall v. C. R.I. P. Ry. Co. 131 Minn. 392, 155 N.W. 208. It cannot be determined now.

Motions for reargument denied.