Olsen v. Wetzstein ( 1927 )

This is an action wherein the plaintiff seeks to recover from the defendants damages for injuries received in a collision said to have been caused by the servants and agents of the defendants in driving a passenger automobile bus between the cities of Bismarck and Mandan. The defendants allege that whatever injuries were sustained by the plaintiff were caused by plaintiff's own negligence, and his contributory negligence. The case was tried to a jury which returned a verdict in favor of the plaintiff in the sum of $5,500, and judgment for such sum and costs was entered in favor of the plaintiff and against the defendants on the 3d day of February, 1926. The defendants moved for a new trial, with nine specifications of error, among which is excessiveness of the verdict. This motion was heard on the 7th of April, 1926. On the 12th of May, 1926, the court handed down a memorandum opinion purporting to deny the motion, but no order overruling the motion was signed. A reargument was then had and again the court handed down an opinion unfavorable to the defendants.

On October 8, 1926, and before any order was signed by the court, the defendants moved to amend their motion for a new trial so as to include as one of the grounds the alleged misconduct of one of the jurors. This motion was heard on the 18th of October, 1926, and on the 8th day of November, 1926, the court rendered a memorandum decision sustaining the defendants' motion and on the 12th of November signed an order permitting the amendment and granting a new trial. The order granting a new trial does not specify upon what particular ground the motion was granted, but the memorandum opinion accompanying the same indicates that the court considered the alleged misconduct of the juror.

Plaintiff appeals from this order and sets forth four specifications of error to the effect that the court erred in permitting the amendment of the motion for a new trial, in granting a new trial, in considering the question of the alleged misconduct of the juror, and in making his own private examination of the latter.

It is well settled in this jurisdiction that "an order granting a new trial will not be reversed merely because the trial judge assigned a wrong reason for it. It is the correctness of the order, and not the reason assigned, that is involved upon the appeal." Davis v. Jacobson, 13 N.D. 430, 101 N.W. 314; Security State Bank v. Security State Bank, 54 N.D. 582, 210 N.W. 83.

The court, in this case, does not specify in his order on what grounds he granted the new trial. There were ample grounds set forth in the motion independent of the amendment and its implications, and though the judge at one time may have considered that the verdict, while large, should not be disturbed, yet he had a perfect right to change his opinion in this respect any time before he signed the order. He did sign an order granting a new trial and, unless there is a clear abuse of discretion in this matter, such order should not be disturbed. The amount of the verdict is such that it may readily be considered excessive. Therefore, we need not consider whether the court erred in permitting the amendment. Appellant has failed to show any abuse of discretion in granting the new trial and, therefore, the order appealed from is affirmed with costs.

BIRDZELL, Ch. J., and BURKE, CHRISTIANSON, and NUESSLE, JJ., concur.