Brulla v. Cassady , 206 Minn. 398 ( 1939 )

While we feel that a new trial of this case should be granted, we do not believe that the record justifies ordering judgment notwithstanding the verdict. That plaintiff was seriously injured in some manner is conceded. If he was injured in the manner testified to by him, he should recover. As to whether he was injured in that manner or by falling off a barn, as claimed by defendants, was a fact question for the jury. After seeing the witnesses and hearing their testimony, the jury resolved the fact question in plaintiff's favor and the trial court approved its verdict. The rule is that if there is some evidence reasonably tending to prove a good cause of action or defense judgment should not be ordered. 3 Dunnell, Minn. Dig. (2 ed. Supps.) § 5082; Bragg v. C. M. St. P. Ry. Co. 81 Minn. 130, 83 N.W. 511; Berghuis v. Schultz, 119 Minn. 87, 137 N.W. 201. It should not be ordered when there is a clear conflict in the testimony upon material issues. 3 Dunnell, Minn. Dig. (2 ed. 1937 Supp.) § 5082; Hess v. G. N. Ry. Co. 98 Minn. 198, 108 N.W. 7, 803; Wright v. Post, 167 Minn. 130, 208 N.W. 538. It should not be ordered unless the evidence is practically conclusive against the verdict. 3 Dunnell, Minn. Dig. (2 ed. Supps.) § 5082; Jones v. M. St. L. R. Co. 91 Minn. 229, 234, 97 N.W. 893,103 A.S.R. 507; Hume v. D. I. R. R. Co. 149 Minn. 245,183 N.W. 288; Trovatten v. Hanson, 171 Minn. 130, 213 N.W. 536.

A division of opinion among the members of the supreme court as to the effect of the evidence is a demonstration that the verdict should stand. 3 Dunnell, Minn. Dig. (2 ed.) § 5082. This court speaking on that subject in the case of Moody v. C. N. Ry. Co. 156 Minn. 211, 215, 194 N.W. 639, 640, said:

"A division of opinion here as to the effect of the evidence is a demonstration that the verdict should stand. Unless the members of an appellate court agree that a verdict is without support in the evidence, it can hardly be said that the trial judge erred in denying a motion for judgment notwithstanding the verdict because there was no room for a difference of opinion among reasonable men."

It seems to us that the case is one where a new trial should be granted in the interests of justice. At the oral argument counsel for both sides frankly stated that either the cause of action or defense was manufactured. The controversy cannot be the result of mistake. All of the lawyers connected with the case are men of high standing at the bar. We feel certain that none of them would knowingly become a party to a case involving deceit. It is very apparent that those associated with plaintiff's case or defendants' case have been misled. The record, particularly that part thereof pertaining to the question as to whether there were bruises on plaintiff's body when taken to the hospital, is quite unsatisfactory. While Dr. O'Connor took plaintiff to the hospital and rendered some assistance to Dr. Koepp, who took over the case, he did not positively testify that there were no bruises on plaintiff's body. In answer to an inquiry as to whether he saw any bruises on the body, Dr. O'Connor testified: "I don't think I did; I can't recall that I did." It must be remembered that the accident occurred on August 21, 1935, and the case was not tried until April 22, 1938. Attending hundreds of cases in the meantime, it would be exceedingly difficult for any doctor, without the aid of his records, to testify as to the existence or nonexistence of bruises. For some reason, Dr. Koepp, the attending physician, was not called as a witness nor were any of the nurses at the hospital where plaintiff was confined.

The injuries are of a very serious nature, as evidenced by the amount of the verdict. If the case has been manufactured by the plaintiff, a tremendous injustice would result in permitting the verdict to stand. If on the other hand a defense such as the one presented here is not real, granting judgment notwithstanding would result in a great injustice to plaintiff. It seems to us that the interests of justice would be better served by granting a new trial in the hopes that the "truth will out."