Ellsworth v. Martindale-Hubbell Law Directory, Inc. , 69 N.D. 610 ( 1939 )

I am of the opinion that in determining whether it is reversible error for the trial court to grant the motion for directed verdict, we should not consider the question of the quality of the evidence at the time the motion was granted.

There has been a progressive attitude on the part of the court to view a violation of this statute involved as not reversible error if the court be satisfied as a matter of fact that the moving party would be entitled to a verdict on a motion for judgment notwithstanding the verdict.

We have always held the view and stated distinctly that it is error so to do. The cases cited in the main opinion show this.

In First Nat. Bank v. Strauss, 50 N.D. 71, 75, 77, 194 N.W. 900, 902, we state clearly and unequivocally that it is error to direct such a verdict. The greater portion of the opinion is taken up with the discussion of the effect of this law. The trial court did direct a verdict contrary to the statute and this court reversed it. It is true that a few lines at the end of the opinion show that there was evidence to go to the jury, and, therefore, we said, "upon the record as a whole we do not believe that the defendant was entitled to a judgment in his favor, as a matter of law. Defendant's motion for a directed verdict should have been denied." Thus, it may be argued this was the controlling reason for reversal.

In Rokusek v. National Union F. Ins. Co. 50 N.D. 123, 195 N.W. 300, the issue here was not involved. In McLeod v. Simon, 51 N.D. 533, 541, 200 N.W. 790, 793, we have the quotation set forth in the main opinion showing that it is error to violate the statute. When we come to the case of Thoreson v. Hector, 54 N.D. 651, 656, 210 N.W. 169, 171, the rule is laid down that although it may be error, "it cannot be reversible error to do in advance that which must inevitably be done after an erroneous verdict, namely: to order the only judgment which can be entered in view of the evidence."

Then, in Rattie v. Minneapolis, St. P. S. Ste. M.R. Co.55 N.D. 686, 692, 215 N.W. 158, 160, where the rule in Thoreson v. Hector is followed without reference to the authority, we say it is a "practice not to be approved under chapter 133, Session Laws 1921. . . ." On the same day, in Ouren v. Friswold, 55 N.D. 664, 670, 215 N.W. 160, 162, we follow the Rattie Case.

A cursory consideration of the principle involved may lead to the assumption that it is useless, and even silly, for a litigant to insist that a judgment should be set aside for a violation of the statute when, as a matter of fact, the lower court, and this court on appeal, arrive at the determination that the evidence was such that but one verdict could logically be returned in any event.

But the question is deeper than this and is not to be judged by an isolated situation entirely. I believe it may be taken as an accepted fact that the legislature, in enacting the parent statute, chapter 123, Session Laws of 1921, and subsequent amendments, had in mind providing a remedy for situations which, because of the numerous cases in which they arose, proved to be extremely detrimental to the administration of justice.

Prior to the enactment of this statute many cases had arisen where the district court, in the exercise of his judicial functions, had determined there was no evidence to submit to the jury and directed a verdict accordingly, thus requiring the opposing party to appeal and, in the reversal of the trial court, obtain a new trial at great expense and great delay. Expense and delay were then and are today among the chief criticisms of the administration of justice. It is true that there were cases arising where the trial court would grant the motion and this court on appeal agree as to the status of the case; but there were so very many instances where the appellate court determined the lower court was in error in granting such motion that the legislature determined to enact the statute involved.

The statute is mandatory on the lower court. It is difficult to see how it could be made more so. It is designed to prevent the doing of those things which had so frequently resulted in delay and expense. It is not concerned with the isolated cases where the lower court and the appellate court would agree. If it were intended, or even suspected, that the district court could take the chance of violating the statute on the theory that the appellate court would agree with him, then there would have been no reason for enacting the statute for any prudent district court would submit the matter to a jury in a doubtful case. Thus, the court would do what should be done in such cases as this, refuse to pass hastily on the proposition (for in the speed and heat of the trial there is haste) and still have a situation which he could remedy under the old system upon more mature reflection if he came to the conclusion that there was no testimony. Hence, the holding that while it is error it is not reversible error results in nullifying the statute entirely.

While the overwhelming weight of authority is that in general the courts have the power to direct a verdict, this rule was formulated before such statutes as are involved here existed. This law must be considered as affecting this general rule — not destroying it — for it "merely regulates or postpones the exercise of the power of the court." Zimmerman v. Chicago N.W.R. Co. 129 Minn. 4, 151 N.W. 412. The right of the legislature to determine how this judicial power shall be exercised is recognized. Keen v. State, 89 Fla. 113, 103 So. 399.

Assuming, therefore, that the legislature has power to lay down rules which the courts must follow, a matter which is not involved here and which really requires a consideration of the constitutionality of such acts, it is clear the legislature was not governed by the consideration that in some cases the views of the two courts would coincide.

The records of this court, since the enactment of this statute, show numerous instances where the trial court granted judgment notwithstanding the verdict and was reversed. True, the lower court did not violate the statute because it passed upon the motion after the verdict; but it indicates that there was then and still is a sufficient number of instances to justify the enactment of such a statute. The course of the court is determined not by what may be the possible result, but by its plain duty. If the statute is to have any validity whatever, it must be considered as a rule of conduct binding on the courts in all cases, and it is reversible error to violate it, without reference to the effect upon the specific case which may be under consideration here. The value to the great majority of litigants was to be preferred to the incidental benefit to one. The fact that in this case it may be considered there is injury to the defendant in reversing the case on this principle and requiring it to go to the expense of another trial is not controlling. The action of a party in insisting upon a directed verdict in face of resistance from his antagonist, thus leading the court astray, is the real cause of the subsequent delay and expense accruing to him.

In the administration of human justice you cannot guard against every injury to a litigant. Viewed in its broad aspects, the legislature in enacting this statute did not have in view the cases here and there where a court might be considered to have done no real injury in violating it. Such cases are incidental. The legislature was not concerned with that phase, nor did the legislature consider that any statute or any rule to the effect that harmless error be disregarded would apply.

It is not sufficient to say that it is only in cases where a rational man would say there is no evidence that this court will hold it is error without prejudice. Who is the rational man? After all, it is a matter of opinion to a great extent, and while the opinion of the superior must necessarily control if we are going to have order and finality, nevertheless this question is not to be determined by the claim that no harm has been done to the litigants in the case at bar. The statute is a rule designed to prevent certain conduct of the courts, conduct which we said in the Rattie Case was not to be approved. Not only is it not to be approved, but it is to be condemned. The ultimate result of the holding that it is error without prejudice is to nullify the plain purpose and intent of the legislature for it leaves the situation just as it was before. In determining this question we do not get to the consideration of the evidence, nor should we become impatient because we may consider it an idle ceremony to submit the case.

The term "Harmless Error" is not determined by the ultimate result. Grant that the end is justifiable, then the means employed become the all-important question. One may be entitled to judgment, but he must get it lawfully. If not done lawfully, we are not concerned with the result. A plaintiff may not have a case, but this must be determined according to law. Short cuts are a menace to order and justice. The end does not justify the means. Hence, in deciding this appeal we never arrive at the merits and should not scan the transcript.

In Jones v. St. Paul, 130 Minn. 260, 262, 153 N.W. 516, 517, a negligence case, the trial court had directed the jury as a matter of law that the plaintiff had not exercised due care. The supreme court held this was tantamount to a directed verdict, and, therefore, among the grounds for reversal, held that the trial court committed reversible error in directing a verdict in the face of chapter 245 of the 1913 Session Laws of Minnesota (practically the same as our statute here involved), saying, "An objection thereto was sufficiently made and attention called to the statute at the time."

While it is the general rule that the courts must disregard harmless error, such rule is not applicable in the face of such a statute as this. In Small v. Virginia R. Power Co. 125 Va. 416, 99 S.E. 525, the trial court, in spite of the fact that the Code of Virginia provided: "``"that in no action tried before a jury shall the trial judge give to the jury a peremptory instruction directing what verdict the jury shall render."'" (Va. Acts, 1912), told the jury that under no circumstances in the case could there be a recovery against the defendant. Virginia had the rule that harmless error shall be disregarded. The supreme court said that despite such rule, the provisions of the statute that there should be no peremptory instruction as to what verdict should be returned controlled. The court distinguishes between the binding effect of such statute and the binding effects of statutes which require the disregard of harmless error and show that the latter statute has no effect upon the one forbidding directed verdicts. In this case cited the court goes into an extensive review of the reasons for the enactment of such a statute. It says (125 Va. 425, 99 S.E. p. 527): "The act . . . was passed for the express purpose of prohibiting the application of the doctrine of harmless error to the mandatory direction of verdicts. . . . It can hardly be doubted, therefore, that the act meant to declare that even in such cases a violation of the settled rule of practice on the subject should not be regarded as otherwise than prejudicial."

In Atkinson v. Neblett, 144 Va. 220, 132 S.E. 326, the court reviewed its attitude toward the disregard of such statutory requirement and reversed a case where the trial court gave a peremptory direction or instruction as to but one feature of the case. In this case we need not consider to what extent such a statute goes in the matter of instructions for the act of the court here directed a verdict in the entire case and did not direct the jury to find on some one question.

If, in the opinion of the court, there is no evidence upon which a recovery may be based or defense founded, the court, in its charge to the jury, tells what the party must show and may instruct the jury that if such party has not furnished the quantum of evidence the jury should find accordingly. This is not directing a verdict. If the court specifies the legal effect of a document and charges accordingly, it is a matter of law that may be remedied by a new trial. Where the state of the evidence is such that the controversy resolves itself into a matter of law and the court in determining the question of law states the effect and so charges the jury, the charge does not amount to a directed verdict. The case is submitted to the jury and the verdict is returned. This apparently is the proper procedure, for if the jury disregards the charge, the court then would set the verdict aside and order judgment accordingly. See Inter-Ocean Casualty Co. v. Smith,167 Va. 246, 188 S.E. 210, 213. In other words, the trial proceeds as usual. The court rules on the introduction of evidence, strikes out evidence, construes the law, charges what is necessary to prove the case and what is the effect of failure. He then submits the case even though but one verdict can be returned. The rule requiring disregard of harmless error is followed in passing upon the act of the court during the process of trial; but the submission of the case to the jury is mandatory and failure to do so is reversible error without reference to the weight or character of the evidence. There are many cases where disregard of the statutory requirement vitiates the verdict or decision without reference to the merits of the case. They are more frequent in criminal prosecutions. For instance, where the disregard of the requirement that the defendant be personally present in court during the trial was held to cover a situation where after all the evidence was in and argument made to the jury, some of the testimony was read to the jury in the absence of the defendant. We decided the case without reference to the weight of the testimony whatever. While this is based largely upon constitutional grounds, it also discusses the statutes pertaining thereto.

The statute says: "Such motion shall be denied and the Court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken. . . ." The court did not do so. It violated the statute in not doing so, it nullified the intent of the legislature in not doing so, and if the legislature has any control over the court in this respect, then the action of the court in the conduct of trials must be considered reversible error without reference to the fortunes of the litigants in the case. It may be argued no "evidence has been taken" for there is not enough, and therefore the statute does not apply; but this borders on the ingenious. The jury was selected and almost one hundred pages of testimony taken. We should not consider the quality of it. If we have been in error heretofore, now is the time to correct our position before the rule of stare decisis is invoked.

I believe that such a declaration on the part of this court will settle once and for all the action of the lower courts. It will be in harmony with what the legislature determined. It does no injury to any litigant. It carries out the purpose and theory underlying the legislation and it is a simple thing to do. No delay and no expense of any appreciable amount will be incurred by the adherence to such a rule and there will be no conflict between two co-ordinate branches of the government as to the purpose and the carrying out of the purpose.