Granier v. Chagnon , 122 Mont. 327 ( 1949 )

I concur in the majority opinion. However there is some confusion and conflict in the Montana cases as to the effect of both parties making a motion for a directed verdict. 53 Am. Jur., "Trial," sec. 341, p. 274; Electrical Products Consolidated v. El Campo, Inc., 105 Mont. 386, 73 P.2d 199. The question was raised in the instant case and should be clarified. The majority opinion sets out in detail what happened at the close of the case. It is sufficient to here repeat that both sides moved for a directed verdict. The judge thereupon said, "There is nothing for me to do except decide the matter right now." A verdict was directed for the defendant and signed by the foreman of the jury.

The most frequently cited statement of the rule in this state is from Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 P. 155,156: "The general rule is that a request by both parties for a directed verdict amounts to a submission of the whole case to the court, and its decision upon the facts has the same effect as the verdict of a jury, and will not be disturbed when supported by any substantial evidence. But the rule does not apply when the party whose request has been denied, thereafter makes a seasonable request for the submission of the facts to the jury." Olsen v. Zappone, 83 Mont. 573, 273 P. 635; Anderson v. Border,75 Mont. 516, 244 P. 494; Midland Motor Co. v. Norwich Union Fire Ins. Soc. Ltd., 72 Mont. 583, 234 P. 482; Barkemeyer Grain Seed Co. v. Hannant, 66 Mont. 120, 213 P. 208; Stoltze Land Co. v. Westberg, 63 Mont. 38, 206 P. 407; Buckhouse v. Parsons,60 Mont. 156, 198 P. 444; Bank of Commerce v. United States Fidelity Guaranty Co., 58 Mont. 236, 194 P. 158.

53 Am. Jur., "Trial," section 342, page 274, says: "* * * if both parties to an action at the conclusion of the testimony request the court to direct a verdict — the plaintiff moving for a verdict in his favor, and the defendant for a verdict in his favor — and make no request that the jury be allowed to determine any question of fact, and do not otherwise indicate any desire to avail themselves of their right to have questions of fact submitted to the jury, if their respective motions are denied, the parties will be deemed to have waived the right to a trial by jury and to have constituted the court trier of questions of both law and fact."

In principle I agree with Mr. Justice Angstman's criticism of the foregoing rule and concur in his opinion that the general rule is so well established that the precept of stare decisis prevents a change. Parenthetically it may be noted that while under the decisions of the federal courts the rule cited is "the rule which obtains" as stated in the opinion of Mr. Chief Justice Adair, yet when the Federal Rules of Civil Procedure were promulgated in 1937 they said: "A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts." Rule50, Federal Rules of Civil Procedure, 28 U.S.C.A. Compare Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177.

In Annotations in 108 A.L.R. 1315, 69 A.L.R. 634, and 18 A.L.R. 1433, the above rule is said to be the majority rule and is stated in substantially the same terms. Montana is given as one of the states that follow the majority rule. But as stated above, the rule is only applicable when both parties move for a directed verdict and do nothing more, for after the ruling on the motion but before directing the verdict, either counsel can request that the disputed facts be submitted to the jury. In Osterholm v. Boston Montana Consol. Copper Silver Min. Co.,40 Mont. 508, 107 P. 499, 503, the court quoted from a United States Supreme Court decision of Empire State Cattle Co. v. Atchison, T. S.F.R. Co., 210 U.S. 1, 28 S. Ct. 607,52 L. Ed. 931, 15 Ann. Cas. 70: "Nothing sustains the view that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is conflicting, or the inferences to be drawn from the testimony are divergent."

And in Fifty Associates Co. v. Quigley, supra, 56 Mont. at page 354, 185 P. at page 156, the court said: "But the rule does not apply when the party whose request has been denied, thereafter makes a seasonable request for the submission of the facts to the jury." Citing Beuttell v. Magone, 157 U.S. 154,15 S. Ct. 566, 39 L. Ed. 654, and Sena v. American Turquoise Co.,220 U.S. 497, 31 S. Ct. 488, 55 L. Ed. 559, as well as Empire State Cattle Co. v. Atchison, T. S.F.R. Co., supra. See also Bank of Commerce v. United States Fidelity Guaranty Co., supra, and Moore et al. v. Crittenden et al., 62 Mont. 309, 204 P. 1035.

In Stiemke v. Jankovich, 72 Mont. 363, 233 P. 904, 907, before the court had instructed the jury the appellants requested a submission to the jury of all the issues raised by the pleadings and the evidence. The court said: "It is only in the absence of such a request that the court may deem the case submitted as on an agreed statement of facts." The court there ruled that when there was such a request after the motion was ruled on but before the formal instruction of the jury, it was proper to submit the case to the jury. See also, E. Buckhouse v. Parsons, supra, and Harvey Mack Co. v. Ryan, 80 Mont. 524, 261 P. 283.

When both sides move for a directed verdict and do nothing more the court may of its own motion deem the evidence upon vital questions in conflict and submit the cause to the jury either by way of special findings or request a general verdict. Hollingsworth v. Ruckman, 72 Mont. 147, 232 P. 180, 182. In that case the court said: "Here the court was in doubt upon conflicting evidence. It desired the jury's judgment upon the question whether the parties intended to include the note in their contract of recission and so submitted special findings touching that issue. This was commendable practice. Disputed points deemed material by the court often might be resolved to the court's satisfaction if special findings were required."

Or instead of making a request to go to the jury after the ruling on the motion and before the verdict is directed, counsel may couple their request for a directed verdict with a request for other instructions or a petition to go to the jury on disputed questions of fact in the event of an adverse ruling. Steimke v. Jankovich, supra.

The theory of all this is that the constitutional right to a trial by jury is not waived by motions for a directed verdict unless nothing else is done but either party may save its rights by a seasonable request for findings by the jury on conflicting evidence or disputed questions of fact or save its rights by making a request to go to the jury at the same time that counsel makes the motion. And even though both sides move for a directed verdict without requesting jury findings, the court of its own motion can send the case to the jury and can do so over the desire of counsel.

In Hollingsworth v. Ruckman, supra, it was contended that a motion by both sides for a directed verdict without anything else appearing amounted to an agreement by counsel that jury trial would be waived, but the court held there that the power of the court could not be limited by such agreement, that the court might not agree with counsel that it was only a question of law and that there were no disputed questions of fact and therefore the court could deem the evidence conflicting and send the case to the jury.

The confusion arises out of the opinion of the court in Electrical Products Consolidated v. El Campo, Inc., supra. In that case plaintiff's counsel made a motion for a directed verdict. Defendant's counsel then asked the court if he should make his motion for a directed verdict before the ruling on the plaintiff's motion and the court replied that he should do so and that it would consider both motions together. The defendant then made this statement: "Pursuant to the instructions of the court, defendant presents its motion before the plaintiff's motion is ruled upon, and without a waiver thereby of the right to go to the jury, but with the express reservation of that right." 105 Mont. at page 389, 73 P.2d at page 201. Then counsel made a motion for directed verdict on several grounds. The court instructed the jury to find a verdict for the plaintiff, which it did. Defendant contended that the express reservation of his right to go to the jury made at the time of his motion for a directed verdict reserved that right in the event of an adverse ruling. Citing in support of that contention, Harvey E. Mack Co. v. Ryan, supra; Stiemke v. Jankovich, supra, and Fifty Associates Co. v. Quigley, supra. The court said: "It will be noted, however, that in those cases it is indicated that such a reservation must specifically point out certain fact issues which it is desired to have the jury pass upon notwithstanding the motion. This point is not of persuasive effect here, as will hereinafter appear." Further on the court said: "In the final analysis we must hold that the case, having been submitted to the court by motions for directed verdict tendered by both sides, was submitted for all purposes and for a final decision on the merits. * * * The case having been submitted in the manner hereinbefore described, it becomes our duty, after a review of the record, to decide whether or not there was any evidence therein sufficient to warrant the trial court to direct a decision of the matter in favor of the plaintiff." The court then proceeded to examine the evidence and found that there was no substantial evidence to sustain the directed verdict and therefore reversed the case. The effect of the decision is to find that the trial court erred in directing a verdict for the plaintiff in the case for the reason that there was insufficient evidence under any theory to sustain that verdict. In this respect the case follows General Fire Extinguisher Co. v. Northwestern Auto Supply Co., 65 Mont. 371,211 P. 308. As pointed out in the latter case, as well as in the above quotation, the point that there was a right to go to the jury was not persuasive to the court and therefore any declaration that the court might make thereon is dictum. It is that dictum, however, that may cause confusion.

An examination of the cases cited, Stiemke v. Jankovich, supra; Harvey E. Mack Co. v. Ryan, supra, and other cases that we have noted above, demonstrates that there is nothing in the cases to justify the court's conclusion that you must specifically point out the reservations of the fact issues that you desire to have the jury pass upon. In Harvey E. Mack Co. v. Ryan, supra, there was no reservation and the court of its own motion submitted the cause to the jury. In deciding that this was proper and that the court had not erred in doing so, Mr. Justice Matthews said: "Each party to such an action as this has a constitutional right to a trial by jury. If, then, when each party moves for a directed verdict, and the court denies each motion, and thereupon proceeds to discharge the jury and determine the case upon questions of law alone, such action amounts to a deprivation of that right and the assessment of a penalty for making the motions." [80 Mont. 524, 261 P. 287.]

In the statement of the facts in the Stiemke case, 72 Mont. 363, on page 370, 233 P. 904, all that appears is that the appellants requested the submission to the jury of all the issues raised by the pleadings and the evidence and then further particularized certain facts that they wished submitted to the jury. The court did not distinguish whether the particularized matters should have been submitted or whether the request that all the facts be submitted was sufficient. It merely said, as we have quoted above, that it was only in the absence of a request that the court may deem the case submitted as on an agreed statement of facts. Despite the language in Electrical Products Consolidated v. El Campo, Inc., supra, in my opinion the rule in Montana is as follows: When a motion is made for a directed verdict and nothing more is done the case is submitted to the jury as if upon an agreed statement of facts, but if there is an express reservation of the right to go to a jury either on a specific fact issue or upon all the issues of fact, coupled with a request for a directed verdict, then in case of an adverse ruling the case must go to the jury. If, after a ruling on the motion and before the formal direction of the jury, either party requests to go to the jury on conflicting evidence or disputed questions of fact, then the cause must go to the jury. In the event nothing more is done, but the judge, of his own motion, wants to submit the case to the jury either for special findings or upon all the conflicting issues, the court may do so. In the instant case, both sides made a motion for a directed verdict. Nothing more was done. The court asked counsel if there was anything more they had to say, and then specially directed the question to counsel for the plaintiff, asking if he had anything more to say. Counsel for plaintiff said he still stood on his motion. Under these circumstances the court had the option of sending the cause to the jury to determine facts that it deemed disputed or it could accept the agreement of counsel that they would submit the cause to the court. Had counsel while making the motion reserved the right to go to the jury or had either party made a request to go to the jury, under the present law of Montana, the dictum in the case of Electrical Products Consolidated v. El Campo, Inc., supra, excluded, the trial judge would have been in error in refusing the right to go to the jury unless the evidence was such that if the case were submitted to the jury and a verdict returned for one party it would be the duty of the court to grant a new trial on motion of the opposing party. Lister v. Donlan, 85 Mont. 571,281 P. 348, 72 A.L.R. 1; Stiemke v. Jankovich, supra. Or where the evidence is susceptible of but one construction by reasonable men. Pankovich v. Little Horn State Bank, 104 Mont. 394, 66 P.2d 765; Gagnon v. Jones, 103 Mont. 365, 62 P.2d 683, and cases therein cited.