Weber v. United Hardware I.M. Co. , 75 N.D. 581 ( 1948 )

In a petition for a rehearing it is claimed that waiver and estoppel were not pleaded, that the evidence supporting them was not admissible and that they were not considered or passed upon in the district court.

As stated in the original opinion the suit is brought for damages under an insurance policy. The answer contains no counterclaim but alleges as new matter by way of defense that defendant was exonerated and discharged from liability on the policy because of a settlement with and release in full of the tort-feasor which he claims bars further action by the plaintiff. To this answer no reply was made. However, § 28-0740 ND Rev Code 1943, provides: "But the allegation of new matter in the answer not relating to a counterclaim, . . ., is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require." In the case of Moores v. Tomlinson, 33 N.D. 638, 157 N.W. 685, it is held:

"It was not necessary for plaintiffs to reply to the new matter in the answer, because, under the express provisions of our Code of Civil Procedure, such new matter was `deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may be.' Comp Laws 1913, Secs 7467, 7477. See also Comp. Laws 1913, Sec 7452. By virtue of these statutory provisions the allegations of the answer were controverted `as upon a direct denial or avoidance' by operation of law, `and the plaintiff might prove in response thereto any fact by way of denial or of confession and avoidance.' Pomeroy, Code Remedies § 588; American Case Register Co. v. Walton D. Co. 22 N.D. 187, 133 N.W. 309; Erickson v. Elliott, 17 N.D. 389, 117 N.W. 361; Scott v. Northwestern Port Huron Co. 17 N.D. 91, 115 N.W. 192; Koester v. Northwestern Port Huron Co. 24 S.D. 546, 124 N.W. 740; McCarthy Bros. Co. v. Hanskutt,29 S.D. 535, 137 N.W. 286, Ann Cas 1914D 889."

And in Beauchamp v. Retail Merchants Asso. 38 N.D. 483, 497, 165 N.W. 545, the court said:

"Defendant is in error when it asserts that it was incumbent upon the plaintiff to raise the question of waiver by way of reply. In this state `a plaintiff is not required to reply to new matter in an answer not constituting a counterclaim, except by order of the court; but every allegation of new matter in the answer, not constituting a counterclaim, is deemed controverted by the plaintiff as upon a direct denial or avoidance by operation of law.'"

See also A.M. Wilson Co. v. Knowles, 52 N.D. 886, 891, 204 N.W. 663; Pfaffengut v. Export Ins. Co. 55 N.D. 112, 118, 212 N.W. 518.

A reply therefore was not necessary. Any matter in avoidance of the new matter could be raised on the trial.

As to the second ground alleged for a rehearing the record shows that the objections made to the testimony on waiver and estoppel were overruled and the evidence admitted. At the close of the case the defendant moved for a directed verdict which motion was denied. The court thus passed not only on the admissibility of the testimony but also that there was sufficient evidence to submit the case to the jury.

After the verdict the defendant made a motion for a judgment notwithstanding or in the alternative for a new trial. On the hearing of that motion however defendant withdrew the alternative motion for a new trial and elected to "stand entirely upon its request for judgment non obstante." That action left for consideration only the motion for judgment notwithstanding the verdict.

The ruling on a motion for judgment notwithstanding the verdict may be reviewed separately, § 28-1511 ND Rev Code 1943. But a new trial will not be granted on such a motion (Nelson v. Grondahl,12 N.D. 130, 96 N.W. 299; Bragg v. Chicago, M. St. P.R. Co. 81 Minn. 130, 83 N.W. 511), unless the alternative motion for a new trial has been coupled with the motion for judgment notwithstanding. Nelson v. Grondahl, 13 N.D. 363, 100 N.W. 1093; Nagaro v. Metropolitan Edison Co. 130 Pa. Super. 323, 197 A. 550. In the instant case that alternative motion was specifically abandoned and withdrawn.

In the case of Ennis v. Retail Merchants Asso. Mut. F. Ins. Co.33 N.D. 20, 36, 156 N.W. 234, it is held:

"two prerequisites are essential to justify a trial court in ordering judgment notwithstanding the verdict: (1) A motion for a directed verdict must have been made and denied; (2) the party who moved for a directed verdict must have been entitled to a directed verdict at the time of the motion. The motion for judgment notwithstanding the verdict in effect reviews only the court's ruling in denying the motion for a directed verdict."

This holding is affirmed in Olson v. Ottertail Power Co. 65 N.D. 46, 53, 256 N.W. 246, 95 A.L.R. 418; Bormann v. Beckman, 73 N.D. 720,19 N.W.2d 455.

The state of the case as shown by the record then leaves for review only the decision of the court in denying the motion for a directed verdict made at the close of plaintiff's case. The grounds of that motion were briefly that the release of the tort-feasor and his employer was a bar to subrogation and together with the payment of a part of the damages by the Royal Indemnity Company resulted in a complete release and discharge of the defendant from all liability under the policy and constituted a complete defense to this action. Only those grounds can be considered. A determination must be made whether upon the whole record as it then stood the defendant was entitled as a matter of law to a directed verdict. Aetna Indem. Co. v. Schroeder, 12 N.D. 110, 120, 95 N.W. 436; First State Bank v. Kelly,30 N.D. 86, 152 N.W. 125, Ann Cas 1917D 1044; State ex rel. Brazerol v. Yellow Cab Co. 62 N.D. 733, 736, 245 N.W. 382. On such a motion other alleged errors in the trial of the case including the court's rulings on admission of evidence are not considered. 49 CJS 165; Farmer v. Alton Bldg. L. Asso. 294 Ill. App. 206,13 N.E.2d 652.

"Action of court in entering judgment non obstante veredicto on ground that evidence had been improperly received held reversible error, since record at close of trial including all evidence determined right to such judgment (12 PS §§ 681 et seq.)." Ozanich v. Metropolitan L. Ins. Co. 119 Pa. Super. 52, 180 A. 67, 576.

The evidence on the waiver by and estoppel of the defendant offered in avoidance of the new matter set up in the answer was before the jury. That made an issue for their decision.

We have again carefully reviewed all the evidence and rulings pertinent to the motion for directed verdict and again come to the conclusion that the plaintiff was not entitled to directed verdict at the close of the trial, that therefore the granting of judgment notwithstanding the verdict was erroneous and that the original verdict should be reinstated as directed in the original opinion.

The petition for rehearing is denied.

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