Opinion
File No. 10142.
Opinion filed April 9, 1965
1. Trial.
Motion for directed verdict is not addressed to court's discretion but raises a question of law as to legal sufficiency of evidence to sustain verdict against movant.
2. Trial.
Trial court is not free to weigh evidence or gauge witnesses' credibility on motion for directed verdict.
3. Trial.
On motion for directed verdict, trial court must accept evidence which is most favorable to party opposing motion and indulge all legitimate inferences in his favor that can fairly be drawn therefrom.
4. Trial.
Any evidence sufficient, on motion for directed verdict, to sustain cause of action or defense must be submitted to jury.
5. Trial.
Test of right to direct a verdict is whether court would be bound, on consideration of all evidence, to set aside a contrary verdict.
6. Trial.
In exceptional cases, verdict may be directed in favor of party having burden of proof when evidence on behalf of moving party is clear and full, credible and not contradicted, and so plain and complete that reasonable minds could come to no other conclusion.
7. Contracts.
Evidence in action by mother against her daughter and son-in-law concerning informal family arrangement relative to home for mother was sufficient to preclude directed verdict for mother where evidence on many material matters was conflicting and contradictory.
Appeal from Circuit Court, Pennington County; Hon. George D. Lampert, Judge.
Action by mother against daughter and son-in-law concerning informal family arrangement relative to home for mother. From directed verdict for mother, defendants appeal.
Reversed.
Gunderson, Farrar, Carrell Aldrich, Rapid City, for defendants and appellants.
Smiley Anderson, Belle Fourche, for plaintiff and respondent.
This action by a mother against her daughter and son-in-law arises out of an informal family arrangement relative to a home for the mother. The issues were never clearly defined and the complaint was amended during the course of the trial which alleged a new and different theory of action. At the conclusion of the trial plaintiff moved for a directed verdict in her favor for the sum of $4,450. The motion was at first denied but later reconsidered and granted by the court on its own motion for the sum of $4,000 together with interest thereon at six percent from the 24th day of October, 1962. Defendant appeals.
[1-5] A motion for directed verdict is not addressed to the discretion of the court. Instead, it raises a question of law as to the "legal sufficiency of the evidence to sustain a verdict against the moving party." Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521. In determining this question the trial court "is not free to weigh the evidence or gauge the credibility of the witnesses. These are matters for the jury. He must accept that evidence which is most favorable to the party against whom the motion is sought, and indulge all legitimate inferences in his favor that can fairly be drawn therefrom. Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521; Johnson v. Chicago N.W. Ry. Co., 71 S.D. 132, 22 N.W.2d 725 and Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620. If, when so viewed, there is any substantial evidence to sustain the cause of action or defense it must be submitted to the jury." Myers v. Quenzer et al., 79 S.D. 248, 110 N.W.2d 840. The test of the right to direct a verdict is whether the court would be bound, from a consideration of all the evidence, to set aside a contrary verdict. Johnson v. Chicago Northwestern Ry. Co., 71 S.D. 132, 22 N.W.2d 725.
[6, 7] It is also permissible in exceptional cases to direct a verdict in favor of the party having the burden of proof when the evidence on behalf of the moving party is clear and full, credible and not contradicted, and is so plain and complete that reasonable minds could come to no other conclusion. Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 7. This is not such a case, however, as the evidence on many material matters is conflicting and contradictory. Under the circumstances, defendants are entitled to have the credibility determined, the evidence weighed, and the conflicts resolved by a jury. Sprick Bros. Inv. Co. v. Whipple, 33 S.D. 287, 145 N.W. 559.
Reversed.
All the Judges concur.