American Coal Briquetting Co. v. Minneapolis, St. Paul, & S. Ste. Marie Railway Co.

On Petition for Rehearing.

Per Curiam.

Plaintiff has petitioned for a rehearing. Much of the petition is devoted to criticism of certain expressions contained in the majority opinion. ' Leaving philological questions on one side, the basic reasoning announced in all of the former opinions is the same, viz., that there was no legally sufficient evidence as to the value, to sustain the verdict for the amount returned by the jury in this casé. And we are still of the opinion that this holding was correct.

Plaintiff called only one witness, one Wright, to testify to the value of the buildings. On direct examination he testified, in response to leading questions, as to the value of the property. On his cross-examination it was developed that his former testimony was in fact not as to value, but as to the original cost of construction. No reasonable man can read Wright’s testimony and arrive at any other conclusion.

Plaintiff contends that inasmuch as there was no objection to Wright’s testimony when it was offered, it became competent evidence and must be so considered. The rule sought to be invoked is well established, but it does not go to the extent contended for by plaintiff. *384While the failure to object may constitute waiver of the incompeteney of the evidence, “it is not a waiver of the right to question its legal effect or its legal sufficiency.’' 9 Ene. Ev. 113. In the case at bar the legal insufficiency of the evidence did not become apparent until the witness was cross-examined. The plaintiff had the burden of proof. It was required to sustain this burden by substantial evidence — legally sufficient — to warrant reasonable men in arriving at certain conclusions. State Bank v. Bismarck Elevator & Invest. Co. 31 N. D. 102, 153 N. W. 459. In the case at bar the evidence adduced by the plaintiff, in our opinion, showed the cost of construction of the buildings, and not their value at the time of destruction or anywhere near that time. There was undisputed evidence showing the deteriorated condition of the buildings at the time of their destruction. The evidence offered by the defendant was to the effect that the buildings at the time of their destruction were of far lesser value than that fixed by the jury in their verdict. Hence, we were and are of the opinion that the verdict as returned has no substantial support in the evidence, and that the jury erred in its decision of the facts. Kinney v. Brotherhood of American Yeomen, 15 N. D. 21, 27, 106 N. W. 44. The defendant specifically assailed this decision by a motion for a new trial. In such motion he specified particularly that there was no competent evidence showing the value of the property destroyed to be more than $750 in all. The court denied a new trial. But inasmuch as there was no substantial and legally sufficient evidence in support of the verdict as returned, the trial court should have set aside the verdict and ordered a new trial. 29 Cyc. 832-835.

Rehearing denied.