I concur in the result in the foregoing opinion solely upon the ground of stare decisis. I do not agree that a trial by jury is waived where both parties to an action move for a directed verdict.
The right of trial by jury is inviolable but it may be waived "by consent of the parties expressed in such manner as the law may prescribe." Mont. Const., art. III, sec. 23. And so far as applicable here the law prescribes that a jury may be waived: "1. By consent of parties entered in the docket; * * *." Sec. 9676, R.C.M. 1935.
Just when does the party first moving for a directed verdict consent to waiving a jury if the trial judge believes there is sufficient evidence to make out a case for the jury? Does he do so by the mere act of his adversary in making a like motion? Consent contemplates agreement or meeting of the minds. When a party moves for a directed verdict he generally does not even know that his adversary will make a like motion and in my opinion it takes more than the mere making of the motion by his adversary to transform his motion for a directed verdict into a waiver of jury trial.
On this point I agree with what was said by Mr. Justice Wolfe in the case of Hodges v. Smoot, 102 Utah 90, 125 P.2d 419,421, where he said: "I cannot see that both sides waive a jury where plaintiff says `there is no evidence to support my adversary's theory, the evidence is all my way,' whilst the adversary says `there is no evidence to support the plaintiff — it shows *Page 342 in law that the plaintiff has no case.' The two similar motions based on completely opposite interpretations of the evidence would seem to present to the court definitely a question of whether one or the other was right and if he could not conclude that either was, that very conclusion would involve the idea of a factual question for the jury. I cannot subscribe to the soundness of the reason given in Sneider v. Big Horn Milling Co., 1921, 28 Wyo. 40, 200 P. 1011, and similarly reasoned cases that dual motions show no material disagreement as to the facts of the case which will affect the application of the law. There may be cases where both sides agree as to the facts but each differs as to the alleged inevitable conclusion which may be drawn from them. But more often the difference is as to the matter of the presence of evidence to support the adversary's position. Surely it cannot be said that the parties have in effect stipulated as to the facts or inferences to be drawn therefrom when each says that there is ample evidence to support his position and no evidence to support his adversary's position. The sounder reason is that both sides have in effect consented to withdraw the case from the jury, but on analysis this reasoning does not stand up because it is contrary to the fact. The fact is that each says it should not go to the jury because the other party has not made a case or a defense under the evidence. The readiness with which the courts following the majority rule seize on some slight provocation to make an exception to the rule on the theory that there is a waiver of the rule — a waiver of a waiver — demonstrates the instability of the rule itself. It were better to adopt a rule which is more in accord with reality than with a fiction. The rule should be that it is for the trial court to rule on each motion for a directed verdict separately and if neither is well taken to put the case to the jury, unless the court concludes that there is no substantial disagreement as to the evidence nor as to any of the inferences or deductions which may reasonably be drawn therefrom in which case in any event there remains but a question of law for the court."
The evidence in this case as to whether plaintiff's dog killed, *Page 343 wounded or injured a sheep within the purport of section 3417.15, R.C.M. 1935, was circumstantial. I think it was a question of fact as to whether the circumstances were sufficiently strong to preclude every other reasonable hypothesis. Except for the repeated decisions of this court holding in effect that a jury is waived when both parties move for a directed verdict (a proposition to which I cannot agree), then the court should have denied both motions and submitted the case to the jury.
In view of those decisions, however, the court was right in resolving the fact issue and since it could be resolved either way, his finding should be sustained.
As before stated, I think the former decisions of this court holding that a jury is waived when both parties move for a directed verdict, and do nothing more, are erroneous.
The rule should be that if both parties move for a directed verdict, and do nothing more, there is no basis for holding that a jury trial is waived in the manner provided for by law or at all.
But in view of the long line of cases by this court holding otherwise, I subscribe to the conclusion reached in the foregoing opinion solely on the ground of stare decisis.