text:
    2004 SD 127
    Bonnie WIRT, Petitioner and Appellant, v. PARKER SCHOOL DISTRICT # 60-4 and Parker Board of Education, Respondents and Appellee.
    No. 23186.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2004.
    Decided Nov. 23, 2004.

      Anne Plooster, South Dakota Educ. Ass’n, Pierre, SD, for petitioner and appellant.
    Thomas H. Harmon of Tieszen Law Office, Pierre, SD, for respondents and ap-pellee.
   ZINTER, Justice.

[¶ 1.] Bonnie Wirt retired from the Parker School District after 39 years of teaching. Before the next school year started, she came out of retirement and accepted a new one-year contract of employment for the amount teachers without “continuing contract status” were paid. At the end of the new one-year contract, Wirt was terminated without the tenure protections given to continuing contract status teachers. Writ appealed to the circuit court contending that she had continuing contract status notwithstanding her retirement. The circuit court disagreed and granted summary judgment in Parker’s favor. We affirm.

Facts and Procedural History

[¶ 2.] The facts are not in dispute. Wirt was a continuing contract teacher with 39 years of experience. On March 11, 2002, the Parker School Board decided to reduce her kindergarten position from full-time to half-time for the 2002-2003 school year. Wirt held the full-time position at a salary of $34,064. On April 26, 2002, she accepted the half-time position at a salary of $17,032, which was one half of her full-time salary as a continuing contract teacher.

[¶ 3.] On May 23, 2002, Wirt apparently changed her mind and resigned from the half-time teaching position, indicating that she was going to retire. The Board accepted her resignation on June 10, 2002. Upon retirement, Wirt was fully paid for her 2001-2002 contract, she received a payout of her accumulated sick leave, she ended her contributions to the South Dakota Retirement System (SDRS), and she began receiving her SDRS retirement benefits.

[¶ 4.] The Parker School District continued to seek a teacher to fill the 2002-2003 half-time position. Wirt subsequently decided to come out of retirement and apply for the position. On August 12, 2002, the parties came to an agreement, and Wirt signed a one-year contract at a reduced salary of $15,900.96. The reduced salary was the amount the District paid non-continuing contract teachers with Wirt’s education and experience. Wirt did not contest the reduced salary.

[¶ 5.] Wirt taught the half-time kindergarten class during the 2002-2003 school year. However, on March 31, 2003, the Board voted to nonrenew her contract for the 2003-2004 school year. Wirt was notified of the Board’s decision and requested the due process hearing that continuing contract teachers are entitled to receive under SDCL 13-43-6.2. The Board denied Wirt’s request because it believed that, as a result of her retirement, she was no longer a continuing contract teacher.

[¶ 6.] Wirt appealed to circuit court pursuant to SDCL 13 — 46—l. The circuit court granted Parker summary judgment, concluding that Wirt’s retirement terminated her status as a continuing contract teacher. Wirt appeals raising the issue whether her resignation terminated her continuing contract status.

Analysis and Decision

[¶ 7.] This matter is before the Court on appeal from the circuit court’s grant of summary judgment. Our standard of review of summary judgments was stated in Kimball Investment Land, Ltd. v. Chmela:

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

2000 SD 6, ¶ 7, 604 N.W.2d 289, 292 (internal citations omitted).

[¶ 8.] The effect of Wirt’s resignation on her continuing contract status is a question of first impression in this jurisdiction. Wirt concedes that if she lost that status, the District could nonrenew her 2003-2004 teaching contract without just cause or hearing. However, Wirt contends that she was a continuing contract teacher, and as such, she should have been afforded the rights and protections in SDCL 13-43-6.1 (termination only for just cause) and SDCL 13-43-6.2 (teacher must be furnished statement of reasons for termination and a hearing to refute them).

[¶ 9.] SDCL 13 — 43—6.3 defines continuing contract status. We construe such statutes under the following rules:

The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given them plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Moreover, “[i]n arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning.” “SDCL 2-14-1 requires that words in a statute are to be understood in their ordinary sense.”

In re West River Elec. Ass’n, Inc., 2004 SD 11, ¶ 21, 675 N.W.2d 222, 228 (internal citations omitted).

[¶ 10.] The pertinent language of SDCL 13-43-6.3 provides that continuing contract status is afforded for “a teacher [that] is in or beyond the fourth consecutive term of employment....” The meaning of the words “consecutive” and “term of employment” are dispositive. Wirt suggests the term “consecutive” means successive or to follow successively without interruption. We agree.

[¶ 11.] To define the phrase “term of employment,” Wirt relies on an Attorney General’s Opinion that defined a “term of employment” as the “ordinary school term.” However, the 1980 Op. Att’y Gen. interpreted a predecessor statute that has been repealed.

[¶ 12.] This Court, in a different context, has also considered the meaning of a teacher’s term of employment. We held that for the purpose of receiving health benefits under a negotiated master contract, “[n]on-returning employees maintain their status as employees until the expiration of the negotiated agreement.” Hill City Educ. Ass’n v. Hill City School Dist. 51-2, 2004 SD 47, ¶ 13, 678 N.W.2d 817, 821. However, we specifically noted that we did not interpret that case to “include those employees who ... retired or voluntarily quit ...” Id. ¶ 4, n. 3. Thus, Hill City is also inapplicable.

[¶ 13.] Wirt contends that she should be deemed to be in consecutive “terms of employment” because:

[S]he incurred no break in service from the 2001-2002 to the 2002-2003 school year. With no break in service, her employment with the District was continuous and she was in or beyond her fourth consecutive term of employment.

However, this argument overlooks two significant facts. First, after the 2001-2002 school year, Wirt retired, withdrew her accumulated sick leave, and voluntarily severed her employment relationship with the District. Second, when Wirt was reemployed, she returned under a one-year employment contract for non-continuing contract teachers.

[¶ 14.] Wirt also overlooks legal authorities generally holding that there is a break in service upon resignation. “[A] teacher’s contract of employment may be terminated by ... resignation ... [if] offered by the teacher with intent to terminate ... employment....” Johnson v. Vernon Parish School Bd., 670 So.2d 373, 375-376 (La.Ct.App.1996) (concluding that the employment contract between a teacher and the school board was terminated when the teacher voluntarily resigned). Accordingly, one annotation collects cases from eleven states taking the view that, although different statutory schemes are construed, resignation terminates tenure, i.e. continuing contract status. See generally, Michael G. Walsh, Annotation, Termination of Teacher’s Tenure Status by Resignation, 9 A.L.R.4& 729 (2004).

[¶ 15.] The most apposite of these cases is Kilgore v. Jasper City Bd. of Educ. because it specifically determined “whether a teacher loses his or her tenure if he or she resigns at the end of one school year and is rehired by the same Board before the beginning of the next school year.” 624 So.2d 603, 604 (Ala.Civ.App. 1993). The analytically similar tenure statute construed in Kilgore provided “that a teacher shall attain continuing service status (tenure) when ‘such teacher shall have served under contract as a teacher in the same ... school system for three consecutive school years and ... be reemployed in such ... school system the succeeding school year.’ ” Id. at 605. The facts of that case reflected that a tenured teacher tendered his resignation in May, 1990, effective June, 1990, and the Board of Education (BOE) accepted the resignation the same day it was tendered. The teacher later sought to rescind, retract, or withdraw the resignation, but the BOE reaffirmed the resignation. The teacher then applied for his old job and was reemployed on the understanding that, because the BOE had accepted his resignation, he would return as a probationary teacher. Because Kilgore accepted the new, non-continuing contract status contract, the court held that “resignation and acceptance thereof effectively and lawfully terminated his employment as a teacher and eliminated his property and tenure rights to that job.” Id. at 605 (quoting Swann v. Caylor, 516 So.2d 699, 701 (Ala.Civ.App. 1987)).

[¶ 16.] The same situation applies here. Wirt’s resignation was a complete termination of her employment relationship with the Parker School District. In an affidavit supporting Parker’s motion for summary judgment, General Counsel for SDRS related that “a public school teacher ... must fully terminate employment with a [school district] and have no guarantee of future employment with that employer in order to receive” the retirement benefits that Wirt received. So also, Wirt could not have withdrawn her accumulated sick leave unless she had “left the school system.” See supra n. 6. Thus, there was a break in Wirt’s term of employment with Parker. Indeed, all of Wirt’s actions, from her resignation through her reemployment, indicated that there was a break in her employment with this school district. The question then becomes whether, through this voluntary break in employment, Wirt waived her continuing contract status.

[¶ 17.] A teacher may waive his or her continuing contract status even in states with statutes that do not require continuous terms of employment. Ultimately, “[w]hile a teacher is entitled to abandon his or her tenure rights, whether the teacher actually abandons those rights depends on his or her ‘intention with respect to the matter.’ ” Lucio v. School Bd. of Independent Sch. Dist. No. 625, St. Paul, Minnesota, 574 N.W.2d 737, 742 (Minn.Ct.App.1998) (citing Board of Educ. of City of Minneapolis v. Sand, 227 Minn. 202, 34 N.W.2d 689, 694 (1948)).

[¶ 18.] Here, all of Wirt’s actions reflected an intent to abandon her continuing contract status. First, she voluntarily resigned and began retirement under circumstances requiring an intent to completely sever her employment relationship with no reemployment rights. Second, she withdrew her accumulated sick leave, something that was possible only if she had permanently left the school district. Finally, after seeking new employment with the school district after retirement, she accepted a new contract that contained terms applicable to non-continuing contract teachers. Under such circumstances, where a teacher resigns, the school board accepts the resignation, and the teacher voluntarily enters into a one-year teaching contract without protest, the teacher waives the right to a continuing contract of employment. See State ex rel. Brubaker v. Hardy, 5 Ohio St.2d 103, 214 N.E.2d 79 (1966) (citation omitted).

[¶ 19.] Wirt, however, argues that she could not waive continuing contract status because that status is based on statutory public policy and is not contractual in nature. However, waiver may occur whether the right is conferred by statute or by contract. “[W]aiver occurs when: [o]ne in possession of any right, tvhether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of the right.” Flugge v. Flugge, 2004 SD 76, ¶ 18, 681 N.W.2d 837, 842 (citation omitted) (emphasis added).

[¶ 20.] It is also significant that there is no evidence of school district conduct attempting to violate the spirit of the continuing contract law. Instead, Wirt unilaterally and voluntarily waived her continuing contract status by resignation and retirement. Therefore, this type of waiver does not violate public policy. The purpose of continuing contract statutes “is to provide teachers with employment security and to prevent dismissals without cause.” Hicks v. Gayville-Volin School Dist., 2003 SD 92, ¶ 14, 668 N.W.2d 69, 75. See Nordhagen v. Hot Springs School Dist. No. 23-2, 474 N.W.2d 510, 513 (S.D.1991); Jager v. Ramona Bd. of Educ., Ramona School Dist., 444 N.W.2d 21, 27 (S.D.1989). Wirt was not deprived of that protection at any time prior to her decision to voluntary resign and terminate her employment relationship with the Parker School District.

[¶ 21.] We finally note that there is nothing in the statutes or case law indicating that the purpose of the continuing contract law is to enable teachers to retain their status indefinitely, even after a voluntary resignation and termination of the employment relationship. On the contrary, “if school districts could not hire retired teachers without thereby immediately returning them to continuing contract status, ‘retirement’ would be illusory: ‘retired’ teachers would be able to bump less-senior ‘permanent’ teachers.” Thomas v. Independent School Dist. No. 2142, 639 N.W.2d 619, 622 (Minn.Ct.App.2002).

[¶ 22.] Consequently, we see no violation of public policy here. We agree that “as long as a resignation on the part of a teacher is voluntary and without coercion or duress, it will serve to break the continuity required under the tenure law and ' is not against public policy.” Williams v. Lafeyette Parish School Bd., 533 So.2d 1359, 1362 (La.Ct.App.1989) (citations omitted).

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . There is no allegation that this reduction violated Wirt's rights.

      . SDCL 13-46-1 provides:
      From a decision made by any school board, or by a special committee created under any provision of the school law relative to a school or school district matter or in respect to any act or proceeding in which such officer, board, or committee purports or assumes to act, an appeal may be taken to the circuit court by any person aggrieved, or by any party to the proceedings, or by any school district interested, within ninety days after the rendering of such decision. Provided, however, that all legal actions relative to bond issues must be started within ten days.

      . SDCL 13-43-6.1 provides:
      A teacher may be terminated, by the school board, at any time for just cause, including breach of contract, poor performance, incompetency, gross immorality, unprofessional conduct, insubordination, neglect of duty, or the violation of any policy or regulation of the school district.

      . SDCL 13-43-6.2 provides:
      The superintendent or the school board shall give written notice of the termination to the teacher; a written statement of the reasons for the termination; access to the employment records of the teacher; the opportunity to the teacher for a hearing before the school board to present reasons in person or in writing why the termination should not occur; and the opportunity to be represented. The hearing provided by this section shall be requested within fifteen days after receipt of the notice. The school board shall conduct the hearing not sooner than fourteen days, nor later than forty-five days, after receipt of the teacher’s request for hearing. The parties may waive the time limitations provided for in this section.

      .SDCL 13-43-6.3 provides:
      Until a teacher is in or beyond the fourth consecutive term of employment as a teacher with the school district, a school board may or may not renew the teacher's contract. The superintendent or school board shall give written notice of nonrenewal by April fifteenth but is not required to give further process or a reason for nonrenewal. After a teacher is in or beyond the fourth consecutive term of employment as a teacher with the school district, §§ 13-43-6.1 and 13-43-6.2 apply to any nonrenewal of the teacher's contract. On or before April fifteenth, the school board shall notify the teacher in writing of its intention to not renew the teacher’s contract.
      Acceptance by the teacher of an offer from the district to enter into a new contract with the teacher shall be in the manner specified in the offer. Failure of the teacher to accept the offer in the manner specified shall result in the termination of the existing contract between the teacher and the district at the end of its term.

      . The negotiated agreement between Parker and the Teacher's Union stated:
      If after fifteen (15) years of continuous employment, a certified employee leaves the school system, said employee shall be reimbursed for one-third of his/her accumulated sick leave days available at the close of the school year at a rate of $ 100 per day. (Emphasis added.)

      . Citing; National Educ. Ass’n. Inc. v. Lee County Bd. of Public Instruction, 467 F.2d 447, 452 (5thCir.1972); Kilgore v. Jasper City Bd. of Educ., 624 So.2d 603, 604-605 (Ala.Civ.App.1993); Evard v. Bd. of Educ. of City of Bakersfield, 64 Cal.App.2d 745, 149 P.2d 413, 416 (1944); Gardner v. Hollifield, 96 Idaho 609, 533 P.2d 730, 732 (1975); Miller v. Barton School Township of Gibson County,
        215 Ind. 510, 20 N.E.2d 967, 968 (1939); Carpenter v. Bd. of Educ. of Owsley County, 582 S.W.2d 645, 646 (Ky.1979); Pitcher v. Iberia Parish School Bd., 280 So.2d 603, 605 (La.Ct.App.1973); Carson City School Dist. v. Burnsen, 96 Nev. 314, 608 P.2d 507, 508 (1980); Alendo v. Bd. of Educ. of Penasco Independent School Dist. No. 4, 99 N.M. 168, 655 P.2d 1012, 1016 (1982); State ex. rel. Ford v. Bd. of Educ. of City School Dist. of City of Cleveland, 141 Ohio St. 124, 47 N.E.2d 223, 225 (1943); Jacobs v. School Dist. of Wilkes-Barre Tp., 355 Pa. 449, 50 A.2d 354, 356 (1947).


source: Caselaw Access Project

author: GRIMSONj Judge. MORRIS, Judge BURKE, Chief Justice

license: Public Domain

text:
    STATE of North Dakota, Respondent, v. Lester TJADEN, Appellant.
    No. 255.
    Supreme Court of North Dakota.
    March 7, 1955.

      Hyland, Foster & Conmy, Bismarck, for appellant.
    E. T. Christianson, Atty. Gen., T. H. H. Thoresen, Asst. Atty. G.en., Norman B. Jenson, State’s Atty., Bismarck, for respondent.
   GRIMSONj Judge.

On the evening of October 3, 1952, three carloads of people from Mandan, members of the Salvation Army, attended a meeting at Minot, North Dakota. After the meeting they left Minot about 10:30 P.M., and proceeded south towards Bismarck on U. S. Highway No. 83. When about a mile and a half north of Bismarck one of the cars, driven by John L. Phillips, became low on gasoline. At that time his was the middle car. He drove to the west side of the road, signaled the advance car, driven by Lt. Dave Tollerud, to return, and directed the car behind him, driven by Eugene Ellsworth, to drive up behind his car on the west side of the road. The state’s witnesses claimed these cars were parked two or three feet west of the pavement. Lt. Dave Tollerud carefully noted their position. It was then arranged that Lt. Tollerud, should go into Bismarck for gasoline. In the meantime some of the people in the two remaining cars changed seats or got out and walked around. The time then was about one o’clock A.M. of October 4th.

That same evening Lester Tjaden was driving the evening passenger bus from Minot to Bismarck on Highway No. 83. As he approached Bismarck coming over a little rise he saw a car coming from the south and later noticed the tail lights of a car ahead of him. The patrolman testified that the rise was a half mile north of the place of collision. The defendant said it was a block or block and a half. He claims the lights of the north bound car blinded him so he did not see the tail lights anymore but that he was driving on the west side of the payment. He says that just as he passed the north bound car he saw the Ellsworth car right in front of him. He claims it was standing three or four feet in on the pavement. He had reduced his speed from 50 miles down to 45 miles per hour according to his testimony and applied his brakes. Immediately the collision occurred. The right front corner of -the bus collided with the left rear of the Ellsworth car which was demolished. The Phillips car was side-swiped and pushed across the ditch into the field. The bus came to a stop on the west shoulder of the highway some 100 feet, according to defendant’s testimony, south of the point of collision. The right one-half of the front of the bus and the right front door were badly damaged.

Mr. Phillips had seen the headlights of the bus and had endeavored to warn those in the cars but they only had time to look through the back window as the bus crushed them. After the collision Mr. Phillips found that some members of his party were injured. He ran to the bus driver asking him to go into town for help and an ambulance. Amongst the injured in the Ellsworth car was one, Edward Geier. Soon an ambulance came and took him to a hospital where he was treated and was found to be seriously injured. A surgical operation was performed on him. He died on October 14, 1952 of pulmonary embolism.

Thereafter the State of North Dakota brought proceedings against defendant, Lester Tjaden, charging him with manslaughter in the first degree while en-r gaged in the commission of a misdemeanor, to wit: reckless driving. The defendant was found guilty of manslaughter in the second degree, and sentenced to serve one year in the county jail.. A motion for a new trial was made and denied. The defendant appealed from the judgment and the order denying the motion for a new trial. Many assignments of ' error were made both on the motion for a new trial and on appeal, and in the briefs these errors are classified by the defendant under six headings as follows:

1. Denial of the motion to quash the information.
2. Admission of evidence.
3. Misconduct of counsel * * * Prejudicial argument.
4. The insufficiency of the evidence to show that Geier was killed by the accused.
5..' Error in the instructions of the court.
6. Failure to define culpable negligence and the insufficiency of the evidence to prove culpable negligence.

We will, therefore, consider only these subjects on appeal. All other assignments of error are deemed abandoned. Olson v. Armour & Co., 68 N.D. 272, 280 N.W. 200; Clark v.' Josephson, N.D., 66 N.W.2d 539 and cases cited.

Prior to the opening of the trial the attorney for the defendant made a motion to quash the information on the ground that it did not state sufficient facts to constitute a public offense and did not substantially conform to the requirements of the code in that it did not state sufficient particulars to give the court and defendant notice of the offense intended to be charged. At the same time he filed a request for a bill of particulars. A bill of particulars was furnished. Then at the opening of the trial the motion to quash was renewed on the same grounds and the claim made that the bill of particulars was not sufficient. After argument the state furnished an amended bill of particulars. The motion to quash was again renewed and denied. This was again urged in a motion in arrest of judgment which was also denied.

Sec. 29-1110, NDRC 1943, provides that the information shall be valid and’sufficient if it charges the offense for which the defendant is being prosecuted “by using the name given' to the offense by statute and sufficient particulars to give the court and the defendant notice of the offense intended to be charged.” The name of the defendant must be stated. Sec. 29-1114, NDRC 1943. Words and phrases are to be construed according to their usual acceptance, or according to their legal signification. Sec. 29-1129, iNDRC 1943.

After stating the name of the defendant and that he committed the crime of manslaughter in the first degree by reckless driving the information set out almost in the language of the statute that the manslaughter was perpetrated by the commission of a misdemeanor, to wit, reckless driving., Then the amended bill of particulars added that the defendant “while so driving in a careless, heedless, and reckless manner did not properly observe other vehicles upon the said highway and failed to have his motor vehicle under proper and reasonable control, and thereby did run into and collide with another vehicle upon said highway and did then and there cause bodily injuries to one, Edward Geier, then and there an occupant of another vehicle, from which injuries said Edward Geier died.”

It is not necessary to state in an information the details of the acts which constitute the crime charged when the essential elements of the crime are set forth sufficiently to enable a person of common understanding to know what is meant or intended. State v. Egan, 47 S.D. 1, 195 N.W. 642. One test of the sufficiency of an information is whether it will protect the accused against a subsequent prosecution for the same offense.

“Under modern rules as to certainty, the indictment, information, or complaint is sufficient if it states specifically the elements of the offense with sufficient particularity to apprise accused of the crime charged and to enable him to prepare his defense and permit a conviction or acquittal to be pleaded in bar of a subsequent prosecution for the same offense.” 42 C.J.S. Indictments and Informations, § 100, p. 979. See also 5, Berry, Automobiles, Sec. 5.347 p. 512; State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480, 491.

The information in the instant case meets these tests and the denial of the motion to quash was proper.

Defendant makes nine assignments of error upon the admission of evidence. All were on errors. assigned on the overruling of objections to questions propounded by the attorneys for the state. The first two questions had reference tó the situation existing right after the collision. The third was a question as to the condition of the weather and the visibility at the time of the collision. Then the defendant objected to some questions on the examination of witness, Phillips, as to his reasons for stopping and as to the distance the bus traveled after the collision. Then there are some objections to the question as to what was done with the injured and their condition. Most of the questions had reference to the conditions existing immediately after the collision and were as to matters that were really a part of the res gestae. Then there is a series of questions asked the doctor as to whether the injuries were the cause of Mr. Geier’s death. The doctor testified to his examination and treatment of the deceased. He was called to give his opinion based thereon. There was no error in allowing him to give his opinion. The questioning of the patrolman, who arrived immediately after the accident and had made a plat indicating some skid marks on the highway, was objected to as improper re-direct examination. Such examination is clearly within the discretion of the trial court. A question of the patrolman as to whether the occupants could comfortably sit in the automobile, standing on the shoulder of the highway, two feet west of the black top was objected to as improper hypothetical question. There was evidence on which that question could be based. The patrolman had had many years of experience and qualified as an expert.

The rulings on all these questions were carefully reviewed by the court on the motion for a new trial. The court knew the situation existing at the time the questions were asked. He had the advantage of knowing all of the circumstances and incidents happening during the trial. The line of demarcation between evidence that is harmless and that which is prejudicial is often a very shadowy one, and may depend on what happens during the trial. Under the circumstances shown in the record it does not appear there were any prejudicial errors in the admission of testimony.

The defendant claims that portions of the argument for the state were prejudicial. The argument was taken down in shorthand by: the reporter. The counsel for the defendant made no interruptions or objections during the argument. Afterwards and out of the presence of the jury the defendant took exception to certain portions of the argument and moved for a mistrial. The motion was denied. That is alleged as an error. Portions of the argument called to the court’s attention differ somewhat from the portions set out in the brief and argued in this court. One assignment set forth in both was the statement pf counsel in commenting on the death of Mr. Geier that, “The only way that a person dies is for the heart to stop. He doesn’t die any other way. When the heart stops the person dies and of course something caused that heart to stop.” Then he goes on and talked about embolism and internal bleeding. The quoted portion is what is particularly objected to as the testimony of.the attorney. After all, what counsel stated was a matter of common knowledge and such matters cannot be said to be prejudicial.

Another objection" made before the trial court and argued here is that counsel for the state made an appeal for sympathy. The portion objected to was made in the rebuttal argument after defendant’s counsel had made his address to the jury; The assistant attorney general said defendant’s counsel had “mentioned the mild mercy of Christmas.” He then called attention to one family lacking that kind of a Christmas because of the negligence of the defendant and continued; “So I say as far as sympathy is concerned I think it is just as much on one end as on the other.” Thus it appears that the “Christmas mercy” was first brought into the argument by defendant’s counsel. The assistant attorney general’s remarks bring out that “Christmas mercy” applied equally to both sides.

Defendant’s counsel objects to a reference made by the assistant attorney general to the fatal happenings on our highways. In that connection, however, state’s counsel said “This simply must not enter into a deliberation of this kind.” The losses on the highways are matter of common knowledge and the temarks of counsel amount to a warning to the jury not to take that into consideration.

Objection is made to the statement made by the assistant attorney general: “You have driven on the highway, so I have driven there also. We know that lights do not blind us at that distance.” The last sentence at least is not proper but in view of the court’s instructions cannot be said to be prejudicial.

Other objections made on the argument are that the assistant attorney general misstated testimony and made arguments not based on the testimony. Whether he had or not was clearly a matter for the jury on the instruction of the court afterwards given as follows:

“Statements of counsel, members of the jury, are not evidence. It is their right and privilege, and it is their duty, to state the evidence as they understand it, but if any statements are made by counsel in the heat of argument that are not supported by the evidence in the case introduced before you, you are to disregard such portion of their statements and are to consider only the evidence given by the witnesses on the stand before you in this case. Comment of counsel is not evidence in this case. You are the sole judges of the evidence.”

The statements of counsel for the state may have been somewhat improper but when we consider in that connection the instructions of the court, we cannot say that those statements were a sufficient reason to cause a mistrial.

The granting of a mistrial is a serious matter. It cancels all proceedings up to that time and requires a new start to be made. That should not be done unless something has happened of such a serious nature as to cause manifest injustice by the continuation of the trial.

A mistrial should be granted only in the furtherance of justice. 53 Am.Jur. Trial, Sec. 967, p. 679; Heiler v. Goodman’s Motor Express Van & Storage Co., 92 N.J.L. 415, 105 A. 233, 3 A.L.R. 336.

“The granting of a mistrial is an extreme remedy and voids all proceedings taken in the case up to that time. All the authorities agree that the practice should be resorted to only ‘when further proceedings therewith would be productive of great hardship or manifest injustice’. Usborne v. Stephenson, 36 Or. 328, 58 P. 1103, 1104, 48 L.R.A. 432, 437. In such cases only where something has happened to make it apparent that justice will not be served by continuance of the trial is the granting of a motion for a mistrial the proper remedy.” Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282, 292.

In State v. Braathen, 77 N.D. 309, 43 N.W. 2d 202, 206, we held: “The declaration by the trial court of a mistrial is a stringent step to be taken by the court upon the development of some fact or occurrence that renders further proceedings nugatory.”

The trial judge has great discretion in the matter of granting such a motion. He had heard the argument and had seen its effect upon the jury. His decision will not be reversed unless a manifest injustice appears. That does not appear to be the situation in the case at bar.

The defense contends that it has not been established that Geier was killed by the actions of the defendant. That question was raised by motions for “dismissal” and for a “directed verdict of acquittal” made at the close of the testimony. On his motion for new trial and on appeal he included that as one of the specifications of error. In support of that point defendant cites Sec. 12-2728, NDRC 1943, which provides that “No person can be convicted of murder, manslaughter, nor of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused as alleged, are established as independent facts, the former by direct evidence and the latter beyond a reasonable doubt.” He contends the state’s proof is not sufficient under this statute.

In State v. Sogge, 36 N.D. 262, 161 N.W. 1022, the history of this statute is set forth. Originally there was no distinction between the proof required for the killing and the fact of the killing by the accused. Penal Code Territory of Dakota 1877, Sec. 239. By 1895 this had been changed to read as it now does, Sec. 7055, RGND 1895. Judge Christianson in that case construes this statute as requiring the death to be proven by direct evidence while the act of the defendant in causing it may be proved by either direct evidence or by circumstantial evidence which establishes that fact beyond a reasonable doubt.

In State v. Gibson, 69 N.D. 70, 284 N.W. 209, 212, it is held:

“(1) It is only the fact of death that must be established by direct proof, and (2) The fact of the killing by the accused as alleged must be established beyond a reasonable doubt, but may be established by any competent evidence either direct or circumstantial, including a confession or admission by the accused.”

In the case at bar the evidence directly establishes that Edward Geier received injuries in the collision, his transportation to the hospital, his treatment by the doctor and his death. We are satisfied that his death is established by direct proof as required.

Defendant, however, contends that there is not sufficient proof to find the defendant guilty of causing Geier’s death beyond a reasonable doubt. He bases that on the testimony of Dr. Owens, who attended Mr. Geier and who testified on cross-examination: “Q. As I understand your testimony, Doctor, you have told us you cannot be sure that this embolism resulted from the abdominal injury? A. That is right.” He was also asked: “Q. But, of course, you do not know for sure whether it did develop from that, do you? A. No, I couldn’t say positively.” The doctor, however, testified that when he was first called on the early morning of October 4, 1952, to attend Mr. Geier in the hospital he found him “in shock from a recent accident.” He described the injuries Mr. Geier had received which were found to be internal as well as external. ’ Surgery was found to be absolutely necessary and was done the next morning. Considerable internal bleeding had occurred. Because of the condition found, six feet of the lower bowel and the colon were removed and other internal repairs made. A clamp was used to hold the bowel in place. After, that Mr. Geier was delirious. That clamp later became displaced. Mr. Geier was put in an oxygen tent. He died suddenly on the evening of October 14 of pulmonary embolism. The Doctor explains that pulmonary embolism is caused by a blood clot suddenly loosened, pumped by the heart into the large blood vessel of the lung and shutting off the blood supply to the lung. The doctor testified that “It is generally known that pulmonary embolism, or blood clots, occur not too infrequently following injuries of this type or following operations * * *, I would say that the primary cause of death was a pulmonary embolism brought on or aggravated by the fact that he was in bed on account of injuries that he had sustained, with this possibility that this laceration in the abdomen might have been the source of the embolism that went to the lung.”

The doctor’s testimony disclosed no other source of the embolism. The testimony shows an unbroken chain of events commencing with the injuries received in the collision and ending with Mr. Geier’s death. We áre satisfied that the jury could find beyond a reasonable doubt that the injuries caused by the collision were the cause of Mr. Geier’s death.

Defendant’s next claim of error is that under the court’s instructions the jury could find the defendant guilty on proof of ordinary negligence. He cites the court’s instructions on reckless driving. The court duly instructed the jury that homicide is manslaughter in the first degree when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. The misdemeanor alleged in this case was reckless driving. On that the court charged the jury as follows :

“Any person shall be guilty of reckless driving if he drives a vehicle upon a highway:
(1) Carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others;
(2) Without due caution and circumspection ; or
(3); At a speed or in a manner to endanger or likely to endanger any person or the property of another.
“You will note that reckless driving may be committed in any one of these three ways.”

According to that charge a jury could find the defendant guilty of manslaughter in the first degree if it' found that he was driving a vehicle, upon the highway “without due caution and circumspection.” Defendant contends that the phrase “without due caution and circumspection” as ordinarily construed .amounts to nothing more than ordinary negligence • and as such do'es not amount to a degree of negligence sufficient to find one guilty of reckless driving. In Ex parte Chemosky, Tex.Cr.App., 217 S.W. 2d 673, 674, it is held: .“The words1‘without due caution or circumspection,’ standing alone, import nothing more or less than what is sometimes referred to as ordinary negligence, which is .a failure to exercise that degree of care that a person of ordinary prudence would exercise under the same or similar circumstances.”

, The use of that phrase in the criminal statute has been construed in a number of cases and it has been generally held that in order to constitute a crime something more than what is expressed in that phrase as ordinarily understood must be stated.

It is generally held that there must be a higher degree of negligence than is required to establish negligent default in a civil action. It must include some element showing a reckless disregard for the safety of others. The term generally used is “criminal negligence” which cannot be implied from the use of the phrase “without due caution and circumspection” alone. People v. Hurley, 13 Cal.App.2d 208, 56 P.2d 978; State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480; Phillips v. State, 204 Ark. 205, 161 S.W.2d 747; People v. Seiler, 57 Cal.App. 195, 207 P. 396;. Croker v. State, 57 Ga.App. 895, 197 S.E. 92. Neesen v. Armstrong, 213 Iowa 378, 239 ,N.W. 56, 8 Blashfield Cyc. of Automobile, Sec. 790, p. 927.

The history of our statute, Sec. 39-0803, 'NDRC 1943, shows that there was originally no intent to provide three ways in which reckless driving could be committed. This section was first enacted as Sec. 3 of Highway Traffic Regulations, Chapter 162, S.L. 1927, p. 247. It 'was never amended or changed until the codification of 1943, Then the codifiers re-arranged the punctuation and language somewhat. We state below, side by side, that section as originally enacted in 1927, and as codified in 1943. ■

Sec. 3, Chap. 162, S.L.1927
“Any person who drives, any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of • the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so'as to endanger or* be likely to' endanger any person or property, shall be guilty of reckless driving, and upon conviction shall be punished as provided in Section 63 of this Act.” Chap. 162,-S.L.1927, p. 247.
Sec. 39-0803, NDRC 1943
“Any person shall be guilty of reckless driving if he drives a vehicle upon a ■highway:
“1. Carelessly and heedlessly in willful or wanton disregard of the rights or safety of others;
“2. Without due caution and circum- ■ spection; or
“3. At a speed or in a manner to endanger or likely to endanger any person.” Sec. 39-0803 NDRC 1943.

The revisor’s note to Sec. .39-0803, NDRC 1943, in the report of the Code Revision Commission to the 28th legislative assembly-reads: “This section is * * * revised in form for clarity without changing the meaning.”

By comparing these two sections it is clear that the only change made is in the punctuation and re-arrangement of the language of the section. The intent of the Code Commission not to change the meaning of the statute is borne out by the comparison as well as by the revisor’s note.

This court has repeatedly held that changes in punctuation and phraseology in codification do not affect the original meaning of the law. In State ex rel. Kositzky v. Prater, 48 N.D. 1240, 1248, 189 N.W. 334, 337, this court says:

“The general presumption obtains that the codifiers did not intend to change the law as it formerly existed. Braun v. State, 40 Tex.Cr.R. 236, 49 S.W. 620, 622; U. S. v. Ryder, 110 U.S. 740, 4 S.Ct. 196, 201, 28 L.Ed. 308. Changes made in the revision of statutes by alteration of the phraseology will not be regarded as altering the law unless there is a clear intent so to do. (Citing cases.) In ascertaining the intention of language used in á code revision, reference may be had to the prior statute for the-purpose of ascertaining the legislative intent. Becklin v. Becklin, supra [99 Minn. 307, 109 N.W. 243]; Stevens v. Bridge Co., 115 Me. 402, 99 A. 94.”

This holding has been confirmed by this court in Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.2d 891; State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 864; Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 35 N.W.2d 137.

From this comparison of the original law and the codification thereof; it is clear that there was no intention to'set out three separate ways of committing reckless driving. Under the original law a driver commits reckless driving either by driving “carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others,” or by driving “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.” Driving only, “without due caution and circumspection” was not intended to set out a separate way of committing reckless driving. The original intent of Section 3, Chapter 162, S.U1937, still controls Sec. 39-0803, NDRC 1943.

We are, therefore, constrained to hold that the instruction of the court that any one of the three ways enumerated in Sec. 39-0803, NDRC 1943 would constitute reckless driving was erroneous.

However, under the circumstances of this case such error was not prejudicial. The jury did not find the defendant guilty of manslaughter in the first degree and, therefore,- did not hold him guilty of reckless driving on which the erroneous instruction was given. Instead the jury found the defendant guilty of manslaughter in the second degree. Reckless driving is not included in a conviction on second degree of manslaughter;- Defendant could not be prejudiced by an erroneous instruction on first degree manslaughter when the jury did not find him guilty thereof. National Bank v. Lemke, 3 N.D. 154, 159, 54 N.W. 919; Worlitz v. Miller, 48 N.D. 335, 340, 184 N.W. 806.

The defendant’s final claim is that -the court failed to definé “culpable negligence” which is necessary'in order-far the jury to find the defendant guilty of manslaughter in the second degree. Sec. 12-2719, NDRC 1943.

After stating the material allegations of the complaint which “must be proven béyond a- reasonable doubt,” the court says-: -“It will be-sufficient in that respect-if at this time it' -is proven beyond a reasonable doubt that the -death of Edward Geier'was brought about by the defendant driving "said passenger bus in a culpable, negligent- and reckless manner”. Later the court gave this definition of culpable negligence:

“ ‘Culpable negligence’ has reference to blameable, willful, wanton, criminal lack of care and diligence under all of the surrounding circumstances and conditions known to the person to be charged therewith and implies an indifference and wanton disregard of consecuences and a reckless indifference of the lives and safety of others.” (Emphasis supplied.)

The courts in defining culpable negligence have generally held that the essentials thereof are blameable and wanton lack of care evidenced in a reckless indifference to the safety and rights of others. In the case of State v. Gulke, 76 N.D. 653, 38 N.W.2d 722, 723, this court held:

“The term culpable negligence as used in Section 12-2719, RCND 1943, defining manslaughter in the second degree as applied to the operation of a motor vehicle, implies a total lack of care which is properly described as being in a reckless and heedless manner with utter disregard for the lives and limbs of persons upon the highway.”

In Coleman v. State, 208 Miss. 612, 45 So.2d 240, it is held that in a statute providing “that the killing of a human being through culpable negligence shall be manslaughter, ‘culpable negligence’ should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequence to others.” In State v. Cope, 204 N.C. 28, 167 S.E. 456, 458, the court said: “Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.” See also Smith v. State, 197 Miss. 802, 20 So.2d 701, 161 A.L.R. 1; State v. Melton, 326 Mo. 962, 33 S.W.2d 894; Cannon v. State, 91 Fla. 214, 107 So. 360; State v. Bates, 65 S.D. 105, '271 N.W. 765; Nail v. State, 33 Okl.Cr. 100, 242 P. 270, 8 Blashfield Cyclopedia of Automobile Law and Practice, Permanent Edition, Sec. 5500, p. 560, 5 Berry, Automobiles, Sec. 5.364, p. 539.

Measured by these definitions the instruction of the court, above quoted, is sufficient.

In connection with the attack on the definition of culpable negligence it is argued on behalf of the defendant that the evidence is insufficient to establish culpable negligence on his part.

Oklahoma has a statute identical with our Sec. 12-2719, NDRC 1943, defining manslaughter in the second degree. In Nail v. State, 33 Okl.Cr. 100, 242 P. 272, the court holds that negligence to be a crime must be culpable. The court says:

“By no means every instance where one person is injured or killed by a vehicle driven by another do the circumstances constitute a crime. There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased?”

The court then holds that “The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.” In that case the defendant drove into the rear of a car, driven off the pavement except for 18 inches, while the deceased was replacing a tire on the carrier. The court says:

“Taking the evidence here which tends to sustain the verdict of the jury that the defendant in driving her car against the deceased was guilty of culpable negligence, it will be seen that the jury might find that the defendant upon a highway, where there were various persons traveling in both directions, and where a reasonable person must expect frequently to overtake or pass other vehicles, drove at a high rate of speed, without having her car under control, and without watching the highway for other travelers with whom she might have collision, and without any obstruction to her view, drove against the deceased who had stopped at the edge of the highway with his car in plain sight, and caused his death.”

The court held that this amounted to culpable negligence and sustained a verdict of manslaughter in the second degree.

In the case of Wilson v. State, 70 Okl.Cr. 262, 105 P.2d 789, 792, one Daniels was driving west on U. S. Highway No. 66, on the right-hand side of the road near the north side of the pavement at about 30 or 35 miles an hour after 10:00 o’clock P.M. His tail lights were burning. A car passed him going east. Just then one, Wilson, driving west at 40 or 50 miles an hour, failing to observe the east bound car in time and not having her car under proper control, struck the left rear wheel of the Daniel’s car which caught fire and burned. The court said:

“Defendant, (Wilson) according to the evidence, was driving at a fast rate of speed, estimated up to fifty miles an hour. She could see the lights of the (east hound) car * * * coming towards her. * * * The defendant, seeing her perilous position, and not having the car under proper control, drove into the back end of the Daniels car, and the child, Raymond Daniels, was killed, as shown by the evidence.”

The court held these facts constituted culpable negligence and affirmed the verdict of second degree manslaughter.

In the case of State v. Ritter, Mo., 2 S.W. 2d 753, 754, the defendant, driving south at a. speed of 25 miles or more attempted to pass a row of cars ahead of him on a winding road, 24 feet wide, which at the time was wet and slippery. A Cadillac car came, in view proceeding slowly north on the far east side of the road. In trying to drive between the row of cars and the Cadillac defendant’s car skidded and swerved into the north hound Cadillac as a result of which a woman in that car was killed. The court says:

“With a hard surface of only 24 feet to accommodate vehicles, and without sufficient room to safely pass between machines meeting and going in opposite directions, upon a wet and slippery surface, and upon a winding road curving in angles, defendant drove on the left side of the road; thus negligently taking the chance of meeting an automobile coming in the opposite direction with fatal results. * * * We think the evidence prima facie shows defendant guilty of culpable negligence; thus rendering defendant’s guilt a question for the jury. State v. Scheufler, Mo. Sup., 285 S.W. 419; State v. Renfro, Mo. Sup., 279 S.W. 702.”

In Jaquith v. Worden, 73 Wash. 349, 132 P. 33, 37, 48 L.R.A.,N.S., 827, the defendant’s car struck an unlighted machine standing in the street, knocking it against the plaintiff and injuring her. The defendant testified that he was so blinded by the headlight of an approaching streetcar that he did not see the machine until he struck it. It was held that he was guilty of “the most pronounced” negligence. The court said: “He was proceeding in utter disregard of the presence of other travelers or objects ahead-of him. Had he been without eyes or had. he closed them, he would have been in no worse position. To proceed at all in the face of those conditions was at his peril.” (Emphasis supplied.) See also Mathers v. Botsford, 86 Fla. 40, 97 So. 282, 32 A.L.R. 881.

The jury had a right to believe the evidence in the instant case most favorable to the verdict. According to that evidence the Ellsworth car was located on the graveled shoulder of Highway ¡No. 83, about three feet west óf the pavement, facing south. The Phillips car was a few feet straight ahead of the Ellsworth car. The front and rear lights of both cars were burning. The defendant was driving the evening passenger bus leaving Bismarck for Minot at 7:10 P.M. He was, according to schedule to arrive back'in Bismarck at 12:50 A.M. but was a little late. On coming south about 1:00 A.M. over a little rise in the highway a half mile north of where the Ellsworth car was located he saw a car coming north. A little later he saw. the tail lights of the Ellsworth car. He said it was hard to tell whether the lights were moving or not. The north bound car had to pass the 'Ellsworth car before .he would meet it. He claimed the lights on this north bound car blinded him so that he could not see the tail lights anymore. Without ascertaining where the Ellsworth car was or whether anybody was on the side of the road, the defendant on the approach of the north bound car willfully and blindly turned to his right so far that his right wheels were out on the graveled shoulder of the road. He had been going 50 or more miles an hour but on turning out reduced his speed to 45 miles an hour. Just as the north bound car had passed him he saw the Ellsworth car right in. front of the bus. : He was then going too fast and did not have sufficient contr.ol of the bus to stop, but clamped on his brakes. The fatal collision occurred. The force of the collision was so great that the right front corner of the bus crashed into .the left rear of the Ellsworth car, tearing out the.left side of that car.. The deceased was sitting in the driver’s seat. The next morning the patrolmen found rubber skid marks of dual wheels three feet, 9 inches in on'the west, side of the pavement at the place where the .collision occurred.

The evidence thus presents the defendant, driving 50 miles per hour or over, seeing tail lights in front of him, blinded by glaring lights of a north bound car, turning willfully out on the shoulder to pass it, reducing his speed only five miles and without ascertaining that the'way ahead was clear. The pavement was 23 feet wide. ' There was" no evidence that the north -bound car was not properly on its east side of the road. Defendant had plenty of room to pass that car without turning off on-tlie shoulder and if he had done so there would have been no collision. ' "'

The jury could find that the evidence thus showed a total lack of care in not determining whether the lights of the Ells-worth car were moving, recklessness and heedlessness in turning out on the graveled shoulder without knowing that the road ahead was clear, and utter disregard of lives of persons that might be on the highway and particularly those who might be on the shoulder in a normal place of safety.

There was sufficient evidence to-warrant the jury in finding the defendant guilty of culpable negligence and to sustain-a verdict of second degree manslaughter.

The judgment of the district court is-affirmed.

GRIMSON, JOHNSON and SATHRE,. JJ., concur.

MORRIS, Judge

(concurring).

I concur in the opinion prepared by Judge Grimson but, because I believe unnecessary emphasis has been placed upon the definition of culpable negligence, I make these observations :

“Homicide is the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Section 12-2701, NDRC 1943.

Manslaughter in the first degree results when a homicide is “perpetrated without a design to effect death by a person while engaged in the commission of a misdemean- or; *' * Section 12-2717, NDRC 1943. These quotations from the statute lead inescapably to the conclusion that the accidental killing of a human being by the driver of a vehicle engaged in the commission of the crime of reckless driving is manslaughter in the first degree.

In this case the defendant was charged with - manslaughter in the first degree. However,- the jury found him guilty of manslaughter- in the second degree. This is equivalent to finding that the killing charged in the information did not occur while the defendant was engaged hr any of the acts defined by the statute as reckless driving hut that it did occur in a manner falling within the definition of manslaughter in the second degree, which is defined- by Section 12-2719, NDRC 1943 as follows:

“Every killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

The Supreme Court of South Dakota, in construing and applying an identical statute, says:

“The language of the statute shows clearly that culpable negligence is only one of many unlawful acts which may constitute manslaughter in the second degree.
“Appellant cites the case of State v. Bates, 65 S.D. 105, 271 N.W. 765, wherein the court defined culpable negligence and decided that when culpable negligence is proved the act may amount to manslaughter in the second degree, but there is nothing in the opinion which indicates that manslaughter in the second degree, as a public offense, depends exclusively on culpable negligence.” State v. Painter, 70 S.D. 277, 17 N.W.2d 12, 13.

Section. 12-2703, NDRC 1943 provides that- homicide is excusable “When committed by accident and misfortune in lawfully correcting a child or in doing any other lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent; * * The trial court instructed the jury in the terms of Sections 12-2719 and 12-2703. These instructions were prop-erl - The' acts of the defendant in operating the bus caused the death of Edward Geier. I believe that under the evidence in this case the defendant’s conduct may have been neither wanton nor willful. On the other hand, the evidence warrants, the jury in finding that his conduct was neither justifiable nor excusable and the defendant was therefore guilty of manslaughter in the second degree.

BURKE, Chief Justice

(concurring).

I concur in the result in this case although I . do not believe the evidence is sufficient to sustain a -finding of culpable negligence as it is defined in the opinion of the majority. After a careful consideration of the applicable statutes, I have come, to the conclusion that proof of ordinary negligence which causes the death of a human being is sufficient to sustain a conviction of manslaughter in the second degree.

•Under Section 12-2715, NDRC 1943, “Homicide, not excusable or justifiable, -but perpetrated in a manner not constituting murder, is manslaughter.” Under Section 12-2719, NDRC 1943, homicide which is neither “murder nor ‘ manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.” Under Section 12-2703, NDRC 1943, a homicide is excusable, “When committed by accident and misfortune * * * by lawful means, with usual and' ordinary caution * * * It follows that a homicide committed accidently but when acting without ordinary caution is not excusable homicide." Lack of ordinary caution is ordinary negligence. I am compelled to the conclusion therefore that a homicide caused by ordinary negligence, , since it is not excusable under the statute, is manslaughter in the'second degree.


author: SATHRE, Judge.

text:
    R. O. BURBIDGE and Mabelle J. Burbidge, Plaintiffs and Appellants, v. Hilda E. NOE, Executrix of the Last Will and Testament of Clyde E. Noe, Deceased, Defendant and Respondent.
    No. 7435.
    Supreme Court of North Dakota.
    March 14, 1955.
    Q. R. Schulte, Stanley, for plaintiffs and appellants.
    Bjella & Jestrab, Williston, for defendant and respondent.
   SATHRE, Judge.

The plaintiffs brought this action to cancel an oil and gas lease covering the following described lands situated in Mountrail Cohnty, North Dakota.

The Southeast Quarter (SE*4), South half of the Northwest Quarter (Si/£ NW%.), South half of the Northeast Quarter (S^NE^t), East half of the Southwest Quarter (Ei^SWj4), all in Section One (1) Township One Hundred Fifty-seven (157) West of the Fifth Principal Meridian.

The lease in controversy is what is called an “unless” lease. It provides:

“If no well be commenced on said land on or before August 15th, 1951, this lease shall be terminated as to both parties unless the lessee on or before that date shall pay or tender to the lessor or to the lessor’s credit in the Scandia American Bank at Stanley, North Dakota or its successors, which shall continue as a depository regardless of changes in the ownership of said land, the sum of $52.00 which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date.”

The plaintiffs’ complaint alleges a failure on the part of the defendant to comply with the terms of the lease and particularly in failing to pay the delay rentals as required by the terms of the lease. The answer denies that there was a failure to comply with the terms of the lease and alleges that the defendant had in all respects complied substantially with the terms of the lease. The answer further alleged that the plaintiffs never at any time furnished to Clyde E. Noe or to Hilda E. -Noe, as administra-trix of the estate of Clyde E. Noe, deceased, the original of the deed by which the plaim tiffs claim ownership of the land involved, or a certified copy thereof, and that by reason thereof the defendant was fully justified in making payment to Villa Wooster and Ira Wooster and depositing to their credit in the Scandia American Bank at Stanley, North Dakota the rental due upon said lease, and that the lease was in good standing and not in default. The case was tried before the Hon. Eugene E. Burdick, Judge of the District Court, Fifth Judicial District, Mountrail County, North Dakota.

The district court held that payment of the delay rental accruing under the terms of the lease insofar as it covered the acreage described in the complaint was properly and timely made by the defendant on or before the due date stated therein. Judgment was entered accordingly and the plaintiffs appealed from the judgment and demanded a trial de novo in this court.

The facts in the case were agreed to by stipulation in writing and briefly stated are as follows:

On August 15, 1950 Villa M. Wooster and Ira Wooster, husband and wife, were the owners of the real property described in the complaint. On said August 15, 1950 they executed and delivered to M. B. Rud-man of Dallas Texas an oil and gas lease covering the said described real property. This lease is exhibit “A” in the record and was recorded in the office of the register of deeds of Mountrail County, March 28, 1951. Thereafter and on February 19, 1951 the said Villa M. Wooster and Ira Wooster, transferred the said described real property by warranty deed to the plaintiffs in this action, R. O. Burbidge and Mabelle J. Bur-bidge, husband and wife, which deed was recorded in the office of the register of deeds of Mountrail County on July 11, 1951.

On December 12, 1950 the lessee M. B. Rudman by an instrument in writing assigned his said lease to Clyde E. Noe, of Williston, North Dakota, which assignment was recorded in the office of the register of deeds of Mountrail County on March 28, 1951. On August 11, 1951 Clyde E. Noe the assignee of the lease from Rudman deposited in the Scandia American Bank of Stanley, North Dakota the sum of $52 to be placed to the credit of Villa Wooster and Ira Wooster, for rentals payable August 15, 1951 to August 15, 1952. The bank issued its receipt for this payment to Clyde E. Noe, but Villa M. Wooster and Ira Wooster refused to accept this pajment. The bank notified Clyde E. Noe of such refusal and on or about August 29, 1951 Clyde E. Noe made a new rental check to the bank to the credit of the plaintiffs here-’ in. On April 1, 1952 the plaintiff R. O. Burbidge sent to Clyde E. Noe a photostatic copy of the deed from the Woosters to him and his wife Mabelle Burbidge.

On August 4, 1952 Clyde E. Noe died at Williston, North Dakota. Funeral services were held August 7, 1952 at Williston, North Dakota, and thereafter the body was taken to Des Moines, Iowa for burial. The defendant Hilda E. Noe, surviving widow of Clyde E. Noe, returned to Williston August 13, 1952 and with her son and her daughter checked through the papers of her deceased husband. Among these papers were a number of mineral deeds and over 100 oil and gas leases. While checking these papers they discovered the oil and gas lease involved in this action and noticed that the rentals were due on the 15th day of August 1952, and on August 13, 1952, Hilda E. Noe the defendant in this action mailed the rental to the depository bank by her personal check and thereafter received rental remittance and bankers receipt from the depository bank. The check was made payable to Scandia American Bank, and accompanying remittance sheet states that the proceeds of the check were to pay rental from August 15, 1952 to August 15, 1953 according to the terms of the oil and gas lease made by Villa M. Wooster and Ira Wooster to M. B. Rudman on the land described in the lease. The bank, however neglected to place the proceeds of said check to the credit of the plaintiffs.

Oh August 22, 1952 the plaintiff R. O. Burbidge advised “Clyde E. Noe Estate” by letter that he had purchased the real property involved in this action.

Thereafter on August 28, 1952 Letters Testamentary of the Estate of Clyde E. Noe were issued to defendant Hilda E. Noe, his surviving widow, and she qualified as provided by law. On September 19, 1952 the plaintiff R. O. Burbidge wrote a letter to Mrs. Clyde Noe, administratrix of Clyde Noe Estate, Williston, North Dakota “re rental payment” on the lease covering the land, involved in this action. On October 6, 1952 plaintiff Burbidge -by letter advised Scandia American Bank that the oil and gas lease involved had lapsed and directed said bank not to accept such payment of rentals for the account of the said R. O. Burbidge.

On or about the 9th of October 1952 in response to a personal inquiry by Hilda E. Noe administratrix of the estate of Clyde E. Noe, decéased, the depository Scandia American Bank of Stanley, North Dakota deposited the delay rental for which Mrs. Noe had mailed her check August 13, 1952 to the credit of the plaintiffs in this action. At the same time the depository bank executed a deposit credit to the account of R. Ó. Burbidge and a debit to the account of Ira Wooster.

At no time did the plaintiff Burbidge furnish to Clyde E. Noe or to the defendant Hilda E. Noe individually, or to her as administratrix of the estate of Clyde E. Noe, deceased, the original or certified copy of the. deed from the lessors, Villa M. Wooster and Ira Wooster, to the plaintiffs in' this action.

On October 6, 1952 the plaintiff R. O. Burbidge, advised Scandia American Bank that the oil and gas lease involyed had lapsed and directed said bank' not to accept payment of rentals for his account.

On October 8, 1952 the plaintiff.R. O. Burbidge sent a -written notification . to “Clyde E. Noe Estate”, Williston, North Dakota, which .stated that : that- .certain lease involved in this action which had been assigned by M. B. Rudman to Clyde E. Noe was cancelled and had been terminated by breach of the terms thereof and that the same was forfeited; that he thereby elected to declare the said lease forfeited and void and demanded that the holder thereof execute or have executed a proper surrender of said lease and have such surrender placed of record in the office of the register of deeds of Mountrail County, within 20 days of the date of the notice.

Thereafter and on or about, the 5th day of November 1952 the plaintiffs brought this action for cancellation of said lease.

It is the contention of the plaintiffs that the defendant failed to make payment of the delay rental due August 15, 1952 and that the defendant was in default under the terms of the lease. The defendant however contends that she had complied substantially with the terms of the lease when on August 13, 1952 she issued her check for the amount of the rental payable to the depository bank designated in the lease. With reference to the manner of payment of the delay rentals the lease provides as follows:

“If no well be commenced on said land on or before August 15, 1951, this lease shall- terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in The Scandia American Bank at Stanley, North Dakota or its successors which shall continue as the depository regardless of changes in the ownership of said land, the sum of Fifty-two and no/100 Dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods or the same number of months successively. All such payments or tenders of rental may be made by check or draft of lessee or any assignee thereof, mailed or delivered on or before the rental paying date either direct to lessor or assigns or to said depository bank.”

The stipulated facts show that on August 13, 1952 Hilda E. Noe surviving widow of said deceased, discovered the oil and gas lease involved in this action and on that date issued her check in payment of the rental due August 15, 1952. The check was made payable to the depository bank agreed upon by the lessor and lessee. The remittance sheet, exhibit “F” stated that the proceeds of the check were to pay rental from August 15, 1952 to August 15, 1953 according to the terms of the oil and gas lease made by Villa M. Wooster and Ira Wooster, to M. B. Rudman covering the land described therein.

From the language quoted it clearly appears that when the plaintiffs purchased the land covered by the lease under consideration they were bound by all of the terms of the lease in the same manner and to the same extent as the original lessor. Under its terms the “lessee or any assigns thereof” had the privilege of making remittance direct to the lessor or his assigns or to said depository bank. There is no dispute as to the fact that on August 13, 1952 Mrs. Noe issued her check exhibit “G” in the right amount, plus 50 cents to cover the bank charges, payable to Scandia American Bank in payment of the delay rental due August 15, 1952. On the check is a notation “Wooster .Lease”, indicating the purpose for which it was issued. It was received by the bank on the following day August 14, 1952, one day before the due date of the delay rental payment. The lease rental remittance and banker’s receipt exhibit “F” issued by the depository bank, shows that the check was received by the depository bank on August 14, 1952. When Hilda E. Noe discovered the lease in question among the papers of her deceased husband she used' due diligence and immediately mailed her check in payment of delay rental to the depository bank as she had the right to do under the terms of the lease. It was received by the bank on the 14th day of August the day before the rental was due. She had therefore in good faith complied with the terms of the lease with respect to payment of the delay rental. The fact that the plaintiffs were not credited with the proceeds of the check issued by Hilda E. Noe on August 13, 1952 until October 9, 1952 was due to the omissions of both parties.

In Carter Oil Company v. Samuels, 181 Okl. 218, 73 P.2d 453, 455, it was said:

“Where it is stipulated in the lease that the lessee may make payment by deposit in a specified bank to the credit of the lessor, the acceptance of such payment is implied by this agreement when the deposit it made pursuant to the stipulation. * .* * Nor can the lessor avoid the effect of payment to the bank pursuant to the terms of the lease by refusing to withdraw the sum from the bank. When so paid, the fund becomes the property of the lessor. Kachelmacher v. Laird, 1915, 92 Ohio St. 324, 110 N.E. 933, Ann.Cas.1917E, 1117.”

We are satisfied that the stipulated facts and the record show that' the defendant' complied with the terms of the lease by making timely payment of the delay rental to the depository bank designated in the lease.

The judgment of the district court is affirmed.

BURKE, C. J., and JOHNSON, GRIM-SON and MORRIS, JTJ., concur.


author: MORRIS, Judge.

text:
    Harold HAALAND, J. W. Mueller, Otis K. Schlak, Herbert Adam, Henry Severson, Marion Swanson, Gretha Hooke, Richard Pederson, Marlon Rearick, B. K. Holum, Emil Sitz, and John Dethloff and Kyle Miller, Plaintiffs and Respondents, v. VERENDRYE ELECTRIC COOPERATIVE, a corporation, “Rusty” Melford Hanson, as its Manager, Lawrence Erickson, Glenn Pace, Leon Birdsall, Nels Solheim, Axel Kongslie, Frank Bruner, Leonard Smestad, Leslie M. Pederson and Myron Shook, acting Directors of said Corporation, Defendants and Appellants.
    No. 7483.
    Supreme Court of North Dakota.
    March 14, 1955.
    April 18, 1955.

      Ilvedson, Pringle & Herigstad, Minot, and Heringer, Nelson & McClintock, Rugby, for defendants and appellants.
    Waldron & Kenner, Minot, for plaintiffs and respondents.
   MORRIS, Judge.

This is an appeal from a judgment rendered in a proceeding brought under the provisions of Section 10-0518, NDRC 1943 challenging the declared election of nine directors of the Verendrye Electric Cooperative, a corporation, at the annual meeting of the corporation on June 3, 1954. The trial court held the election to be null and void ab initio and ordered the declared elected directors to be ousted from office. He also determined that certain other persons had been elected directors at the annual meeting.

Those persons declared to be chosen as directors by the election officials at the annual meeting and who are defendants in this proceeding are: Leon Birdsall, Lawrence Erickson, Glenn Pace, Neis- Solheim, Axel Kongslie, Frank Bruner, Leonard Smestad, Leslie M. Pederson, and Myron Shook. They will hereafter be referred to as the Birdsall group.

Those persons declared to' be elected by the district court are: Harold Haaland, Edward Hammer, Emil Sitz, Otis Schlak, Theodore Polsfut, W. R. Varberg, J. W. Mueller, Kyle Miller, and Herbert Adam. They will hereafter be referred to as the Haaland group.

At the annual meeting there were 1003 members present and registered. Of these a substantial majority cast their votes in behalf of the Birdsall group. The Haaland group had obtained and offered to vote 370 proxies. If these proxies had been recognized and the votes represented thereby had been counted for the Haaland group, that group of directors would have been elected. The election officials refused to permit the proxies to-be voted and declared the Birdsall group to be elected. Thus the first question for determination is whether the holders of proxies were entitled to vote them at the annual meeting.

The “Verendrye Electric Cooperative, Inc.” was incorporated January 26, 1939, pursuant to the provisions of Chapter 115, SLND 1937, designated as the “Electric Cooperative Corporation Act.” It provided : - ,

“This Act is complete in itself and shall be controlling. The provisions of any other law of this State, except as provided in this Act, shall not apply to a corporation organized under this Act.” § 36.

It, together with subsequent amendments, is now Chapter 10-13, NDRC 1943. The last section of that chapter, 10-1340, states that:

“No provision of this title not contained in this chapter shall apply to corporations organized under this chapter except as provided herein.”

It is the plainly declared intention of the legislature. that this law is exclusive and that the general provisions of the corporation law of this state do not apply to electric cooperative corporations unless it is so provided in the electric cooperative corporation act and amendments thereto.

The plaintiffs argue that regardless of its original provisions the electric cooperative corporation act, Chapter 10-13, NDRC 1943, is no longer exclusive because Chapter 10-15, NDRC 1943 is now applicable to corporations organized under the electric cooperative corporation act and that under Chapter 10-15, which is a general law providing for the organization and operation of cooperative associations or corporations, the power to adopt or amend by-laws is vested in the stockholders acting at an annual or special meeting by the -provisions of Section 10-1508, NDRC 1943. The argument is based upon the fact that Section 10-1502, NDRC 1943, setting forth -the purposes for which cooperative associations -may be organized under the general law, was amended by Chapter 152, SLND 1945 to include among the purposes for which such an association might be formed “electric transmission and distribution.” Thus it is contended that by the amendment, the power to adopt or amend the by-laws of the Verendrye Electric Cooperative, Inc. was vested in the members to the exclusion of the board of directors. This contention is without merit. The amendment contained in Chapter 152, SLND 1945 in no way amended the electric cooperative corporation act contained in Chapter 10-13, NDRC 1943, but only permitted cooperative associations to be formed under Chapter 10-15, for the purpose of electric transmission and distribution. The amendment did not purport to alter the provisions of Chapter 10-13 which, as we have pointed out, is made exclusive by its own terms.

Now we examine Chapter. 10-13 to ascertain what it provides with reference to voting by the members of the corporation. Section 10-1317 states:

“Each member present shall be entitled to only one vote on each matter . submitted to a vote at a meeting of the members of the corporation, but voting by proxy or by mail may be provided for in the by-laws.”

This is the identical language used in Section 15, Chapter 115, SLND 1937. Section 10-5-1313, provides:

“The power to make, alter, amend, or repeal the 'by-laws of the corporation shall be vested in the board of directors unless, by the articles of incorporation, such power is reserved to the members of the corporation.”

The articles of- incorporation of the Verendrye Electric Cooperative do not reserve to the members the power to make, alter, amend, or repeal by-laws of the corporation. This power is therefore vested in the board of directors under the statute. Despite these provisions the respondents herein contend that proxy voting is provided by statute and that the board of directors may not adopt a by-law providing otherwise. They rely on Section 10-1316, NDR C 1943 which says:

“Unless otherwise provided in the articles of incorporation or in the bylaws, a majority of the members present in person or represented by proxy shall constitute a quorum for the transaction of business at a meeting of members, but if voting by mail is provided for in the by-laws, members so voting shall be counted as if present.”

The contention of the respondents is based upon a misconstruction of this statute. It must be read in conjunction with Section 10-1317 which permits voting by proxy when provided for in the by-laws. When the, by-laws do not so provide, voting by proxy is not permitted.

Section 10-1316 deals exclusively with the constitution of a quorum. The quorum under that section depends upon the manner of voting. Members present in person shall be counted. Persons represented by proxy shall be coúnted in determining the quorum if proxy voting is permitted under the by-laws. ■ ■ Likewise, if .voting by mail has been provided for by the -bylaws, those members voting by mail shall be counted as if present. Section 10-1316 does not provide a statutory authorization for voting by proxy or by mail. Such 'authorization must- ‘ be provided' for in ' the by-laws pursuant'to-Section 10 — 1317: and, if the by-laws so provide,' proxy representation or votes by mail shall be counted in determining the quorum. ■ •

It may also be noted that the general residuary powers of the, corporation are vested in the board of directors by this statutory provision:

“The board of directors shall exer- , cise all of the powers of the corporation except such as are conferred up-, on the members-by this chapter or.by the articles of incorporation or bylaws of the corporation.” Section 10-1319, NDRC 1943.

The respondents also contend that proxy voting is authorized by the articles of incorporation since Article VIII, Section 2, provides:

“In case the total number of members shall exceed one thousand (1,000) then at least one hundred fifty (150) of the members present in person or represented by proxy shall constitute a quorum for the transaction of business at all meetings of the members.”

The same construction- applies to this .provision of the articles of incorporation that applies to the statutes above discussed. Members cannot be represented by proxy unless proxy voting is authorized ■ by the by-laws. That provision does not authorize proxy' voting, but- in effect provides that where proxy voting has ■ been authorized by the-by-laws, members present by proxy as well as those present in person shall be counted in determining -the quorum.

We now turn-to the; by-laws to determine whether théy authorized proxy voting at the annual meeting on June 3, 1954. Article- -II,- Section1 6 of -the original bylaws authorized proxy voting at the meetings of the members of the corporation with certain limitations and restrictions that are of no- concern to us here.

Article XIV of the by-laws provides:

“These by-laws may be altered, amended or repealed by the affirmative vote of not less than two-thirds (⅜) of the board of directors at any regular or special meeting, provided the notice of such meeting shall have contained a copy of the proposed alteration, amendment or repeal.”

Article IV, Section 2, authorizes the calling of special meetings of the board of directors by the president or any three directors. Section 3 requires that notice of the time, place, and purpose of any special meeting of the board of directors shall be given at least five days previous thereto by written notice delivered personally or by mail. It also provides that the attendance of a director shall constitute a waiver of notice of the meeting unless he attends for the express purpose of objecting to the transaction of business.

On April 9, 1954, the president, Leon Birdsall, called a special meeting of the board of directors, the notice whereof recited that the special meeting would be held Monday, April 19, 1954, at 10:00 a. m. in the offices of the Verendrye Electric Cooperative, Inc. at Velva and further recited that:

“.Notice is further given that an amendment to the By-laws will be proposed and voted upon at this meeting, which amendment is as follows :
“ ‘Article II, Section 6. At all meetings of members, proxies shall not be permitted. The presence of each member is desired at all meetings of the membership and proxy voting has the tendency to discourage actual attendance at membership meetings.’
“ ‘That the above amendment will amend Article II, Section 6, or any provision in the By-laws, contrary to the above.’ ”

The record shows that each member of the board of directors received this notice.

The minutes of the special meeting of April 19, 1954, show that all directors were present and that:

“It was moved by Shook and seconded by Smestad that Section 6 of Article II of the by-laws be amended to read as follows:
“Section 6 (Article II). At all meetings of members, proxies shall not be permitted. The presence of each member is desired at all meetings of the membership and proxy voting has the tendency to discourage actual attendance at membership meetings.
“And that any and all provisions in the by-laws contrary to this amendment are repealed. Unanimously carried.”

It is clear that the above amendment was properly noticed, proposed, voted upon, and carried at a special meeting of the board of directors in accordance with the provisions of the by-laws and at once became in full force and effect.

The plaintiffs further contend that the election was “unfairly” conducted for these reasons: 1. The membership was not properly advised of the change in bylaws abolishing proxy voting. 2. The official ballots used at the election were unfairly prepared. 3. The order of business prescribed by Article II, Section 7, was not followed in the conduct of the annual meeting. 4. The balloting was unfairly conducted by the officials in charge of the election.

Notice of the annual meeting to be held on June 3 was mailed to each member by the secretary of the Verendrye Electric Cooperative, Inc. on May 21, 1954. It advised the membership of the time and place of the meeting and the names of candidates for the office of director submitted by the nominating committee that had previously been appointed and also the names of those candidates submitted by petition. Following the lists of candidates, appeared this statement:

"Please note that proxy voting has been eliminated by a change in the By-laws; your attendance in person is desired.”

On May 17, 1954, a printed publication of the corporation known as a “newsletter” was mailed to each member. On the first page was a statement of the time and place of holding the annual meeting. On the third page appeared this headline: ■“Amendment to the By-laws Regarding Proxy Voting.” Beneath the headline it was stated: “At a meeting of the board of directors held on April 19, 1954 a resolution was made and passed in regards to proxy voting as follows: * * *.” Then ■appears the amendment to the by-laws in full as we have quoted it above. Thus it appears that the entire membership was notified by the official notice that proxy voting would not be permitted at the annual election and was also advised by the newsletter of the text of the amendment by which proxy voting was abolished.

The committee in charge of the election prepared an official ballot. The plaintiffs ■claim that this ballot was unfair to them because the candidates of the Haaland group were mostly listed farther down on the ballot than the Birdsall group. Candidates listed on the top half were grouped under the heading “Names submitted by the Nominating Committee.” There were eleven names submitted by the nominating committee, eight being of the Birdsall group, one of the Haaland group, and two that apparently had no factional affiliation. Blank lines were provided for writing in the names of candidates not listed. On the bottom half of the ballot were “Names submitted by Petition.” There nine candidates were listed, one being from the Bird-sall group and the other eight from the Haaland group. After each name' and blank line was a .square in which the voter could designate his choice. . The campaigning between the two groups was spirited. Each distributed lists or guide cards containing the names of the directors supported by the respective factions.

It is obvious from a study of the results of the election that the position on the ballot had little to do with the number of votes the candidates received. The votes received by the Birdsall group ranged from 518 to 586. The high vote was received by the Birdsall group candidate whose name was listed among those submitted by petition and was the fourth name from the bottom of the page. The votes received by the Haaland group ranged from 262 to 390. The name of the low candidate in this group was among those submitted by the nominating committee and its position was third from the top of the page. The plaintiffs have wholly failed to demonstrate that they suffered any serious disadvantage because of the arrangement of names on the ballot.

The plaintiffs complain that the president, Mr. Birdsall, departed from the order of business prescribed by the by-laws by permitting speeches to be made that were “slanted” in favor of the Birdsall group prior to the balloting. Some speeches were made but there is nothing in the evidence to indicate that they were partisan or controversial. The only implication that they were “slanted” comes from the questions of plaintiffs’ counsel. The. record does not show that these incidents interfered in any way with a fail» election.

Plaintiffs also contend that the length of time consumed in balloting in some way militated against a fair expression on the part of the voting members. Balloting began about 9:30 a. m. and lasted until about 4:30 p. m. The committee in charge required the prospective voters to register and checked their membership before permitting them to vote. There is no evidence of any specific person who did not have an opportunity to vote, although one witness states that some members went home without voting. Three tables were set up for registration and prospective voters were registered three at a time. Sometimes there was a lull in the registration. If any implication is to be drawn from the length of time that the polls were open, it would seem to be in favor of a fair election and a free expression of the will of the members in attendance.

The lowest candidate of the Bird-sall faction received 128 more votes than the highest candidate of the Haaland group. It does not appear that any incident or incidents of which the plaintiffs complain militated' against them to the extent of causing them to lose the election. Corporate elections- will not he set aside for trivial irregularities which it appears have not affected thé- result. 19 C.J.S., Corporations, § 720a, page 41.

■ The trial court set aside the election upon, the ground that the holders of proxies should have been permitted to vote.'. He was in error in so holding because ■ the by-laws had been amended to abolish proxy voting and the amendment was in effect at the time of the annual meeting on June 3, 1954. The annual meeting was regularly noticed," properly convened, and legally conducted. The result was correctly canvassed and declared by the election committee and should have been sustained and confirmed by the district court. The judgment appealed from is reversed and the proceedings remanded for entry of judgment conformable to this opinion.

BURKE, C. J., and SATHRE, JOHNSON and GRIMSON, JJ., concur.