author: SATHRE, Judge.

text:
    William MURPHY, Plaintiff and Respondent, v. FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION commonly known as North Dakota Farmers Union, a corporation, Defendant and Appellant.
    No. 7503.
    Supreme Court of North Dakota.
    Oct. 27, 1955.

      Quentin Burdick, Fargo, for defendant and appellant.
    Hjellum, Weiss & Nerison, Jamestown, for plaintiff and respondent.
   SATHRE, Judge.

This is an action for libel. The defendant made a motion to strike part of the complaint. Upon denial of the motion to strike, defendant interposed a demurrer to •each of the four causes of action alleged in the complaint. The demurrers were overruled and defendant was given thirty days within which to answer. Defendant answered by general denial, arid further alleged that the complaint did not state facts sufficient to state a causé of action; that the alleged defamatory words set forth in the complaint are true, and that the defamatory words complained of constitute fair, comment of a public official. The case was .tried to the court and a jury. The jury .returned a verdict for the plaintiff. Judgment was entered .accordingly and the defendant appealed from the judgment and the whole thereof.

The complaint, the sufficiency of which is attacked is as follows:

Plaintiff for his cause of action against the defendant alleges:

“1.
“That the Defendant is now and has been at all times mentioned in this Complaint a domestic corporation.
“2.
“That the North Dakota Union Farmer, a newspaper published semimonthly in the City of Jamestown, North Dakota, with additional entry at Frederic, Wisconsin, is and at all times mentioned in this Complaint has been the official organ of the Defendant; 'th.at said newspaper enjoys a wide-circulation among the citizenry of North Dakota, principally among farmers.
“3.
“That on June 16, 1952, the Defendant,' through its official organ, the North Dakota Union Farmer, did knowingly, intentionally, wilfully and maliciously print, publish and cause to be circulated among its subscribers, purchasers and others in a regular issue of said paper of that date, the following-statements, to-wit :
“(a) In a heavily outlined rectangle on page one:
“ ‘Inside Stuff
“ ‘What’s the “inside” of the dairy'industry of North Dakota. This being Dairy Month, you’ll probably be interested in reading' about it on Page 6, this issue.’
“(b) On page six, under a headline, ‘June “Dairy Month” Points Up Problems Of ND’s Dairy Industry’:
“ ‘Victims of “Centralizers”
“‘North Dakota is known as a ‘but-terfát’ state. Only a small portion of the total milk production in the state is sold as “whole milk”. This is true for a number of reasons: sparse herds; seasonal milk production, long distances, bad winters which hamper delivery.
“ 'A great percentage of the milk is separated on the farms. At'.infrequent intervals the cream is delivered at “centralizer” way stations — it stands in unsanitary places — is handled .by people who handle the cream as “an accommodation” — and often the cream sits at a railroad station in the hot sun or freezes in sold weather. The total result is that the state has a reputation for “poor" butter. •
“ ‘By the very nature of their operations, “centralizers” are not interested in ‘quality’ butter. Quality' butter can be made only from fresh sweet cream —and because of the time-lag set-up of the centralizers — from farm, to cream station to processing plant — sweet cream is an impossibility and poor butter is the result.’
“(In bold face type)
“ ‘But the big centralizers like Fair-mont, Armour, Swift, Cudahy, and Mandan (in North Dakota) control the pricing of butter and since almost all of their butter is of poor quality, they have a stake in poor quality production and they favor and maintain a pricing system of butter which protects poor quality.'
“‘But this pricing system does not work to the advantage of the North Dakota dairy farmer. He takes a low score on his butterfat but the centralizers take a big price- fqr the finished “poor” butter. Proof of this can be found on the market places. There is only a cent or fraction difference between high score butter and low score butter. But the farmers takes a very low price for low-score cream.
“ ‘There is little incentive for farmers to produce better quality as there is in the case of premium wheat, premium durum, barley, etc.
“ ‘Dairy Organization
“ ‘The big centralizers also dominate the American Butter Institute and the American Dairy Association. Ostensibly these organizations are established to encourage the daffy industry —make it more . profitable for the farmers — increase use of dairy products,’ etc., .etc. ■ . , .
“(In bold'face type)
“ ‘But the big' centralizers lfevy ’ a heavy check-off from the farmer. for eqch pound .of milk or butterfat that is -marketed and then, in effect, use the funds to. ‘sell’ consumers second grade dairy products.
“(In bold face type)
. ‘Át the samé time the big centralizers like Swift, Armour, Cudahy and others are using the farmers’ money to help pay advertising costs, these same big companies are spending million's of dollars to pronjote the increased use of. butter substitutes — principally oleomargarine.
“ ‘Dairy Commissioner
“ ‘Furthermore, in North Dakota you have a state official, the State Dairy Commissioner, Bill Murphy, spending most of his time acting as-the errand boy for the ADA — personally. supervising the cream check deductions every spring and enjoying ADA expense accounts that. nearly equal his state pay. This is wrong. Particularly when ADA is completely dominated by the big centralizers.
“ ‘The Dairy Commissioner has,, as one of his principal duties, the job of enforcement. It is a strange sight then to see an enforcement officer soliciting funds — it’s like having a police chief soliciting funds for advertising in a police handbook from the tavern operators. And farmers are giv,en no general accounting of how the funds are used.
“(In bold face type)
“ ‘Anyone reading the Dairy Record '(the industry’s magazine) could find out that the dairy enforcement division .in- Minnesota reports a number of arrests'each week. No such arrests have ever been reported in this state. Apparently the dairy commissioner is more concerned with collecting funds for the centralizers’ ADA than he is with performing his job as enforcement officer and supervisor of the industry in the farmers’ behalf.
“ ‘A few year ago, a number of bills were introduced in the state legislature that would correct some of the problems of milk distribution in the state. Something that the Dairy Commissioner and the State Department of Agriculture should have supported vigorously. Instead, they led the fight against the bills.
“ ‘Dairying Has a Place
“ ‘With all the thousands upon thousands of dollars which farmers of this state have kicked into the ADA and with the thousands upon thousands which taxpayers have paid to maintain the Dairy commissioners department, no. real effort has been made to promote' the dairy industry in this state.
“ ‘The only ‘ good work — and it has been considerable considering the funds allotted to it — has -been accomplished by the small group of earnest scientists •and trained men at the NDAC’.
“4;
“That the statements which refer to Bill Murphy and to the Dairy Commissioner are directed at the Plaintiff William Murphy and were deliberately designed to, and did convey to the readers •of the North Dakota Union Farmer the -fact that the person to whom said ¡statements referred was the Plaintiff, •and said statements are false and defamatory.
“5.
“That at all times the Plaintiff has been a man of ability, integrity, honesty and industry and has at all times since becoming Dairy Commissioner of the State of North Dakota diligently, honestly, conscientiously and industriously pursued the duties of said office to the best of his ability.
“6.
“That the aforesaid statement:
“ ‘Furthermore, in North Dakota you have a state official, the State Dairy Commissioner, Bill Murphy, spending most of his time acting as the errand boy for the ADA — personally supervising the cream check deductions every spring and enjoying ADA expense accounts that nearly equal his state pay.’
was deliberately designed to, and did convey the impression and statement that the Plaintiff was morally dishonest, derelict in his duty, impotent in his work, and said statement was libelous per se.
“7.
“That the aforesaid statement:
“ ‘The Dairy Commissioner has, as one of his principal duties, the job of enforcement. It is a strange sight then to see an enforcement officer soliciting funds, — it’s like having a police chief soliciting funds for advertising in a police handbook from the tavern operators.’
was deliberately designed to, and did convey the impression and statement that the Plaintiff was morally dishonest, derelict in his duty, and guilty of misfeasance in the performance of his work and said statement was libelous per se.
“8.
“That the aforesaid statement:
“ ‘Apparently the Dairy Commissioner is more concerned with collecting funds for,the centralizers’ ADA than he is with performing his job as enforcement officer and supervisor of the industry' in the farmers’ behalf.’
was' deliberately designed to, and did convey the impression and statement that the Plaintiff was morally dishonest, derelict in his duty and guilty of misfeasance and nonfeasance in the ' performance of his work and said statement was libelous per se.
“9.
“That the aforesaid statement:
“ ‘With all the thousands upon thousands upon thousands of dollars which farmers of this state have kicked into the ADA and with the thousands upon thousands which taxpayers have paid to maintain the Dairy Commissioner’s department, no real effort has been made to promote the dairy industry in this state.’
was deliberately designed to, and did convey the impression and statement that the Plaintiff was morally dishonest, derelict in his duty and guilty of nonfeasance in the performance of his work and said statement was libelous per se.
“10.
“That the complained of statements quoted in paragraphs 6, 7, 8 and 9 above and referring to this Plaintiff were false and defamatory; that on May 21st, 1953, this Plaintiff caused to be served upon Defendant a Notice in accordance with section 14-0208 of the North Dakota Revised Code of 1943, wherein said Defendant was notified that Plaintiff was aggrieved by said publication of the quoted statements set forth in paragraphs 6, 7, 8 and 9 above because of their false and defamatory nature; and that if a full and fair, retraction of said erroneous statements were not published in the next issue of the North Dakota Union Farmer in as conspicuous a place and type as the original article, said Plaintiff would bring suit for libel because of said publication; that in spite of the service of said Notice upon Defendant, said Defendant has failed, neglected and refused to make a full and fair retraction of said qtioted statements either in the next issue of the North Dakota Union Farmer or in any subsequent issue of the North Dakota Union Farmer in as conspicuous a place and type as the original article.
“ii;
“That because of the printing, publishing and circulation of the complained of and quoted statements in paragraphs 6, 7, 8 and 9 above this Plaintiff has been exposed to hatred, contempt, ridicule and obloquy and has been shunned and avoided and said quoted statements have had a tendency to injure this Plaintiff in his occupation, all to this Plaintiff’s damage in the sum of $10,000.00.
“Wherefore, Plaintiff prays for judgment against the Defendant for said sum of $10,000.00 as actual damages and for the further surn of $5,000.00 as exemplary damages and for his costs and disbursements herein.”

• Before bringing this action and in accordance with Section 14-0208 NDRC 1943, the plaintiff served upon the defendant a notice and demand for retraction of the alleged libelous article as it appeared in the issue of. the defendant’s paper on June 16, 1952. The notice contained an exact copy of the language as used in the published article and'made a demand that unless a full and complete retraction was made an action , for damages would be brought against the defendant. This notice was served on the defendant on the 21st day of May 1953, and was admitted in evidence as plaintiff’s exhibit No. 4.

After the service of the complaint the defendant served notice of motion upon the plaintiff to strike paragraph three of the complaint upon the ground that it was irrelevant and redundant and that the defendant was aggrieved by the insertion thereof in the complaint. After hearing thereon the motion was denied by the trial court. Defendant then demurred to each of paragraphs 6, 7, 8 and 9 of the complaint on the ground that they did not state facts sufficient to constitute a cause of action. • The demurrers were overruled. The defendant then answered admitting its cor-po.rate existence, denying generally the allegations of the complaint, alleging that it did not state facts sufficient to constitute a cause of action, that the statements in the article complained of were true, and were fair comment of a public official, and denied that the publication of said article was malicious. The answer further alleged that defendant made a correction and retraction of the alleged defamatory matter in said article according to its best knowledge and information.

At the opening of the trial and when the first witness was called and sworn on behalf of the plaintiff the defendant objected to any testimony and the introduction of any evidence upon the grounds and for the reason that the complaint in the action did not state facts sufficient to constitute a cause of action. The objection was overruled.

The plaintiff is the dairy commissioner of the State of North Dakota and had held that position for more than 17 years. The dairy department is a division of the state department of agriculture and labor, and the dairy commissioner is appointed by the commissioner of agriculture and labor and his duties are prescribed by Section 4-1701 NDRC 1943.

“The dairy department is a division of the department of agriculture and labor, and shall promote, improve, and regulate the dairy products of this state and enforce proper rules and regulations pertaining thereto.”

There is no material dispute as to the facts in the case.

The first witness for the plaintiff was Robert F. Dugan. He testified that he was the editor of the North Dakota Union Farmer and that he was editor of said paper on June 16, 1952. He admitted that the article complained of by the plaintiff as alleged in the complaint was published on the 16th day of June 1952. The article was admitted in evidence as plaintiff’s exhibit 2.

The plaintiff testified in substance as follows:

The term ADA as used in the pleadings and in the record refers to an organization known as the American Dairy Association. This organization consists of units from a number of States in the Union. The organization is established to promote the dairy industry, advertise merchandise and the sale of dairy products. The membership of the ADA is composed of dairy farmers who contribute funds of their own to do the particular work of the organization. The board of directors of the State Association is composed of 10 dairy farmers and 10 creamery operators. As Dairy Commissioner he has assisted the American Dairy Association to some extent. He considered that as part of his duties because it is the purpose of this association to promote increased sales and consumption of dairy products.

During the month of June or July the month known as the Dairy Month, the dairy farmers voluntarily contribute per lb. of the cream sold to create a fund for defraying the expenses of the state ADA. This contribution is not required but is voluntary on the part of the dairy farmers. The proceeds of these collections are sent to the Dairy Commissioner who keeps a record of the amounts and creamery, stations from which they are sent. The checks are then forwarded to the treasurer of the' State ADA.

The plaintiff as Dairy Commissioner attends approximately six meetings annually within the state of the State ADA. The traveling expenses to and from -these meetings are paid out of the expense fund collected from the dairy farmers to which reference has been made. The Commissioner also attends approximately six meetings annually of the National ADA and these meetings are held in different cities within the United States. The traveling expenses to and from these meetings are paid by the National ADA.

Under the provisions of the by-laws of the State ADA the Dairy Commissioner is ex-officio member of, the board of directors. He .has a voice at the meetings but does not have a vote. The plaintiff as Dairy Commissioner never made any charges or collected compensation for his personal services to the State ADA or to the National ADA. The only charges that have been made are for actual expenses and cash expended in his office for clerk hire and other help in the matter of keeping the records of the State ADA.

He testified further that the total amount of expenses for clerk-hire and other items incurred for the State ADA as of March 31, for the years 1950, 1951, 1952 and 1953 are as follows:

1952....$1086.95 arid for N tN. ts. VO oi O
1953....$ 686.09 ' " TT CS 'vf On NO c_n

These figures were taken from the annual audit of the ADA for said years. The audits were introduced in evidence as plaintiff’s exhibits 5, 6, 7 and 8. He stated further that he had nothing to do with the solicitation of funds for the State ADA and never did solicit funds for the ADA.

As part of his duties he or members of his staff supervised the creameries of the state as to sanitation, efficiency and proper methods of operation, and since, 1950 he assigned one member of his staff to give his full time to work with the creameries, assisting them in securing more efficient operation, better care of the products of the plants, and better sanitary conditions. His department made several thousand laboratory analyses of milk and cream from biennium to biennium, and that these analyses were made for the purpose of testing and improving the quality of these products.

With reference to enforcement by the dairy department of the laws, rules and regulations covering the dairy industry he stated that several hundred hearings had been had and many prosecutions had been conducted for faulty readings of the Babcock Test, undertesting, giving . the farmer less than he was entitled to and not grading his cream properly.

' Plaintiff further testified that seventy-five percent of the dairy farmers of the state belong to the State ADA.

Several other witnesses testified for the plaintiff as • to plaintiff’s efficiency in the discharge of his duties as Dairy Commissioner. John Eagleson from Buchanan, North Dakota testified that he had been a farmer in the state since 1914 and that he is now a dairy farmer. He was a director of the ADA and had been its president, and a member thereof for 10 years. He stated that he was well acquainted with the Dairy Commissioner; that from his own knowledge as director of the ADA he knew that plaintiff did not solicit or collect funds for the ADA, nor did plaintiff supervise check deductions from dairy farmers for the ADA. He stated also that the plaintiff did not enjoy expense accounts for personal services for the ADA.

A. M. Femrite testified that he was manager of the creamery division of Man-dan Creamery & Produce Co., and had been engaged in the creamery business 25 to 26 years; he was a member of the board of directors of the ADA. He stated that the deductions from the dairy farmers’ cream checks of one cent per pound during the dairy month was done at the creamery where the cream was delivered and that the plaintiff did not supervise the cream check deductions. He testified further that during plaintiff’s administration as Dairy Commissioner the general quality of cream in the state had been raised twenty-five percent. He stated that to his knowledge plaintiff had diligently enforced the dairy laws of the State of North Dakota.

Ray Bryngelson, manager of the Barnes County Coop. Creamery at Valley City stated he had been in the creamery business 23 years and that he had known the. plaintiff for many years. His testimony was to the same effect as the testimony of the witnesses John Eagleson and A. M. Femrite. He stated in substance that the plaintiff as dairy commissioner brought about a general quality improvement in dairy products and that he diligently enforced the dairy laws of the state.

Other witnesses.' for the plaintiff were Ben Haines, a creamery operator from Wishek, North Dakota, Otto. Spies, a creamery operator from Mayville, North Dakota, Vernon Cooper, a dairy farmer from near New Rockford, North Dakota, all of. whose testimony was of like nature as the .testimony of Bryngelson and Fem-rite, and it .is not necessary to rehearse it here, except 'to state that they agreed that the plaintiff did good work as dairy cpm-missioner.

O. A. Amundson testifying for the plaintiff stated that he was manager for. the Jamestown creamery of Bridgeman-Russell Company and was, also treasurer of the State ADA. .He had been in the creamery business since 1915. He stated that Bridge-man-Rüssell had -three creameries in North Dakota and 125 local stations where they purchased cream. With reference to the deductions o'f 1{⅞ per pound for cream purchased during the dairy month he’stated that they were all made, at the local stations and that the plaintiff a's dairy commissioner made no solicitations ’ and collected no funds; that the local stations and creameries forwarded the funds to the dairy’ commissioner who made a record of them and then sent the checks to the ADA treasurer. He- testified at great length as to’’the dairy and creamery industries in North Dakota and stated that the quality of dairy products improved during ‘ the administration of the plaintiff as dairy commissioner and that he was an outstanding public official. • ■

Math Dahl, Commissioner of Agriculture and Labor testified that the plaintiff was his ’ appointee and was an employee of his department whom he approved.’ ‘

Robert ’ F. Dugan, editor of defendant’s paper the Union Farmer, testifying for the defendant stated that after demand by the plaintiff and on June 15, 1953 he published a correction or retraction of the article of Juné 16, 1952.' That the retraction was published on page 6 of the issue of the Union Farmer of June 16, 1953. The correction was admitted in evidence as defendant’s exhibit B, and is as follows:

“Correction
“The June 16, 1952 issue of the North Dakota Union’Farmer Stated:
‘Furthermore, in North Dakota, you have a state official, the -State Dairy Commissioner, Bill. Murphy, spending most of his time acting as the errand boy for the ADA personally supervising the cream , check deductions every spring arid enjoying ADA expense accounts that nearly equal his state pay * * * ’ Since the statement was printed, Mr. Murphy advised the North Dakota Union.Farmer that he does, not spend most of his time on ADA business, but that he devotes his evenings, nights .and holidays to ADA business; accordingly, the statement is hereby corrected and retracted. -
’ “Since the statement was printed, Mr. Murphy advised the North Dakota Union Farmer, that he does not enjoy ADA expense accounts that nearly equal his state pay; accordingly, the statement is hereby corrected and retracted.”

Defendant’s exhibits D and C were admitted in evidence. Defendant’s exhibit D is ⅛ letter from Dugan the editor of the North Dakota Union Farmer'to the plaintiff dated’May 4, 1953. Exhibit C is plaintiff’s reply to exhibit D. These exhibits will be referred to later in this opinion.

At the close of all of the testimony when both- parties had rested the defendant made a motion for a directed verdict ’ upon the grounds and for the reason that the plaintiff had failed to sustain the allegations of .the complaint. The motion was denied whereupon the defendants made a motion for a dismissal of the action upon the same grounds which motion was also denied. The case was submitted to the jury and the jury returned a verdict awarding damages to 'the plaintiff. Thereafter the defendant made a motion for judgment notwithstanding the verdict' or' in the alternative for a new trial upon -the ground of errors of law occurring at the trial and the insufficiency of the evidence. The motion was denied and the defendant appealed. • The defendant assigned'numerous errors which were argued in'its brief under the following heads:

“1. error.in refusing to strike pleadings and admission of redundant matters.
“2. error in overruling demurrers.
“3. insufficiency of the evidence.
“4. errors in reception of evidence.
“5. errors in instructing the jury.”

We shall consider these specifications in the order stated.

Before interposing answer the defendant made a motion to strike paragraph 3 of the plaintiff’s complaint. The motion was based on the contention that said paragraph 3 was repetitious, redundant and prejudicial to the defendant. The first part of the publication that the defendant‘sought •to have stricken appeared on the first page of the issue in which the article was published. It reads as follows:

“ ‘Inside Stuff’ What’s the inside of the dairy industry of North Dakota, this being dairy month you will probably be interested in reading about it on page 6 of this issue.”

On page 6 of the issue appears that portion of the , article quoted in paragraph 3 of the plaintiff’s complaint which the defendant moved to strike. This portion of the article is an unfavorable report of the condition of the,dairy industry in the State of North Dakota. . It refers to the big centralizers like Swift, Armour, Cudahy and others using millions of dollars of the farmers’ money to advertise increased use of butter substitutes to the detriment of the farmers. This part of the publication is in the nature of an introduction to and lays the foundation for the charges made in the remainder of the article and is an integral.part thereof.

“In determining whether or not the newspaper publication is libelous, the words used in the article must be construed as a whole. All the words contained in the article should be given their ordinary meaning as read and construed by people of ordinary intelligence, and the publisher’s intent and the effect of the publication must be gathered from the words .and the cir-t cumstances under which they were uttered.” * * * 53 C.J.S., Libel, and Slander, § 121, p. 198.
“ ‘In determining the actionable quality of words claimed to be libelous, the entire writing, including the title or headlines, must be considered, 18 Am. & Eng.Ency.L. 985; 25 Cyc. 357. And particular words or phrases must be construed in connection with remainder of the article of which they form a part.’ McCue v. Equity Co-Op. Pub. Co., 39 N.D. 190, 167 N.W. 225, 229.” Ellsworth v. Martindale-Hubbel Law Directory, 69 N.D. 610, 289 N. W. 101, 105.

Wé conclude therefore’that it was hot error on the párt óf the trial cohrt to refuse to grant thé defendant’s motion to strike the portion of the article complained of by the defendant.

The defendánt' demurred , separately to each of paragraphs 6, 7, 8 and 9>of plaintiff’s complaint upon the ground that they did not state facts sufficient to constitute a cause of action against, the defendant. That ■ portion of • the alleged defamatory publication contained in paragraph 6 states that the dairy commissioner, the plaintiff, is .“spending most of his time acting as the errand boy for the ADA, — personally supervising the cream check deductions' every spring and enjoying ADA expense accounts that nearly equals his pay.”

Clearly, the language quoted charges the plaintiff with failure to perform the duties of his office and that he spends most of his time in other activities' ’ not connected with his office for which he collected compensation. nearly equal to his salary as dairy commissioner.

¿•Paragraphs 7 and 8 of the complaint may be considered together. The portion of the article quoted in paragraph 7 states that the dairy commissioner has as one of his principal duties, the job of enforcement and then continues “it is a strange sight then to see an enforcement officer soliciting funds — it’s like having a police chief soliciting funds for advertising in the police hand-book from tavern operators.” The “strange sight” and the comparison of the plaintiff as an enforcement officer with a “police chief soliciting funds for advertising in a police hand-book from tavern operators” would undoubtedly leave an impression in the minds of readers of the publication that plaintiff was guilty of reprehensible conduct and would probably subject him to their hatred and contempt. The introductory paragraph of the publication describes the “big centralizers” as engaged in a concerted practice to take advantage of the dairy farmers in the state and that the ADA is controlled by the centralizers. Then follows the charge quoted in paragraph 8 of the complaint that the plaintiff is more concerned with collecting funds from the dairy farmers for the benefit of the centralizers’ ADA than in doing his job as enforcement officer and supervisor of the industry in the farmers’ behalf. The language quoted purports to state facts, which if true, would establish that the plaintiff, as dairy commissioner, had failed to enforce the dairy laws of the state.

It is well settled that' a demurrer admits the truth, of all issuable • relevant facts that are well pleaded.

. In the case of Roethke v. North Dakota Taxpayers Association, 72 N.D. 658, 10 N.W.2d 738, 740, this court said:

“The demurrer deals with the substance rather than the form. McCurdy v. Hughes, 61 N.D. 235, 237 N.W. 748. Even where a cause of action contains statements of different' items and the sufficiency of some of these is disputed, as not stating a cause pf action, the demurrer cannot be sustained, for ‘unless all are bad the demurrer should be overruled.’ King v. Stark County, 67 N.D. 260, 263, 271 N.W. 771, 773. With respect to the alleged allegation of facts set 'forth in the complaint it is commonplace that the demurrer admits the truth of all issuable relevant material facts that are pleaded, including the falsity, publication and the malice alleged, in an action for libel. Englund v. Townley, 43 N.D. 118, 174 N.W. 755. See, also, Federal Land Bank [of St. Paul] v. Koslofsky, 67 N.D. 322, 327, 271 N.W. 907, 908.”

We are of the opinion that the statements in the published article quoted in paragraphs 6, 7, 8 and 9 of the complaint, if true are derogatory of the plaintiff. They charge him with breach of official duty and therefore state a cause of action. The demurrers were therefore properly overruled.

The defendant next argues that the evidence is insufficient to support an action for libel per se. 53 C.J.S., Libel and Slander, § 121, p. 199, defines libel per se as follows:

“In order to be libelous per se it is not essential that the words should involve an imputation of crime, or otherwise impute the violation of some law, or moral turpitude, or immoral conduct, and newspaper articles generally may be libelous and actionable per se if they tend to expose plaintiff to public hatred, contempt, ridicule, aversion, or disgrace, and to induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse and society. Publications charging dishonesty or fraud, drunkenness, falsehood, unchastity, or which tend to injure a person in his occupation, trade, business, or profession, have been held libelous per se.”

To the same effect is the following statement from 33 Am.Jur., Libel and Slander, Sec. 79, page 92:

“It is libelous per se to impute to a person in his character as a public officer incapacity or any kind of fraud, dishonesty, misconduct, or a want of integrity, or to charge that he has been induced to act in his official capacity by a pecuniary or other improper consideration. The libel of a public officer, affecting him personally, is governed by the same rules that apply to an individual; but libel affecting him in his official character, and of such nature that, if true, it would be cause for his removal from office, is actionable per se. Even spoken words which impute unfitness or incapacity as regards an office of profit are actionable.”

Publications which tend to injure a person in his occupation, trade, business or profession, have been held libelous per se.

The complaint alleges that the statements in the publication charging plaintiff with failure to discharge his official duties are false. The plaintiff and his witnesses testified to facts and circumstances establishing that he had discharged the duties of his office. The defendant’s answer alleges that the statements in the published article are true and that they are fair comment of a public official. However, defendant has adduced no evidence that the published statements are true, and therefore the testimony of the plaintiff and his witnesses is uncontradicted. Published statements purporting to be facts, citing specific instances of failure to perform official duties cannot be said to be fair comment of a public official when such statements are not based upon any factual foundation. Defendant’s exihibit D, its letter to the plaintiff of May 4, 1953, is in effect an admission that the publication was made without knowledge of its correctness. It requests the plaintiff to furnish information with respect to the statements contained in the published article-information which the defendant should have obtained before the article was published. We quote from the exhibit:

“You stated that the audit of the ADA in North Dakota revealed • that an amount between $1000.00 and $1500.7 00 was expended under your direction for clerical help, etc. Since when we publish the correction, we wish to be absolutely correct, we would .like to. have the exact amount for the story. Would you also send us a statement ,of all funds advanced and expended under your direction or for you, which you received from the national ADA? This should include all expense incurred in out-of-state travel, which was not paid by the State of North Dakota, and was paid by the state and/or national ADA, and any and all expense which may have been paid to you and through you by the national and state ADA.”

The general rule is that the doctrine of fair comment does not permit newspapers to niiake derogatory statements concerning a public official unless such statements are based on facts or the occasion is privileged. ■

“Generally, however, comment or criticism of the acts of a public officer must be based or founded on truth. So it has generally been held that the right to comment or criticize does not embrace the right to make false defamatory statements of fact imputing a criminal offense or moral delinquency, or otherwise aspersive of the character of plaintiff, although made in good faith, and although the charge relates to the act of an officer in the discharge of his official duties.” 53 C.J.S., Libel and Slander, § 134, pp. 218, 219.

In the case of Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869, 873, the Supreme Court of New Jersey held thát:

“While matters of public interest and concern, such as the public acts of a public man, if truly stated, are legitimate subjects of criticism, and every one has the right to comment thereon so long as he does so fairly and without malice, nevertheless, the rule is well settled in this state, and in the great majority of jurisdictions elsewhere, that the defense' of fair' comment and criticism must be founded on true facts. What is thus privileged, if we may use that term, is the comment and criticism, and not the statement of alleged facts on which they are based, and if one states facts otherwise libelous, he will not be privileged under the plea of fair comment if they are not true. Such a plea does not extend to the making of false statements, and it is no defense that they •were mistakenly or honestly made, although such matters may be considered in mitigation of damages. News papers have no greater rights or privileges in this respect than ordinary citizens.
“Generally speaking, comment or criticism must be founded on truth. While ordinarily it does not consist of the .assertion of facts, an allegation of fact may be justified by its being an inference from other facts truly stated, as discussed supra § 131. ;The right to comment or criticise does not extend to, or justify, allegations of fact of a defamatory character. If the publication is not a comment or' criticism, but a statement of fact, the rules to be applied to the nature of recovery are those applicable to any other case of defamation, if defamatory and false, it is actionable, although made in good faith, without malice, and under the honest belief that it is true. Probable cause for making it is not a factor to be considered in determining whether or not it is privileged. Where the accusation is defamatory, the damage does not result from criticism based on the facts but from the false accusation that the facts "exist for which the criticism is made.” 53 C.J.S., Libel and Slander, § 132, pp. 215, 216.

Section 14-0203 NDRC 1943 defines Civil Libel as follows:

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred,-contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

Appellant argues that since no special damages are alleged or proved in the case, if the plaintiff is to prevail at all, it must be on the theory that he has pleaded and proved the alleged matter to be actionable per se, yet, after each paragraph alleging defamatory matters, innuendo is pleaded.

The general rule is that a defamatory publication is libelous per se when, without aid of innuendo, it must be presumed to expose the plaintiff to hatred, contempt, ridicule, or obloquy, or to cause him to be shunned, or to have a tendency to injure him in his occupation. Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400. If the publication is libelous per ’Se, no innuendo is necessary. The question in the instant case is therefore whether the language in the published article. is in fact libelous per se.

'We have referred to the published article set out in the complaint. In paragraph 6 of the complaint the quoted portion of the publication charges the plaintiff with being engaged in activities hot connected with the duties of his office and for which he enjoys "expense accounts nearly equal to his state salary. No innuendo is necessary to explain the meaning of the language to readers of the publication.

The language quoted in paragraph .7 of the complaint is an odious comparison of the plaintiff with “a police chief soliciting funds for advertising in a police handbook from the tavern operators,” The language quoted in paragraph 8 charges the plaintiff with failure to enforce the dairy laws of the state, and paragraph 9 charges that the taxpayers of the state have received no benefit for the thousands upon thousánds they have paid to maintain the dairy commissioner’s department because no effort has been made to promote the dairy industry in the state. No innuendo or explanation is necessary to point out that the plaintiff as dairy commissioner is responsible for the lack of effort to promote the dairy industry of the state. The complaint alleges that all of the charges made in the published article are libelous per se. Where the publication complained of is libelous per se, innuendo if pleaded, is harmless and may be treated as surplusage.

“On the other" hand, the innuendo' may be treated as surplusage where it is used in connection with words which are unequivocal and actionable per se. In such case plaintiff is not confined to the meaning ascribed in the innuendo, and if sufficient remains to show that the’article is libelous per se the action may be maintained. So it is generally held that, where plaintiff in an action has, by innuendo, put a meaning on the alleged defamatory publication which is not supported by its language or by proof, the court may nevertheless sustain the pleading and submit the case to the jury, if the publication is defamatory per se.” 53 C.J.S., Libel and Slander, § 162, p.. 253.

The trial court held as .a matter of law that the publication was libelous per se and submitted the issues to the jury. We tbjnk the language of the published article is of such character as to warrant the trial court’s conclusion that it was libelous per se and therefore it was not error to submit the issues to the jury.

The next contention of the defendant is that the trial court erred in the reception of evidence. Many alleged errors are cited but they are not argued to any extent in defendant’s brief.

The plaintiff in one instance had testified without objection that the object of the ADA was to improve and promote the greater use of dairy products. He was then asked by his attorney: “I will ask you this: if, from your experience with ADA and as dairy commissioner, it has accomplished and does accomplish ‘those purposes?” Over objection that it was calling for a conclusion plaintiff was permitted to answer: “It has accomplished its purpose.” If the answer' was a conclusion of the witness, it had but little, if any, bearing on the issue as to whether the published article was libelous, and therefore was harmless error. Other alleged errors in the reception of evidence were assigned, in the specifications, but they were not argued except in a general statement to the effect-that sev-eral witnesses were permitted to testify under paragraph -3 of the complaint which it is alleged the trial court erroneously refused to strike. Since we have held that the refusal of the trial court to strike paragraph 3 of the complaint was not error it is not necessary to consider it further here. ....

Defendant concedes in its brief .that since there was no denial of the matter claimed, to have been published there were but two..questions -for the jury to decide: was the matter true, and if not, how much damage shpuld be given.

Defendant argues however that the court erred in instructing the jury as follows:

“The term nonfeasance has been used in the pleadings. Nonfeasance means neglect to do what should have been done. You are also instructed that in regard to the duties of public officials, the laws of the State of North Dakota provide as follows:
“ ‘Any public officer and any person holding any public trust or employment who wilfully neglects or refuses to perform the duties of his office as prescribed by law is guilty of a rhis-demeanor.’ ” ;

The published article charged! the plaintiff with neglect and failure to perform his official duties. If the charges thus made were true the plaintiff would be guilty of nonfeasance in office. The truth or falsity' of the charges of nonfeas:ance was therefore a question of fact for determination by the jury. The instructions of the trial-court on the question of nonfeasance were therefore correct. The jury returned a' verdict in favor ©f the plaintiff. After due consideration we are of the opinion that the evidence is sufficient to support the verdict.

Finding ho reversible error in the record the judgment is affirmed.

BURKE, C. J., and MORRIS, CRIMSON and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: JOHNSON,' Judge.

license: Public Domain

text:
    Anna KILLMER, Plaintiff and Respondent, v. Bruno DUCHSCHERER, Defendant and Appellant.
    No. 7471.
    Supreme Court of North Dakota.
    Oct. 26, 1955.

      Heringer" & McClintock, Rugby, and W. R. Spaulding, Towner, for defendant and appellant.
    Waldron & Kenner, Minot, for plaintiff and respondent.
   JOHNSON,' Judge.

This is an action for damages resulting from' an accident that: occurred on the evening of August 11, 195,1, at approximately 9:30 p. m. while the plaintiff was standing near or behind a stalled automobile on United States Highway Two in Pierce County, North- Dakota, at a point about two and one-h'alf miles west of the-junction of Highways Two - and Three. The defendant was driving east on Highway Two in a 1950 International three-quarter ton truck. He struck the plaintiff and she was seriously injured.

The plaintiff alleges that the defendant negligently and carelessly drove and.managed his motor vehicle in the following respects, to wit:

1. At excessive speed;
2. Without keeping the proper lookout;
3. Failing to exercise due caution;
4. Without keeping the motor vehicle under proper control;
5. Without giving warning of approach ; ■

that by reason of his negligence the defendant -rammed, bumped and tossed the plaintiff into the air and against the . stalled automobile; that his negligence was the direct and proximate cause of the injuries received by the plaintiff; that she received injuries to her head, body, arms, legs, feet and hips and was crushed, bruised, lacerated and injured “internally and externally”, and that such injuries are of a permanent and lasting nature. She requested damages, both general and 'special.

The defendant answered denying generally the allegations made by the plaintiff and asserted affirmatively that he drove his truck at a speed of less than 50 miles an hour; and that as he approached a point about 2¼ miles west of the intersection of Highways Two and Three, he noticed' a car approaching from the east going west, and jiist as he passed this vehicle he suddenly came upon a vehicle that wás stopped on Highway Two in the defendant’s lane •of traffic, without any lights or warning signs that: were' visible to' 'the defendant whatsoever; and that as the defendant •pulled out to the north in order to avoid colliding with 'said vehicle, hé' noticed several persons standing near to the rear of said parked vehicle who had obstructed the view of the taillights of said vehicle, df any taillights were burning at said' time; that he felt a slight jar to his truck; that he stopped immediately and upon investigation noticed that a wofiian was lying on the pavement in a position thereon adjacent to the bumper of the parked car that he had just passed; that this woman was later identified as the plaintiff in, this action; that at the time the accident occurred the plaintiff was standing on the pavement of Highway Two in a position to the rear and directly north of the vehicle that was parked on the highway, and that -she saw or should have' seen the defendant’s vehicle approaching from the west; that she saw or should have seen other cars approaching from the east, just prior to the accident; that’she was warned by others standing behind and adjacent to the car that was parked, not to stand on the highway and to'get off the'pavement; but that notwithstanding said warnings the plaintiff carelessly, negligently and recklessly continued to stand, on the highway, knowing and realizing that she was in peril and her life was in danger; that she did not exercise ordinary care, caution, or prudence in the premises to avoid the accident and the resulting injuries, and that the injuries and damage sustained by her, if any, were proximately contributed to and caused by her failure to exercise ordinary care, caution and prudence.

The case was tried to a jury and resulted in a verdict in favor of the plaintiff. The defendant made a motion for judgment notwithstanding the verdict or, for a new trial. Judgment was entered on the verdict. The defendant appeals from the judgment and the order denying motion for judgment notwithstanding the verdict or for a new trial.

The defendant' lists seventeen alleged errors of law and asserts 'three reasons why the evidence -is insufficient to sustain the verdict. For convenience they are grouped as follows:

. 1. Denial of motion for dismissal made by the defendant at the end of the plaintiff’s case and again renewed after' both parties had rested, and denial of a motion for a directed verdict made by the defendant .after both parties had rested, based on .the insufficiency of the evidence.
2. Permitting cross-examination under the statute of the defendant concerning Exhibit No. 1, a purported plat of the scene of the accident, which, however, was not in shape to be admitted in evidence and which was not admitted.
3. Recalling defendant’s witness, Sheets, for further cross-examination after the defendant had rested, and examination of such witness with reference to an offense of reckless driving and permitting L. A. Koons, Police Magistrate of Rugby, North Dakota, in rebuttal, to testify concerning the conviction and sentence imposed.
4. Failure of proof as to a specific allegation in the complaint as to the location of the plaintiff on the highway at the time of the accident.
5. Failure to give five' requested instructions for the defendant, and failing to give any instruction relevant, to the duty of the plaintiff at the time and scene of the accident.
6. Denial of the defendant’s motion for judgment notwithstanding the verdict or in the alternative for a new trial.

We will first consider the alleged insufficiency df the ‘evidence.

The defendant asserts:

1. That the plaintiff failed to prove by fair preponderance of the evidence that the defendant was guilty of negligence; that there is no competent. evidence showing excessive speed, lack of proper, control of the truck, lack of keeping proper lookout, or any other wrongful act upon the,part of the defendant, and no competent proof that he has violated any traffic law or been guilty of any misconduct.
2. That the plaintiff was guilty of contributory negligence as- a matter of law in that she voluntarily placed herself on the main traveled highway in the night without any necessity therefor and without keeping any adequate watch for her safety and that under circumstances which necessarily contributed to and were responsible for her injuries.
3.That the evidence conclusively shows that the presence of the car in which the plaintiff was riding, together with Sheets’ car upon one side' of the road, with the plaintiff standing near the center of the road, and with a car coming towards the defendant, created á hazardous condition and an emergency, and that the defendant acted as a reasonable and prudent man might in such emergency, while the plaintiff had voluntarily helped to create the emergency by wholly failing to act as a reasonable and prudent person would in the light of such hazardous condition and emergency.

The defendant has abandoned the specifications of error with reference to. plaintiff’s Exhibit 1.

For a better understanding of the facts, we set them forth. At about 9:30 p. m. on August 11, 1951, the plaintiff, with five other persons, was riding as a passenger in the 1938 Chevrolet driven by her brother-in-law, Marvin Bjoraa, who was on his way from Minot to Rugby on Highway Two. At, approximately two and one-half miles west of Rugby, Mr. Bjoraa’s car was struck from behind by a car driven by John Sheets. The impact between Mr. Bjoraa’s car and that of John Sheets caused Bjoraa’s car to leave the highway and come to rest on the south side of the south ditch of the hard surfaced highway. The Sheets’ car came to a stop just east of the, Bjoraa car with two wheels on the blacktop and the two right wheels on the graveled shoulder of the road. After the collision Sheets got out of his car and all the occupants of the Bjoraa car got .out and came towards the •stalled car of Mr. Sheets, and stood near his car in the. ditch or on the shoulder of •the pavement, either to the rear or north of Sheets’ car. The evidence is in conflict' as to the exact location of the plaintiff at the time of the accident between the defendant’s truck and the plaintiff. Most of the witnesses place the plaintiff to the rear of Sheets’ car. One of them locates her five or ten feet behind the' car, standing partly on the pavement and partly on the gravel. Another places himself six feet behind the car, towards its south side, and puts her directly north of himself on the pavement. Still another witness locates her to the rear and about three feet north of the Sheets’ 'car, but does not state how far to its rear she stood.

There is some testimony indicating that the plaintiff and others on the pavement were warned to stay off the pavement and to keep out of danger. The testimony is in conflict as to-whether or not'this was directed specifically to the plaintiff. At the time of. the accident the defendant was driving his truck with the lights on dim.. At about the time of the accident he had just met a car coming from the east and another car was some distance away, also driving towards the west in the north lane of the highway." The defendant was driving at a speed of from 4S' to- SO miles per hour. His testimony is that he did not see the Sheets’.car until he was 15 feet away from it. Mr. Sheets says that the defendant swung to the north when he was only three or four feet away from the car.As he swung towards the north to avoid hitting the Sheets’ car he struck the plaintiff with the right front fender of his truck. The testimony is not clear as to whether the plaintiff was hit by the front of • the fender or received a glancing blow. She came to rest on the pavement with her head and shoulders under the left rear part of the Sheets’ car near the left hind wheel.

The issues involved present the question of whether there is any competent evidence to show negligence on the part of the defendant; whether the record affirmatively shows that the plaintiff was guilty of contributory negligence as a matter of law; and whether the court committed error', in denying the defendant’s requested instructions 'and failing to instruct the jury on the defendant’s defense.

The jury having found for the plaintiff, we must accept that version of evidence most favorable to the plaintiff as being'the correct one.

Negligence and contributory negligence are questions of fact for the-jury, and it is only when the evidence is without material conflict, and is such that reasonable men must draw the same conclusion therefrom that the question' is one for the court. Moe v. Kettwig, N.D., 68 N.W.2d 853. The evidence in this case shows that the defendant was about to meet a car when the accident took place. He had his’ lights on dim. Presumably they were in perfect working order. There is no evidence to the contrary. He did not see the Sheets’ car until he was within 15 feet of its rear. Regardless of whether the plaintiff was standing 10 or 15 feet behind the Sheets’ car or about that distance behind- it and -about three feet to the north of it,there is no doubt that the defendant, if he had observed the Sheets’ car before he was about 15 feet away from it, would also have seen the plaintiff. She was not at anytime across the centerline or in the north lane of the highway. The plaintiff had a right to be on the highway if she did not unnecessarily expose herself to dangqr.. Even if we assume that the defendant did not see the taillights on the Sheets’ car, if they were in fact burning, the question remains whether or not the defendant, driving on a level highway with his lights in order, on dim, was maintaining a proper lookout. No satisfactory evidence was presented to indicate any reason why the defendant should not have seen the Sheets’ car before he was almost upon it. It is negligence to drive a car so' fast that you cannot stop within the distance you can see. Axelson v. Jardine, 57 N.D. 524, 223 N.W. 32. If the lights of the defendant’s truck did not permit vision beyond 15 feet, it Was a question for the jury to determine whether he was using due care or was negligent in driving 45 to 50 miles per hour. If his lights on dim. permitted vision beyond 15 feet, then it became a question for the jury also to determine whether he was in fact maintaining a proper lookout. Under either possibility, it was for the jury to determine from the evidence and fair inferences therefrom whether the defendant at the time of the accident was exercising due care in the operation of his truck or was negligent therein. There is no testimony that he could not see further than 15 feet ahead of his truck with his lights on dim. The testimony is that he did not see the Sheets’ car until he was about that distance from it. Because of the defendant’s failure to observe the Sheets’ car until he was within 15 feet of it, fie was no doubt unable,to give any warning of his approach. He never saw the plaintiff. However, he. felt the impact of his truck against her. He does not know, nor is the testimony clear, whether he applied his brakes prior to hitting her or about that time, or immediately after she was hit.

The act of negligence charged against the plaintiff is that she was in a place of danger; that she' did not look, or that if she -looked she did not see the approach-of the defendant’s truck, or paid no heed to it. The plaintiff has no memory of the events surrounding the accident. Her position on the highway is in dispute. The jury has determined that no act of the plaintiff proximately contributed to the accident. It’ must have taken that view of the evidence which indicates that the plaintiff was not located on the highway in a place of imminent danger and that she had a right to be thereon at the time of the accident.

It is strenuously argued that the physical-facts as to the location of the plaintiff after the accident demonstrate that it could not have happened as indicated by the testimony of her witnesses. The evidence is not in agreement as to the plaintiff’s position on the pavement after the accident or as to her exact proximity to the Sheets’ car. Mr. Sheets did not see her as-she was hit. Mr. Volk, one of the witnesses, was perhaps 200 feet away, driving in the north lane and was about to .meet the defendant when he observed the accident. It is uncertain whether the plaintiff was hit by the front part of the right front fender of the defendant’s truck or by the side of the fender. She was a living object. No one knows whether or not she was carried forward by the impact. There are many unknown elements involved that make it impossible to conclusively demonstrate from the- physical facts that the testimony of her witnesses is not worthy of belief or is incredible.

Where the evidence is in conflict and, reasonable men might draw different conclusions therefrom, this court on appeal will disturb neither the verdict of the jury based on such evidence, nor , the order of the trial court denying a motion for judgment notwithstanding the verdict, or for a new trial on the ground of insufficiency' of evidence. Clark v. Josephson, N.D., 66 N.W.2d 539; Moe v. Kettwig, N.D., 68 N.W.2d 853. When the facts relating to negligence or contributory negligence are not in dispute, and but one inference can reasonably be deduced therefrom, the question of negligence or contributory negligence becomes a question of law for the court. Morrison v. Lee, 16 N.D. 377, 113 N.W. 1025, 13 L.R.A.,N.S., 650; Peterson v. Denevan, 8 Cir., 177 F.2d. 411; Moe v. Kettwig, N.D., 68 N.W.2d 853.

The evidence in this case is not of such a nature as to make the issue of contributory negligence one of law for the court. The motions of the defendant for dismissal and directed verdict were properly denied. There was an issue of fact, for the jury.

We will next determine whether there was any error involved.in recalling defendant’s witness Sheets- for further cross-examination after the defendant had rested, as is claimed, and further whether it was. error to cross-examine him with reference to the offense of reckless driving, and to' allow L. A. Koons to testify in rebuttal concerning his conviction and sentence.

Although the defendant asserts that he-had rested his case and that Mr. Sheets was. recalled by the'plaintiff for further cross-examination thereafter, the transcript of proceedings does not show that the defendant had in fact rested.

On' the evening of December 14, 1954, the court adjourned the hearing until 9:30 a. m. December'15, 1954. The jury was given the usual caution. When the court reconvened the morning of December 15, Mr. Waldron called Mr. Sheets for further cross-examination. No objection was made thereto by the defendant at the time. We conclude' that it was wholly within the discretion of the trial court to allow further cross-examination of Mr. Sheets. The propriety of examination and cross-examination of witnesses and the order in which evidence is presented are matters largely within the sound discretion of the trial court. Mevorah v. Goodman, N.D., 57 N.W.2d 600, and authorities there cited. The action of the court in that connection will not be disturbed in absence- of a showing of abuse of discretion. No error was committed by allowing further cross-examination of Mr. Sheets on the morning of December 15th.

On the previous day Mr. Sheets on cross-examination had admitted that he had been charged with some offense which was designated as “following too close” and that he had paid a fine. This evidence was received without objection. Upon further cross-examination the witness was asked:

“Now yesterday I asked you if you had been charged with following too close as a result of, this accident between your car and Bjoraa’s and you said you were at that time. Now what was the charge? A. Driving toó close; you couldn’t see nothing.
“Q. Wasn’t the charge ‘Reckless Driving’? A. I wouldn’t know if it was reckless.
“Q. You wouldn’t know so yesterday when you answered it was following too closely, you didn’t know then either? A. Well I was close.
“Q. Did you know that you had been found guilty of Reckless Driving, or didn’t you? A. I don’t know any more now than I did yesterday.
“Q. And at the time that you were. found guilty of Reckless Driving as a result - of driving into the back of Bjoraa’s car, was the coupon which is No. 131994 — was that taken from you?
“By Mr. Heringer: Objected to- as wholly immaterial.
“By Mr. Waldron: I propose to show the motive. ,
“By the Court': He may answer.
“A. I wouldn’t know that.”

■ It Will be noted that no objection was made to the foregoing testimony, except the last question, in which it' was assumed that Mr. Sheets had been found guilty of reckless driving. In State v. Kent, 5 N.D. 516, 558, 67 N.W. 1052, 1064, 35 L.R.A. 518, this court held that where evidence of a conviction of crime is offered, to affect credibility only, the answers of the witness are absolutely conclusive on the party asking. “A witness may be impeached on cross-examination by inquiries as to collateral facts tending to incriminate-, disgrace, or degrade him, and, where such an, inquiry is as to previous conviction- on account of a criminal offense, it is not confined to conviction for felony.” State v. Fury, 53 N.D. 333, 205 N.W. 877, Syllabus 4. In this last case a witness for defendant, had• been asked,on. cross-examination'whether: she had not been convicted of a violation of the prohibition law, a misdemeanor. An objection was made, and overruled, and the witness, required to answer. She admitted the conviction. .

Here we have the peculiar situation that witness Sheets had neither made an unequivocal .admission that he had been convicted of reckless driving, -nor had he made a denial thereof. The rule seems to be established in ■ this state that where evidence of facts which are material only because they affect the general credibility of the witness, such as previous conviction of a crime, evil associations and the like, can in general be shown only by cross-examination of the witness, and the examination, is concluded by the answers, however false they may be. State v. Malmberg, 14 N.D. 523, 105 N.W. 614; State v. King, 53 N.D. 95, 204 N.W. 969. But see Wigmore on Evidence, Third Edition, Sections 980 to 987, inclusive, with particular reference to Section 987, on pages 605 and 606, note 4, and Section 1005(a), page 661, note 2. See also 58 Am.Jur., Witnesses, Section 751, p. 406. It would have been error over objection to allow cross-examination of witness Sheets as to the nature of the crime of which he had been convicted and the specific details thereof. But in view of all the circumstances the question remains whether this was prejudicial error. The jury had before it the Tacts of -the collision with the rear of the Bjoraa car, which forced it into the ditch. It -knew that Sheets had been ’.convicted of some traffic crime and fined. He had admitted as much. No objection had been made to the testimony of . Mr. Sheets concerning the details of the'charge and its. nature until the inquiry was made’ as to whether or not a- coupon of his driver’s license had been taken from him. He -was further examined concerning the matter, again without objection. Although' the witness had never- admitted the crime by its name, the juryhad before it- information as to the crime involved. This was true when Mr. Kobns was called in rebuttal. It - was error over objection to admit his testimony. But his testimony was not in contradiction of anything that had been said by Sheets, but merely cumulative additional information as to the details. It added nothing to the 'knowledge that was already in the possession of the jury without objection, except the amount of -the fine and costs. Improper impeachment- of a witness which does not deprive a party of any substantial right is not grounds, for a reversal. In order to warrant a reversal because of allowance of cross-examination respecting collateral matters, it must plainly appear that the ruling resulted in prejudice. 58 Am.Jur., Witnesses, Section 672, page 367; Underwood v. Atlantic Elevator Co., 6 N.D. 274, 69 N.W. 185.

A party seeking the reversal of a judgment .has the. burden of showing that his substantial rights were prejudiced by the.ruling of which he complains. Bristol & Sweet Co. v. Skapple, 17 N.D. 271, 115 N.W. 841; State v. Van Horne, 71 N.D. 455, 2 N.W.2d 1. The appellant has the burden not only of showing the error but of showing that the error was prejudicial. Moe v. Kettwig, N.D., 68 N.W.2d 853. Here the witness admitted conviction of a crime. He had- admitted that he was fined. While under the law of this state extrinsic evidence contradicting his statements was not admissible, the evidence elicited from Sheets on his further cross-examination, and the evidence of. Koons in-rebuttal, was merely cumulative and not in contradiction of the witnesses’ answers. We -cannot see how the defendant, Duch-scherer, was prejudiced by the additional details concerning the conviction of witness Sheets. Admitting that the rule is that it is error to cross-examine a witness concerning the conviction of a crime, which is a collateral matter and affects his credibility only,- after he has made an admission thereof, and to call in rebuttal a witness to further enlarge- upon the facts, we cannot see that the cumulative evidence thus obtained could further prejudice the jury than its previous knowledge of the conviction received without objection.,

The next issue for determination is whether the court committed an error in denying the defendant’s requested instructions or failed to instruct adequately on the defendant’s defense. The trial court marked the five requested instructions as: “given in substance”, “given in-' substance but not in form”, or “given in substance without specific reference to pedestrians”, or “covered without specific reference to pedestrians.”

The first requested instruction was as follows:

“I charge you that a person who knowingly and ' of his own volition exposes himself to an obvious danger cannot recover damages for any -injury which he might have avoided by use of reasonable care.
“When one, being at a place of safety, sees or could see approach of moving vehicles in close' proximity to him and suddenly moves .from place of safety into path of such vehicle and is struck, his own conduct constitutes contributory negligence more than slight in degree as á matter of law and precludes recovery.”

There is no evidence in the record, unless it be by inference which apparently the jury did not draw therefrom, • that the plaintiff knowingly exposed herself to danger, nor is there any evidence to show that she suddenly moved from the place of safety into the path of the vehicle. The requested instruction did not bear properly upon the facts. The court need not instruct upon facts that are not in issue.

The defendant requested the court to give the following instruction:

“I charge you that one who , stands upon a highway must exercise reasonable care, for his own safety. Reasonable care means that care which a reasonably prudent person would have exercised under the same or similar circumstances. The doctrine of contributory negligence rests, upon the principle that one is never absolved from exercising reasonable and ordinary care for his own .safety, and cannot thrust all responsibility upon others.”

The content of'the requested instruction was adequately covered by the instructions given by the court. It said:

“The. term or phrase - ‘contributory negligence’ as used in these instrucT tions, is not a question as to whose negligence is more proximate, but whether or not the negligence of the injured party directly contributed to cause the injury. Putting it in other words, the law places upon all persons the duty of exercising ordinary care to avoid injury, and even, though the jury should be satisfied, by a fair preponderance of the evidence, that the defendant was negligent, • and that the other party was injured thereby * * yet, if the evidence also shows that the injury would have been avoided by the exercise of ordinary care by the injured party, and that the injured party did not exércise such care and was negligent, and such negligence contributed to’ cause the injury, the injured party should (would) be guilty of contributory negligence. If you find such contributory negligence, it bars recovery by the party guilty of it.” . ■

The other three requests for instructions made by the defendant pertained to the designation of the plaintiff as a “pedestrian”. They placed particular emphasis upon her duty of care as such upon entering a place of danger; that she was “bound’ to take notice of danger incident to public travel on highways, especially where automobiles are constantly passing andrepass-ing”; and as such, “must look out for approaching traffic with such attentiveness and care as to see what is in plain sight”. Without determining that the plaintiff was a pedestrian at the time'of the accident, these requested instructions were sufficiently covered by the court when it said:

“If the evidence also shows that the injury would have been avoided by the exercise of ordinary care by the injured party, and the injured party did not exercise such care and was negligent, and such negligence contributed to cause the injury, the injured party should (would) be guilty of contributory negligence. If you find s'uch cbntrib-utory negligence, it bars recovery by the party guilty of it.”
“It is the duty Of the trial court to ■fully.and-, fairly instruct the jury on', the law .governing the issues involved, and each party has a right to requ.est the court to charge on certain matters believed to be involved. The;court will, not instruct on 'matters not in issue, even though requested to do so, nor give requested instructions, that are-erroneous or insufficient; nor is the court. required to charge in the precise language requested by the party.” Bagg v. Otter Tail Power Co., 70 N.D. 704, 707, 297 N.W. 774, 776.

This same cáse also stated:

“It is not necessary to cite authority showing the .court may refuse a requested instruction when the matter is already fully and fairly .covered by the charge giyen by the. court, even though the requested instruction, enunciates correct legal .principles.”. Bagg v. Otter Tail Power Co., supra.

The only argument advanced as error is that the instructions are merely: in general terms, and that they should have been more specific to fairly and fully apprise the jury of the defendant’s defense and of-the duty imposed upon the plaintiff by law. The trial court felt that the. requested instructions had been given in substance. The jury was instructed that the plaintiff owed a duty of care; that if she, by her negligence, contributed to the accident, she would be. barred from, recovery; that if the .evidence was equally balanced, the party having the burden of proof on the issue must be regarded as having failed to establish the same; that the law places upon all persons the duty of exercising ordinary care to avoid injury; that if the jury found contributory negligence the guilty 'party may not recover. - -

The trial court may properly refuse requested instructions on any or all phases of the case, and refusal thereof does not constitute error, or at most is harmless error, although the requested instructions announce correctly rules of law, applicable to the facts, where the propositions therein stated as far as applicable to the case are substantially and correctly covered by the general charge of the court. 88 C.J.S., Trial, § 399, p. 1088; Peterson v. Bober, N.D., 56 N.W.2d 331; Enget v. Neff, 77 N.D. 356, 43 N.W.2d 644; Reservation Motor Corp. v. Mayer, 77 N.D. 431, 43 N.W.2d 537; McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771; Myers v. Hagert Construction Co., 74 N.D. 435, 23 N.W.2d 29; Griffin v. Implement Dealers Mut. F. Ins. Co., 64 N.D. 146, 250 N.W. 780.

‘ The rule is especially applicable where the requested instructions' are merely an amplification or a more detailed restatement of the law and the facts- already charged. Capital Transp. Co. v. Alexander, 219 Ark. 419, 242 S.W.2d 833. This is also true where the requested instructions single out' and give undue prominence to particular portions of the evidence. Kraft v. Nemeth, 115 Cal.App.2d 50, 251 P.2d 355. While it would no doubt have been permissible for the trial court to' have more specifically instructed with reference to the duty of care placed upon the plaintiff under the .facts and' circumstances, the law had been covered- in substance, and the mere failure to -particularly point, out the facts relating to the situation of the- plaintiff is not. prejudicial error. The court had correctly stated the law. to guide the jury in its-deliberation upon the facts that had been presented to it. ..

There is no merit to specification that plaintiff, had failed to prove that portion of her- complaint, “that plaintiff was standing on the south side of the road observing'the damaged automobile which said automobile was parked on the south' edge of the road facing east.” There is no proof in the record that the plaintiff was in the north lane of the road.' The stalled automobile of Mr. Sheets was in' the south lane, partly on and partly off the highway. The jury must have found, as indicated by its verdict, that'the plaintiff was not negligent, that she was in the south lane of the highway arid the pleading referred to'rindicates that the phrase “south side of the road” has reference to the south lane thereof.

We find no prejudicial error in the record of the trial of this case. The motion for judgment notwithstanding the verdict or in the alternative for’ a new trial was prope'rly denied. The judgment and the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial are affirmed.

BURKE, C. ]., and SATHRE, MORRIS, and GRIMSON, JJ., concur.