author: VANDE WALLE, Chief Justice.

text:
    2000 ND 88
    MATRIX PROPERTIES CORPORATION, a Minnesota corporation, formerly known as E.W. Wylie Corporation, Plaintiff and Appellee v. TAG INVESTMENTS, a North Dakota partnership, and James A. Grettum, an individual resident of North Dakota, Defendants and Appellants
    No. 990336.
    Supreme Court of North Dakota.
    April 27, 2000.
    Rehearing Denied May 30, 2000.

      Sidney J. Spaeth, Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] TAG Investments and James A. Grettum (“TAG”) appealed from a summary judgment in favor of E.W. Wylie Corporation (“Wylie”), granting specific performance of an option agreement. TAG asserts Wylie failed to exercise its option, and alternatively, its exercise of the option was conditional. Wylie timely and unconditionally complied with the option agreement. We affirm.

[¶ 2] In October 1996, TAG agreed to sell Wylie certain real estate in Cass County. As part of the transaction, Wylie received an option to purchase approximately 114 additional acres from TAG. The real estate consisted of two tracts of land: Tract I was 35.52 acres and Tract II was 78.37 acres of land. The option to purchase required Wylie pay $9,375.00 per acre for the real estate and could be exercised any time before June 1, 2001 at 5 P.M.

[¶ 3] However, by its terms, exercise of the option required Wylie to make minimum purchases of the option land prior to June 1, 2001. Wylie was required to purchase at least 20 acres of land on or before June 1, 1999 and at least 40 acres on or before June 1, 2000.

[¶ 4] Within 10 days of Wylie exercising its option for an “Individual Parcel,” TAG was required to deliver to Wylie an abstract of title for the parcel. If the abstract of title failed to disclose a “good and marketable” title, Wylie could declare the option and the exercise or partial exercise thereof null and void. If no objections were made by Wylie to the title, closing was to occur within 45 days of the notice. However, if Wylie objected to title, TAG could be granted up to 120 days to cure the title problems.

[¶ 5] On May 26, 1999, Wylie gave notice to James Grettum, a general partner of TAG, that it was going to purchase 21.82 acres of land pursuant to the option agreement. The letter, dated May 25, 1999, stated:

This letter shall serve as our written intention to purchase 21.82 acres in the South portion of Tract II.
Enclosed you will find a Certificate of Survey prepared by Ulteig Engineers describing the acres to be purchased. At your earliest convenience would you please supply us with an updated abstract.
The legal description for the Abstract of Title should match the legal description on the enclosed Certificate of Survey. Please notify me when the abstract has been prepared so we may proceed with a title opinion. If you would prefer to have us order the abstract please notify me upon receipt of this letter.

[¶ 6] An abstract of title was obtained by Wylie on June 14, 1999. The abstract revealed an ambiguity in recorded documents and Wylie determined TAG must secure certain quit claim deeds to remove any ambiguities of title. On June 21, 1999, TAG transferred the 21.82 acre plot to Grettum. With closing scheduled for June 28, 1999, Grettum delivered a letter to Wylie on June 25, 1999, stating he had received the relevant real estate and TAG determined it was free of any obligations under the option to purchase because Wylie had not timely purchased 20 acres on or before June 1, 1999. Grettum was willing to sell the 21.82 acres with the following conditions:

1. The purchase price for the sale of the 21.82 acres will be $187,500, less any amounts the City of Fargo may pay me for a road right of way;
2. E.W. Wylie Corporation must acknowledge, in writing and in a recordable format, that the Option to Purchase dated October 14, 1996, is no longer in force or effect, and that it has been terminated by its own provisions because of the failure of E.W. Wylie Corporation to make the minimum purchase of 20 acres by June 1,1999;
3. The closing be structured in such a manner that I can take advantage of a Section 1031 like-kind tax free exchange;
4. The closing take place on or before July 12, 1999, and I will not be required to do any corrective title work. E.W. Wylie Corporation must accept the property subject to all matters of record on June 2, 1999.

After receiving the letter, Wylie pressed to close on June 28, 1999, but refused to acknowledge the option to purchase had terminated. TAG relented and did not require Wylie to “acknowledge ... the Option to Purchase dated October 14, 1996, is no longer in force or effect, and that it has been terminated by its own provisions because of the failure of E.W. Wylie Corporation to make the minimum purchase of 20 acres by June 1, 1999.” The parties closed on the 21.82 acre sale, with both parties having contradictory views on the effect of the sale.

[¶ 7] In early July, Wylie sent letters to TAG and Grettum, notifying them of its intent to exercise its option and purchase the remaining option property. TAG responded that it considered itself free of any further obligations under the option agreement, because Wylie had not tendered the purchase money prior to June 1, 1999. Wylie instituted this lawsuit against TAG and Grettum for specific performance of the option to purchase, alleging breach of contract, estoppel, waiver and fraud. Wylie moved for summary judgment, arguing Wylie had complied with the terms of the Option Agreement and was entitled to specific performance of the option. The district court agreed, granting summary judgment in favor of Wylie.

[¶ 8] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Twichell v. Treitline, 1998 ND 10, ¶ 6, 574 N.W.2d 194. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment. Id.

I

A

[¶ 9] TAG argues Wylie failed to properly exercise the option agreement, pointing out Wylie’s exercise was not in precise compliance with the option agreement. TAG, citing Fries v. Fries, 470 N.W.2d 232 (N.D.1991), contends Wylie did not precisely comply with the option’s notice requirement or allow the abstract to be procured in the manner called for in the option.

[¶ 10] The exercise of an option, just like acceptance of an offer, must be unconditional. Mason v. Haakenson, 303 N.W.2d 557, 558 (N.D.1981). An optionee must exercise the option within the time and upon the terms and conditions provided in the agreement. Id. An attempt to exercise an option that deviates from the terms of the option acts as a rejection of the option and counteroffer. Id.

[¶ 11] In Fries, this Court held the exercise of an option failed because it deviated from the terms of the option agreement. After Jake and Mary Fries divorced, Jake received 240 acres of their farmland and Mary received 160 acres of farmland. Jake was also given an option to purchase all of Mary’s 160 acres. After being diagnosed with cancer, Jake assigned to his seven children his option to purchase Mary’s 160 acres. The children attempted to partially exercise the option by purchasing a six-sevenths interest of the property. A majority of this Court held exercise of the option failed because the agreement required full purchase of the entire quarter section. Since the children attempted to purchase only a six-sevenths interest in the quarter section, it was not in “exact compliance” with the option. Id. at 234.

[¶ 12] TAG asserts the option required a certified mailing to TAG, but the mailing went to James Grettum. Thus, Wylie did not precisely comply with the option agreement. This argument is without merit. It is undisputed Grettum is a general partner of TAG and under North Dakota law, notice to a partner is presumed notice to the partnership. N.D.C.C. § 45-13-02(6); see N.D.R.Civ.P. 4(d)(2)(D) (stating a partnership may be served by service to a partner). Considering TAG had no address provided in the option agreement, sending notice to Gret-tum was certainly reasonable.

[¶ 13] TAG also asserts Wylie was not in precise compliance with the provision that TAG would deliver a “continued abstract of title” to Wylie. TAG asserts Wylie was in possession of the abstract, but refused to look for it, requiring TAG to obtain a “new” abstract, rather than updating the “old” abstract. One portion of the option agreement refers to TAG paying for the “cost of continuing or preparing the abstract for WYLIE’s initial title examination,” adding ambiguity to the main premise TAG relies on. Nevertheless, on its face, the argument is still problematic. Nothing in the option agreement suggests exercise of the option was dependent upon the specifics of exactly how the abstract would be procured. Moreover, TAG has given no basis for there being a legal distinction between a “continued” abstract and a “new” abstract.

B

[¶ 14] TAG’S primary argument is that the option contract required Wylie to “purchase” 20 acres by June 1, 1999 and Wylie failed to comply with the option by not tendering purchase money before the deadline expired. TAG cites a dictionary definition of purchase, “to acquire by paying money,” to prove tender of money is necessary to effect a purchase. TAG also points out, in support of its argument, the option contains a “time is of the essence” clause. At the outset, we recognize the term “purchase” cannot narrowly be interpreted as always requiring tender of money. See State v. Jackson, 271 Ga. 5, 515 S.E.2d 386 (1999) (defining purchase as “ ‘to obtain by paying or promising to pay a price’ ”) (quoting Northeast Factor & Discount Co. v. Mortgage Investments, 107 Ga.App. 705, 131 S.E.2d 221 (1963); N.D.C.C. § 41-01-11(32) (broadly defining purchase as “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift, or any other voluntary transaction creating an interest in property”). We conclude the term “purchase” when construed in light of other provisions in the option agreement, does not require tender of money.

[¶ 15] A further discussion of option law resolves TAG’S argument. An option agreement is a contract where the owner of property (optionor or option-giver) gives another (optionee or option-holder) the right to buy the property at a fixed price within a specified time on agreed terms. Wessels v. Whetstone, 338 N.W.2d 830, 832 (N.D.1983). The owner does not sell the property, but sells to the other party the right, at the optionee’s election, to demand the conveyance in the manner specified. Id. Put another way, “an option supported by consideration is irrevocable for the life of the offer.” Estate of Jorstad, 447 N.W.2d 283, 285 (N.D.1989).

[¶ 16] Since an option to purchase is merely an irrevocable offer for a limited time, the question is whether Wylie accepted TAG’S offer, i.e., whether Wylie exercised the option to purchase. Contract law teaches acceptance comes in different forms, sometimes by performance and sometimes by a promise of performance, often depending upon what the offer specifies. See Restatement, Contracts 2d § 50 (1981) (concluding acceptance by performance requires at least part of the offer requests be performed or tendered, but acceptance by promise requires the offeree to complete every act essential to the making of the promise); 17A Am. Jur.2d Contracts, § 95 (1991) (stating “there are various modes of acceptance which are equally conclusive upon the parties”). For instance in a bilateral contract, both parties mutually promise to do a future act and the consideration of the promise of one party is a promise on the part of the other. 17A Am.Jur.2d Contracts § 5. Acceptance in a bilateral contract may be by a promise. See 77 Am.Jur.2d Vendor and Purchaser § 56 (1997) (stating “if the acceptance requested and furnished is a promise, the contract to sell is bilateral, binding each party to perform his promise”).

[¶ 17] Applying these basic rules to option law, we said in Northwestern Bell Tel. Co., v. Cowger, 303 N.W.2d 791, 795 (N.D.1981), “[w]here the exercise of the option to purchase does not provide for payment of the purchase price coincident with the optionee’s exercise of the option, the payment of the purchase price is merely an incident of performance of the bilateral contract created by the exercise of the option.” As we said above, an option must be exercised within the time and upon the terms and conditions provided in the agreement. Mason, 303 N.W.2d at 558.

[¶ 18] As TAG points out, the option agreement required Wylie to “purchase 20 acres on or before June 1, 1999.” However, under the heading, “Method of Exercise,” the option agreement provided how the option was to be exercised:

Exercise of this option to purchase shall be in writing either delivered to TAG in person or by certified mail prior to the expiration of the time granted by this option as hereinbefore set forth. WYLIE shall have the right to purchase the entire Property or as hereinafter specified portions of the Property (hereinafter referred to as Individual Parcel(s)). The notice(s) to exercise the option may hence pertain to a portion thereof and during the term of this Option Agreement. WYLIE may exercise the option as to successive portions of the Property. The notice to exercise this Option Agreement as to an Individual Parcel shall adequately identify the Individual Parcel to be purchased. Following said notice, the area identified will be precisely surveyed for a correct legal description and for determination of the amount of acreage that would determine the purchase price for said Individual Parcel.

The plain language of the option agreement states the option is to be exercised by giving notice to TAG adequately identifying the individual parcel to be purchased. Nothing in the contract requires Wylie to tender the purchase price in order to exercise the option. Thus, tender of the purchase price is an incident of performance, not a condition precedent to the exercise of the option. Because Wylie gave notice to TAG, specifically identifying an individual parcel to be purchased, prior to the June 1, 1999 deadline, it complied with the option to purchase and the fact it did not tender purchase money prior to June 1, 1999 is irrelevant. Although the option agreement has a “time is of the essence” provision, it does not change the option contract into one requiring tender of payment for exercise of the option.

II

[¶ 19] TAG asserts Wylie failed to exercise the option because its May 25, 1999 letter was only a conditional acceptance, because Wylie could “get out” of the contract if necessary. It is not clear whether TAG is attacking Wylie’s acceptance as conditional or whether TAG also challenges the written option agreement as conditional, but we will consider both arguments.

[¶ 20] As noted in section I, the exercise of an option must be unconditional. Mason, 303 N.W.2d at 558. An op-tionee must exercise the option within the time and upon the terms and conditions provided in the agreement. Id. An attempt to exercise an option that deviates from the terms of the option acts as a rejection of the option and counteroffer. Id. Wylie’s exercise of the option was unconditional. As the option specified, it gave notice to TAG, specifically identifying an individual parcel to be purchased, prior to the June 1, 1999 deadline. Wylie did not attempt to deviate from the terms of the agreement.

[¶ 21] TAG suggests Paragraph 13 of the option agreement, which allowed Wylie to void the agreement if several contingencies were not satisfied, gave Wylie the ability to void the agreement at its whim. Thus, they apparently contend, the agreement was conditional and therefore unenforceable. Paragraph 13 states in relevant part:

If the abstract of title fails to disclose the title of TAG to be good and marketable or if there are easements, restrictive covenants or mineral grants and reservations of record not acceptable to Buyer as permitted encumbrances, or if there are building zoning laws, ordinances or state and!or federal regulations that would hinder Buyer’s intended use of the Property, WYLIE, at WYLIE’s election, may declare this option and the exercise or partial exercise thereof null and void, or WYLIE may offer TAG a reasonable time (but not more than 120 days) in which to make the title good and marketable or the concerns as to the acceptability of easements, restrictive covenants or mineral grants and reservations of record and building and zoning laws, ordinances and state and federal regulations addressed to Buyer’s satisfaction. No objection can be raised, however, for matters stated to be acceptable in paragraph 19 below. If TAG agrees to attempt to cure the defects, TAG shall use due diligence in the effort to do so. If TAG does not undertake to make the title good and marketable and/or acceptable or is unable to make the title good and marketable and/or acceptable within such reasonable time as granted by WYLIE, it shall be at the option of WYLIE either to accept the title in its existing condition with no further obligation on the part of TAG to correct any defect or again have the right to declare its exercise of this Option Agreement void as to the Individual Parcel selected or to declare the entire Option Agreement void. Any Option Money paid or amount paid for Street Assessment theretofore shall be refunded to WYLIE should WYLIE select the latter option.

(emphasis added). Such “satisfaction” clauses are commonplace in contracts and do not cause the agreement to lack mutuality because, as shown below, an objective standard is nearly always employed in interpreting them. 13 Richard A. Lord Wil-liston on Contracts § 38.22 (4th ed.2000).

[¶ 22] One treatise says of such clauses: Since, however, such a promise is generally considered as requiring a performance which must be satisfactory to him or her in the exercise of honest judgment, such contracts have been almost universally upheld. Because of the duty to act in good faith, a party’s promise is not illusory; rather, the restraint that the obligation to act in good faith places on the promisor’s discretion furnishes good consideration for the parties’ agreement.

Id. at § 38.21. According to the Restatement:

When it is a condition of an obligor’s duty that he be satisfied with respect to the obligee’s performance or with respect to something else, and it is practicable to determine whether a reasonable person in the position of the obligor would be satisfied, an interpretation is preferred under which the condition occurs if such a reasonable person in the position of the obligor would be satisfied.

Restatement (Second) of Contracts § 228. American Jurisprudence states, “If a contract contains a promise by the vendor to sell and one by the purchaser to buy, the fact that it contains a conditional option to one of the parties to rescind does not destroy its mutuality.” 77 Am.Jur.2d Vendor and Purchaser § 31.

[¶ 23] This Court has recognized an objective standard is necessary in interpreting clauses similar to those in this case. In Industrial Com’n v. McKenzie County Nat, 518 N.W.2d 174 (N.D.1994) one party argued an insurance contract was unenforceable because the policy required “good and marketable title” and the failure to have an easement recorded rendered title unmarketable. Id. at 178. This Court said marketable title is “one that is free from reasonable doubt.” We further stated, “[w]e believe that reasonable persons could not differ that access to this property is free of reasonable doubt” and thus determined the contract should not be rescinded. Id.

[¶ 24] Although the option agreement had several contingencies, an objective standard would be employed to interpret these provisions, if necessary. Wylie had a good-faith duty to only raise reasonable objections. If it attempted to void the contract at its whim, TAG would have legal recourse to a court which would apply an objective standard to the contract terms. Wylie could not rescind the contract at its whim and the contract is not conditional or illusory.

[¶ 25] We affirm.

[¶ 26] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., RONALD L. HILDEN, D.J., concur.

[¶ 27] RONALD L. HILDEN, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 90
    In the Matter of the ESTATE OF R.R. ROBINSON a/k/a Robert R. Robinson, Deceased. Patricia K. Huffman, and Bette Ann Violet, Appellants and Cross-Appellees, v. Bonnie J. Maehlmann, Personal Representative of the Estate of R.R. Robinson a/k/a Robert R. Robinson, and Bonnie J. Maehlmann, individually, Appellees and Cross-Appellants.
    Nos. 990319, 990322.
    Supreme Court of North Dakota.
    April 28, 2000.

      Arlen M. Ruff, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for appellant and cross-appellee, Bette Ann Violet.
    Gregory C. Larson and Courtney McDonald Koebele (appeared), Wheeler Wolf, Bismarck, N.D., for appellant and cross-appellee, Patricia K. Huffman.
    Charles T. Edin, Charles T. Edin, P.C. Law Office, Bismarck, N.D., and Morris A. Tschider (appeared), Tschider & Smith, Bismarck, N.D., for appellees and cross-appellants.
   MARING, Justice.

[¶ 1] Patricia K. Huffman and Bette Ann Violet appeal from a trial court memorandum opinion, order, and judgment in favor of Bonnie J. Maehlmann, awarding her full ownership of a bank account in which she had been a joint tenant. Maehlmann cross-appeals the trial court’s conclusion that the account’s original owner Robert R. Robinson, had previously created a valid joint bank account with Huffman. We affirm the trial court’s judgment as to Maehlmann’s ownership of the account. That conclusion is dispositive of the appeal, thus we do not reach the issue raised in Maehlmann’s cross-appeal. See Wacker Oil, Inc. v. LoneTree Energy, Inc. 459 N.W.2d 381, 382 (N.D.1990).

I.

[¶ 2] Robinson was married to Esther Robinson, Huffman’s mother, from 1960 until Esther’s death in 1995. Robinson had held a bank account at Farmers Security Bank of Washburn in joint tenancy with his wife during her life and was the account’s sole owner after her death. In March of 1996, Robinson wrote to Huffman, stating that he was putting her name as “Joint tenant in the banks.” That same month, he executed documents at the bank listing Huffman as a joint tenant. The bank instructed Robinson to have Huffman sign a signature card; however, Robinson never did so. After Robinson’s death, his friend and neighbor Mike Nelson, who had helped Robinson with his financial affairs and visited him regularly, found the signature card among papers Robinson had given him. The bank sent out at least six statements addressed to “R R Robinson or Patricia K Huffman.”

[¶ 3] In 1997, Maehlmann, who was Robinson’s niece, began coming to visit and to care for him. Maehlmann visited Robinson four times; during these visits, Maehl-mann took care of Robinson’s personal needs, cleaned his home and read his mail to him.

[¶ 4] On July 7, 1997, Robinson and Maehlmann went to the bank, and Robinson changed the account into a joint tenancy with Maehlmann. A bank employee, Glenda Brown, helped Robinson with this transaction, which took approximately 20-30 minutes. Maehlmann asked that the bank send statements to her, and the bank complied, even after Robinson told the bank not to send statements to Maehl-mann. Maehlmann wrote several checks on the account, including one to herself for $8,000, even though she knew Robinson would not approve. In November of 1997, Maehlmann used $313,000 from the account to purchase a certificate of deposit, doing so without Robinson’s permission.

[¶ 5] During the last year of his life, Robinson suffered a variety of medical problems and was hospitalized for several weeks before his death on December 16, 1997. A few months before Robinson died, Maehlmann found a typewritten document, which appeared to be an unwitnessed will, leaving Robinson’s estate to Nelson and Huffman in equal shares. Maehlmann did not immediately tell Robinson she found the document, but instead put it in her purse. A day or two later, Maehlmann met with an attorney and asked him to draw up a will for Robinson. She also contacted two other attorneys to ask if they would make a will for Robinson. She eventually showed the document to Robinson when he was in the hospital, shortly before his death, and asked him if he wanted his estate distributed according to that document. Maehlmann says Robinson tore up the document and said it meant nothing to him; however, she saved the pieces of this document. Maehlmann wrote to Violet, Robinson’s other niece, instructing her not to tell anyone about the purported will because it would just cause problems and foster litigation. Maehl-mann told Violet that when Nelson asked her whether a will existed, she simply said no.

[¶ 6] After Robinson’s death, Maehl-mann claimed the funds in the bank account as a joint tenant with right of sur-vivorship and sought appointment as the personal representative for the estate. Huffman and Nelson objected to her appointment. Huffman also cross-claimed against Maehlmann, arguing Maehlmann was in a relationship of trust and confidence with Robinson and Maehlmann exerted undue influence over Robinson to get him to change ownership of the bank account.

[¶ 7] Following a trial, the trial court issued a memorandum opinion in which it concluded Robinson created a valid joint tenancy account with Huffman. Though the trial court concluded Maehlmann was in a relationship of trust and confidence with Robinson, giving rise to a presumption of undue influence, the trial court also determined Maehlmann rebutted the presumption. The trial court issued its findings of fact, conclusions of law and order, and the judgment in accordance with its memorandum opinion.

II.

[¶ 8] Huffman and Violet claim the trial court’s finding that Maehlmann rebutted the presumption of undue influence is clearly erroneous. We disagree.

A.

[¶ 9] Section 59-01-08, N.D.C.C., states “[ejveryone who voluntarily assumes a relation of personal confidence with another is deemed a trustee.... ” Finding a confidential relationship under N.D.C.C. § 59-01-08 triggers a presumption of undue influence under N.D.C.C. § 59-01-16. Matter of Estate of Dinnetz, 532 N.W.2d 672, 674 (1995). Under that section, transactions between the trustee and the trustee’s beneficiary, in which the trustee gains an advantage, are presumed to have been made without sufficient consideration by the trustee’s beneficiary and under undue influence. N.D.C.C. § 59-01-16. This presumption applies in cases in which one in a relation of personal confidence makes changes to or acquires an interest in bank accounts. Estate of Dinnetz, at 673-74; see also Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, ¶24, 575 N.W.2d 425. Once the presumption under N.D.C.C. § 59-01-16 has been established, the trustee bears the burden to present evidence to rebut the presumption. Estate of Dinnetz, at 675.

[¶ 10] In cases involving will contests, we have defined undue influence as the substitution of the purpose and intent of the one exercising influence for the purpose and intent of the testator. Matter of Estate of Herr, 460 N.W.2d 699, 702 (N.D.1990). This Court has stated that undue influence is characterized by four elements: the testator is subject to such influence; the opportunity to exercise undue influence existed; there was a disposition to exercise such influence; and the result appears to be the effect of such influence. Matter of Estate of Mickelson, 477 N.W.2d 247, 250 (N.D.1991). Undue influence is seldom exercised openly; because direct evidence is rarely available, undue influence may be proven by circumstantial evidence. See Estate of Davis v. Cook, 9 S.W.3d 288, 293 (Tex.App.1999); Matter of Estate of Bayer, 574 N.W.2d 667, 671 (Iowa 1998); Redman v. Watch Tower Bible and Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 630 N.E.2d 676, 679 (Ohio 1994); In re Estate of Larson, 394 N.W.2d 617, 620 (Minn.Ct.App.1986).

[¶ 11] The determination of whether undue influence exists is a question of fact. Estate of Mickelson, 477 N.W.2d at 250. Under N.D.R.Civ.P. 52(a), this Court will not set aside a trial court’s finding of fact unless it is clearly erroneous. Matter of Estate of Nelson, 553 N.W.2d 771, 773 (N.D.1996). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, this Court is left with a definite and firm conviction a mistake has been made. Id. If reasonable evidence in the record supports the trial court’s findings, this Court will not retry the case and substitute findings of fact it might have made for those made by the trial court. Id. at 774.

B.

[¶ 12] The parties presented extensive testimony from a number of witnesses relating to all four elements of undue influence. First, the trial court heard evidence Maehlmann had an opportunity to influence Robinson. Nelson testified when Maehlmann visited Robinson, she controlled Robinson’s schedule and activities. Before and between Maehlmann’s visits, Nelson saw Robinson on almost a daily basis, but when Maehlmann came to visit, Nelson saw Robinson far less often and did not feel welcome to visit him.

[¶ 13] Second, the trial court heard evidence Robinson was susceptible to undue influence during the last year of his life. His letters to Huffman indicate he was lonely, and Huffman testified Robinson once cried when she and her husband had to leave him. Huffman also testified Robinson became confused on a trip to visit his wife’s grave and could not find her graves-ite. Medical records indicated Robinson complained of loneliness and suffered from short term memory loss, dementia, and depression. Other witnesses, however, testified Robinson was capable of making his own decisions. Nelson testified he helped Robinson with his finances and stated he believed Robinson’s ability to direct his affairs diminished during the last year of his life; however, Nelson also admitted everyone who helped Robinson “followed his direction and did what he told them to do.” In addition, Brown testified that during her encounter with Robinson at the bank he seemed decisive. According to Brown, Robinson directed the meeting during which he changed ownership of the bank account and Maehlmann simply sat quietly. Finally, Maehlmann testified Robinson directed his own financial affairs both at home during her visits and during the meeting at the bank when he changed the account.

[¶ 14] Third, whether Maehlmann had a disposition to exercise undue influence was also fully before the trial court. Nelson testified on the day he first met Maehl-mann she surprised him by commenting on the disposition of her uncle’s estate saying, “I suppose he is leaving all his money to Boys Town?” Maehlmann acknowledged she was disinherited in the will of another uncle from whom she had expected to receive property and that this event hurt her. Maehlmann testified upon learning Robinson held his bank account jointly with Huffman, she considered discontinuing her visits to Robinson because she and her husband “weren’t included in anything.” Maehlmann admitted that after she found the purported will in Robinson’s home she contacted three attorneys because she wanted Robinson to make a will “to ensure that I get the funds that he said I was going to have.” Maehlmann also admitted confronting Robinson with the will while he was in the hospital and saying to him that she was “surprised that he would ... ask me to come take care of him, and then just leave me entirely out of everything.” Maehlmann further stated she told Robinson she felt she’d been used. In contrast, the trial court heard Maehl-mann’s testimony that during her visits she simply did whatever Robinson wanted regarding his financial affairs. Maehl-mann also testified she was very surprised when Robinson said he wanted to put her name on his bank account. Though Brown did not corroborate, Maehlmann testified that, during the meeting at the bank, she attempted to persuade Robinson to leave Huffman’s name on the account and suggested she and Huffman could share the account.

[¶ 15] Finally, the trial court heard evidence regarding whether the change in the account was the result of undue influence. Witnesses testified Robinson repeatedly said he wanted to leave money to Huffman, and that Robinson and Huffman had a good relationship, such that Robinson told others Huffman always “treated him like a daughter.” Huffman and her husband contacted Robinson frequently, and Robinson signed letters to Huffman and her husband, “Love, Robby.” Nelson testified Robinson repeatedly stated he intended the money in the bank account to go to Huffman. According to Nelson, Robinson expressed this intent until he died, even after he changed the ownership of the account. Nelson said Robinson told him Huffman should get the money because she provided care to Esther during the time before Esther’s death. Finally, Huffman asserted the purported will leaving half of Robinson’s estate to her was evidence of Robinson’s love for her and his intent that she take from his estate. Maehlmann testified to the contrary regarding Robinson’s relationship with Huffman. She testified her family believed Robinson never liked Huffman and had delayed his marriage to Esther because he didn’t want Huffman around. She also listed four, more recent reasons Robinson disliked Huffman: (1) Robinson believed Huffman drank too much; (2) Huffman did not contact Robinson; (3) Huffman and her mother removed furniture from Robinson’s home when Esther moved to Iowa shortly before her death; and (4) Robinson believed Huffman did not adequately supervise her children when they came to visit him. Maehlmann testified that while changing the account at the bank, Robinson stated he didn’t care for Huffman and that when she confronted Robinson with his typewritten will at the hospital, Robinson tore up the document saying it meant nothing to him.

C.

[¶ 16] In. cases involving will contests, other states have considered a variety of “suspicious circumstances” as supportive of a finding of undue influence. One often mentioned factor is the active participation of the beneficiary in securing the preparation of, or a change in, a will. See, e.g., Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky.1998); Vancil v. Carpenter, 935 S.W.2d 42, 44 (Mo.Ct.App.1996); Estate of Gerard v. Gerard, 911 P.2d 266, 270 (Okla.1995); Van Maiter v. Van Matter, 130 Or.App. 500, 882 P.2d 134, 137 (1994); In re Estate of Julian, 227 Ill.App.3d 369, 169 Ill.Dec. 552, 592 N.E.2d 39, 44 (1991); In re Estate of Schroeder, 441 N.W.2d 527, 532 (Minn.Ct.App.1989); Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn.Ct.App.1989); In re Estate of McCauley, 101 Ariz. 8, 415 P.2d 431, 433-34 (Ariz.1966); In re Lingenfelter’s Estate, 38 Cal.2d 571, 241 P.2d 990, 999 (1952). In addition, courts in other states have considered the following other factors relevant to a determination that undue influence existed: whether the testator received independent and disinterested advice regarding the will (Estate of Gerard, 911 P.2d at 270; Van Matter, 882 P.2d at 137; Mitchell, 779 S.W.2d at 388); whether there was an unexplained change in the testator’s attitude toward those for whom she previously expressed affection (Van Matter, 882 P.2d at 137); disinheritance of those the testator probably would have remembered in her will (Estate of Schroeder, 441 N.W.2d at 532); whether a recently developed and relatively short period of close relationship existed between the testator and the beneficiary (Bye, 975 S.W.2d at 457); whether the disposition under the will was contrary to intentions the testator expressed, both before and after executing the will (Lingenfelter’s Estate, 241 P.2d at 999; see also Jarvis v. Tonkin, 238 Va. 115, 380 S.E.2d 900, 903 (1989); Mitchell, 779 S.W.2d at 388; Estate of McCauley, 415 P.2d at 434); and whether there was secrecy regarding the will’s existence (Mitchell, 779 S.W.2d at 388).

[¶ 17] Though Huffman and Violet presented substantial evidence of suspicious behavior on Maehlmann’s part, other witnesses testified to the contrary, and we have repeatedly held the trial court is in the best position to weigh conflicting evidence and judge the credibility of witnesses. Estate of Nelson, 553 N.W.2d at 774. The trial court found Robinson was a strong-willed, independent and competent man on the day he added Maehlmann’s name to the bank account. The record contains evidence which supports this finding. At the bank, Robinson directed the 20 to 30 minute long meeting, while Maehl-mann sat quietly in the back, and Brown characterized him as decisive. Brown also testified that, upon Robinson’s request, she explained the survivorship feature of the account to Robinson during that meeting and he said he understood her. Maehl-mann testified she complied with Robinson’s instructions regarding his affairs. Nelson also acknowledged those helping Robinson did as they were told. Based on this evidence, the trial court found Maehl-mann successfully rebutted the presumption of undue influence. We conclude, reviewing the record before us, that the trial court’s findings are supported by reasonable evidence and are not clearly erroneous. The judgment of the trial court is affirmed.

[¶ 18] WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ„ DONOVAN J. FOUGHTY, D. J., CAROL RONNING KAPSNER, Acting C.J., concur.

[¶ 19] DONOVAN J. FOUGHTY, D.J., sitting in place of VANDE WALLE, C.J., disqualified.


author: KONENKAMP, Justice.

text:
    2000 SD 55
    Keith D. CARPENTER and Sherri Carpenter, Husband and Wife, Plaintiffs and Appellees, v. CITY OF BELLE FOURCHE, A Municipal Corporation and John J. Wainman, Jointly and Severally, Defendants and Appellants.
    Nos. 20901, 20923.
    Supreme Court of South Dakota.
    Argued Feb. 16, 2000.
    Decided April 26, 2000.

      Edward C. Carpenter and Gregory Strommen of Costello, Porter, Hill, Heist-erkamp, Bushnell, & Carpenter, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] While speeding to approach and “pace” two motorcycles, a city police officer struck and injured a motorist who was turning at an intersection. Following a trial for negligence against both the city and its officer, the jury found for the motorist. The defendants appeal, contending the motorist was contributorily negligent as a matter of law and the trial court erred in denying their motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial. We affirm, as the issues of negligence were properly left for the jury.

Facts

[¶ 2.] This two-car automobile collision occurred on March 26, 1993, in Belle Fourche, South Dakota. We relate the incident in a light most favorable to the verdict. Alberts v. Mutual Serv. Cas. Ins. Co., 80 S.D. 303, 123 N.W.2d 96, 99 (1963). At 6:40 p.m., shortly after sundown, Belle Fourche police officer John Wainman turned his patrol car off Ziebach Street onto Highway 85, and drove north toward town. In this area, Highway 85 has four lanes, two northbound and two southbound. Where Wainman entered, the highway curves slightly. After turning onto the highway, the officer heard what sounded like two motorcycles drag racing two blocks ahead of him. He turned into the outside (curbside) lane and passed a light-colored Ford pickup traveling north on the inside lane. He accelerated attempting to get near enough to “pace” the motorcycles. At the time, the posted speed limit was 45 m.p.h. Wainman’s speed exceeded 60 m.p.h. At no time did he activate his siren or emérgency lights.

[¶ 3.] Meanwhile, Keith Carpenter drove west on Summit Street, approaching the intersection of Highway 85 north of where Wainman had entered the highway. Tammy Halvorsen, the owner of the car Keith was driving, was a passenger. Keith had been repairing the wiring in Halvorsen’s car, a 1981 Chevrolet Chevette, and was taking it to his home to complete the work. Keith’s wife, Sherri, was driving the Carpenters’ car directly behind them. When Keith reached the intersection, he brought the car to a complete stop, but the evidence conflicts on whether he checked for traffic before pulling into the intersection. Keith testified during his deposition taken two years before trial that he had no recollection of looking either right or left before he pulled out, but that he had waited at the intersection for traffic to go by. At trial, Keith testified that he looked to the right, to the left, and then back to the right before proceeding. Sherri also testified at trial that as she sat in the ear behind him she saw Keith look in both directions.

[¶ 4.] Keith began turning left onto Highway 85, headed toward the southbound lanes. Officer Wainman was approximately 500 feet away. When he spotted Keith pulling out, he attempted to avoid a collision by braking and swerving left into the inside lane, but in vain. Wain-man’s patrol car skidded 100 feet, then slammed into the driver’s side door of the Chevette, just as its front wheels crossed the centerline of the four-lane highway. The Chevette came to rest in the middle of the highway, 100 feet north of the point of impact. The patrol car slid off the road on the southbound side, became airborne, and then landed in the ditch. Both cars were destroyed. Keith was severely injured. He was transported by air ambulance to a trauma unit in Billings, Montana.

[¶ 5.] The Carpenters sued the City of Belle Fourche and its employee, Officer Wainman. In turn, these defendants sued the two motorcyclists for contribution, but later dismissed the claim with prejudice. The circuit court denied the defendants’ motions for summary judgment. Following a weeklong trial, a jury returned a verdict for the Carpenters, awarding Keith $450,000, and Sherri $22,000. Motions for judgment n.o.v. and new trial were denied. On appeal, the defendants assert that the trial court erred in denying (1) their motion for summary judgment, (2) their motions for mistrial and for a new trial based on the use of an unsworn statement during trial, (8) their motions for a mistrial and for a new trial based on a reference made to their dismissal of the motorcyclists, (4) their motions for directed verdict and for a judgment n.o.v. on the issue of liability, and (5) their proposed jury instructions. For clarity, we combine in Part A below the contributory negligence arguments in Issues 1 and 4.

Standard of Review

[¶ 6.] “Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied.” Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. When making this analysis, we view the evidence in the light most favorable to the nonmoving party and resolve reasonable doubts against the moving party. Satellite Cable Services, Inc. v. Northern Elec. Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. As we take an independent review of the record, we are not bound by the trial judge’s factual assessments in granting summary judgment. Fritzel v. Roy Johnson Constr., 1999 SD 59, ¶ 7, 594 N.W.2d 336, 338 (citing Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609).

[¶ 7.] A new trial motion rests within sound judicial discretion of the court, and we will not disturb the judge’s decision absent an abuse of discretion. Schmidt v. Royer, 1998 SD 5, ¶ 9, 574 N.W.2d 618, 621 (citing Tunender v. Minnaert, 1997 SD 62, ¶9, 563 N.W.2d 849, 851) (other citation omitted). We presume the correctness of evidentiary rulings. State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129 (citation omitted). In reviewing these rulings, error must be shown to be an abuse of discretion, and must be prejudicial to the appellant. State ex rel. Dep’t of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263. “The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). “A jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law....’” LDL Cattle Co. v. Guetter, 1996 SD 22, ¶ 13, 544 N.W.2d 523, 526-27 (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)); Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980) (citation omitted).

Analysis and Decision

A. Contributory Negligence as a Matter of Law

[¶ 8.] Under the “through highway” or “boulevard” rule, as it is sometimes called, a driver approaching an intersection from an unfavored road must yield the right-of-way to drivers on the “through highway” (SDCL 32-29-2) already in or approaching the intersection. See Davis v. Knippling, 1998 SD 31, ¶ 7, 576 N.W.2d 525, 527. Correspondingly, our stop sign law provides that after stopping, a driver “may not proceed into the intersection until certain that such intersecting roadway is free from oncoming traffic which may affect safe passage.” SDCL 32-29-2.1. The defendants contend in both Issues 1 and 4 that by summary judgment, directed verdict, or judgment n.o.v., the trial court should have found Keith Carpenter con-tributorily negligent more than slight, thus barring him from recovery. Such rulings are ordinarily unobtainable in negligence actions, for the standard of reasonableness must often be applied to conflicting testimony. Only when the evidence leads but to one conclusion can negligence be found as a matter of law. Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991) (citations omitted). Most often, questions of contributory negligence in in-tersectional accidents are for the jury, especially when reasonable persons might fairly reach different conclusions. Blash-field Automobile Law and Practice § 114.81 (3rd ed. 1965).

[¶ 9.] Contributory negligence issues have been taken from the jury when the evidence appeared indisputable. In McKiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W. 445 (1941), this Court barred recovery to an unfavored driver in an intersection collision because the driver was contributorily negligent as a matter of law. McKiver, after proceeding past a stop sign, was struck by Rupp, who was speeding on a through road. “Rupp was negligent in approaching the intersection at an excessive speed, but if [McKiver] was negligent in failing to stop or in driving into the intersection without heeding the approach of the car driven by defendant Rupp, such negligence without doubt proximately contributed to the collision and there can be no recovery.” Id. at 447. That Rupp was speeding made no difference in the analysis: “It is manifest that [McKiver] either did not look or if he looked and observed what he was bound to see he would have observed the approaching car and would have avoided the collision.” Id. at 448. The plaintiffs verdict was reversed and the action ordered dismissed.

[¶ 10.] Four years after McKiver, this Court again ruled as a matter of law that the unfavored driver was guilty of contributory negligence more than slight because it was that driver’s “duty to stop and to make, before and after entering the intersection, observations and to adapt his movements to accord with his own safety.” Kundert v. B.F. Goodrich Co., 70 S.D. 464, 18 N.W.2d 786, 787 (1945). To the Court in Kundert, it was “apparent that [the unfavored driver] did not look at all or that he did not do so effectively.” Id.

[¶ 11.] As McKiver and Kun-dert illustrate, an unfavored driver’s duty to stop and yield the right-of-way is unqualified. Indeed, we have repeatedly held that a motorist who enters an intersection from an unfavored road and fails to yield to a favored vehicle under the rules of the road is guilty of negligence as a matter of law. Robertson v. Hennrich, 72 S.D. 37, 29 N.W.2d 329 (1947); Stacey v. Patzloff, 67 S.D. 503, 295 N.W. 287 (1940); Anderson v. Huntwork, 66 S.D. 411, 284 N.W. 775 (1939); see also Vlach v. Wyman, 78 S.D. 504, 104 N.W.2d 817, 819 (1960). The unfavored driver’s duty continues while traversing the intersection and until the driver becomes part of the flow of favored traffic or successfully crosses the intersection. Kundert, 18 N.W.2d at 787; Rowan v. Becker, 73 S.D. 273, 41 N.W.2d 836, 839 (1950). Put another way, an unfavored driver may not safely advance until favored motorists are out of the zone of danger. SDCL 32-29-2.1 (roadway must be “free from oncoming traffic which may affect safe passage”).

[¶ 12.] On the other hand, the right of way on a through highway is not absolute. Favored drivers, though they have the primary right of way, must use reasonable care with due regard for the safety of others. Burmeister v. Young-strom, 81 S.D. 578, 139 N.W.2d 226, 229 (1965); Grosz v. Groth, 78 S.D. 379, 102 N.W.2d 834, 836 (1960); Alborn v. Arms, 74 S.D. 277, 52 N.W.2d 101, 104 (1952) (question for jury whether plaintiff on through highway was contributorily negligent); Robertson v. Hennrich, 72 S.D. 37, 29 N.W.2d 329, 331 (1947). When favored drivers know the road is protected by a stop sign at an intersection with another road, they may reasonably assume until seeing otherwise that motorists approaching the intersection will stop, look, and yield the right-of-way to drivers on the favored road. Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20, 24 (1962); Burmeister, 81 S.D. 578, 139 N.W.2d at 229. That drivers have the right-of-way will not relieve them of the duty to look for cars approaching on an intersecting road. Grosz, 102 N.W.2d at 836.

[¶ 13.] Exceeding the speed limit at an intersection will not automatically forfeit the right-of-way. Cf. Sabo v. Beatty, 39 Mich.App. 560, 197 N.W.2d 871, 873 (1972); Blashfield, supra, § 114.87. A favored driver’s speed, however, is a factor to be considered in an intersectional accident; furthermore, speeding through an intersection has been held to be contributory negligence more than slight. Grosz, 102 N.W.2d at 836 (speeding driver could not blindly assume that cross traffic would stop and yield right of way). Id. But whether this negligence is “a substantial factor in bringing about the harm” remains a jury question. Id.

[¶ 14.] An intersectional collision is not proof by itself that fault lies with the unfavored driver. As we have often recognized, the mere fact that an accident happened creates no inference that it was caused by someone’s negligence. Del Vecchio v. Lund, 298 N.W.2d 474, 476-77 (S.D.1980) (citations omitted). In most circumstances, the question of contributory negligence for those entering a preferential highway protected by a stop sign remains for the trier of fact. Courtrooms are not laboratories, where traffic violations are validated invariably as if they were rules of physics. To learn the facts, we often depend on the fallible memories and faulty perceptions of witnesses. Drivers are not required to notice every vehicle within the range of vision, but only those within the radius of danger. Jershin v. Becker, 217 Neb. 645, 351 N.W.2d 48, 52 (1984) (citation omitted). “Before a verdict can be properly directed in such a case the position of the oncoming vehicle must be definitely located in a favored position, that is, that it was within that radius which denotes the limit of danger .... ” Id. (citation omitted).

[¶ 15.] We perceive a distinction between unfavored drivers who do not look or look but fail to see, and those drivers who look before entering an intersection, but misgauge the safety of the maneuver because they believe they have enough time to cross or they are misled about the speed or distance of an approaching vehicle. See McKiver, 297 N.W. at 448. The distinction is simply this: looking and seeing what is there to be seen is a matter of duty; looking and proceeding in the belief that one can safely do so is a matter of judgment. See Ford v. Hochstetter, 85 S.D. 4, 176 N.W.2d 501, 504 (1970); Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337, 342 (1965); Campbell v. Jackson, 65 S.D. 154, 272 N.W. 293, 296 (1937) (citing Glynn v. Krippner, 60 F.2d 406, 409 (8th Cir.1932)); Descombaz v. Klock, 58 S.D. 173, 235 N.W. 502, 504 (1931) (if one looks, it is implied that one sees what is there to be seen). Factors that might mask an approaching vehicle’s speed or distance thus leading a prudent motorist to misjudge the timing of its arrival might include such things as weather conditions, distance, topography, angle of observation, and myriad other circumstances.

[¶ 16.] From the host of cases this Court has reviewed in the last century, we encapsulate the following rule: the mere occurrence of an accident in a protected intersection will not of itself establish negligence against the unfavored driver. Whether one looked and failed to see a vehicle within the zone of danger is a jury question, except in those rare instances when the evidence is so definite that reasonable minds could not differ. Before a court may declare contributory negligence more than slight as a matter of law, the location of the oncoming vehicle must have been in an obviously favored position within the radius of danger; otherwise, the question is one for the jury.

[¶ 17.] Although Keith Carpenter testified in his deposition that he did not remember clearly if he looked both ways before pulling away from the stop sign, he also testified that he waited at the stop sign for traffic from both directions. From that the jury could have inferred that he looked. At trial, he told the jury he did look both ways. The jurors must have believed him despite his shift in recollection. Tammy Halverson’s testimony that she looked and did not see Officer Wainman’s car approaching was also a factor for consideration. The Carpenters’ expert witness testified that Wainman was going over 60 m.p.h. in the 45 m.p.h. zone just before the collision. The jury heard expert opinion on the difficulty of assessing speed and distance of oncoming vehicles. Jurors might have concluded that Keith looked down the road, but erroneously thought there was time to cross the highway. Officer Wainman’s excessive speed may have contributed to Keith’s misjudgment. See Krcmar v. Reichert, 26 Wis.2d 263, 131 N.W.2d 916, 918 (1965). Thus there was sufficient evidence for the jury to conclude that Wainraan was negligent as well, and it was for the jurors to evaluate the facts and weigh the relative negligence of Officer Wainman and Keith Carpenter. “If under all of the evidence, both parties could be found to be negligent, the comparative negligence of the parties is a question of fact which is within the province of the' jury.” Estate of He Crow v. Jensen, 494 N.W.2d 186, 190 (S.D.1992) (citing Thomas v. St. Mary’s Roman Catholic Church, 283 N.W.2d 254 (S.D.1979)). Giving the Carpenters all reasonable inferences and viewing the facts in the light most favorable to them, there were factual issues making a ruling as a matter of law improper.

B. Use of Unsworn Statement

[¶ 18.] Sherri Carpenter testified on direct examination that as Keith began to pull away from the stop sign, she did not see any automobiles other than a white pickup approaching the intersection from the south. Her counsel then asked her if she had given a statement to the police the evening of the accident. At this point, the matter was discussed with the court outside the hearing of the jury. When questioning before the jury continued, the Carpenters’ counsel was allowed to show Sherri a copy of the unsworn statement she had given to law enforcement shortly after the accident occurred. Sherri was then asked again to tell the jury, without reading the statement, whether she had seen any other vehicles coming north on the road. She said that she had seen Officer Wainman’s patrol car going fast and passing the pickup when it was still about one quarter of a mile away.

[¶ 19.] The defendants argue that her statement was not admissible as a memorandum of past recollection recorded under SDCL 19-16-9 (Rule 803(5)), that it could not be used to refresh her memory under SDCL 19-14-21 (Rule 612(a)) because her recollection was initially clear, and finally that the unsworn statement could not be used to impeach Sherri because doing so would simply be a subterfuge for bringing in the inadmissible statement. Her testimony after refreshing her recollection was consistent with the testimony she gave in her deposition.

[¶ 20.] The document shown to Sherri was neither entered into evidence nor read to the jury. It was used only to trigger Sherri’s memory, calling into play SDCL 19-14-21 (Rule 612(a)). SDCL §§ 19-14-21 through 19-14-23 provide for the method of refreshing witness recollection called present recollection refreshed. John W. Larson, South Dakota Evidence § 612.1 at 438 (1991). This “involves the use of anything that will actually trigger the witness’ memory so that the witness may thereafter actually testify from memory. Anything that will cause the memory to be regained, ... is permitted. This includes, of course, showing the witness a particular writing, ...” Id. Counsel laid the minimal foundation for the testimony: Sherri said she did not have a clear recollection of what happened, that she had given a statement at the time of the accident, and that this writing would help refresh her recollection. She read the statement silently to herself, and then testified that she had seen the patrol car some distance back from the intersection. See id. at 439. Sherri was cross-examined on this testimony as well.

[¶ 21.] The defendants argue that this testimony had a prejudicial impact, preventing them from receiving a fair trial. “Prejudicial error is that error without which the jury would have probably returned a different verdict.” Shaull v. Hart, 327 N.W.2d 50, 53 (S.D.1982) (citing Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977)). Even without this testimony, however, the jury had other evidence on the location of Officer Wainman’s vehicle when Keith pulled away from the stop sign. Sherri’s testimony was partly corroborated by the Carpenters’ expert witness, who testified that the patrol car was 500 feet from the intersection when Keith began to pull away from the stop sign. We find no prejudicial error or abuse of discretion here. See Watkins v. Ebach, 291 N.W.2d 765, 768 (S.D.1980); Alberts, 80 S.D. 303, 123 N.W.2d at 103. The trial court properly denied the motions for a mistrial and a new trial.

C. Referring to Dismissal of Third-Party Defendants

[¶ 22.] During Officer Wainman’s cross-examination at trial, the Carpenters’ counsel asked him whether he was trying to blame the accident on the motorcyclists he attempted to “pace” although they had been dismissed from the action. The judge admonished the jurors to disregard the remark, and during a hearing out of the jurors’ presence the judge offered to again admonish them, stating that he found the remark on the dismissal of the third-party defendants “highly improper.” Nonetheless, the court denied defense motions for a mistrial and a new trial. The defendants argue now that the question, though not answered, was prejudicial. They claim that the cautionary instruction given by the judge did not “cure” the error.

[¶ 23.] Our rule on harmless error is found in SDCL 15-6-61:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

“Prejudicial error is error which in all probability produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” Kjerstad v. Ravellette Publications Inc., 517 N.W.2d 419, 426 (S.D.1994) (citing State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)). The defendants claim that the “prejudicial impact of this ‘question’ is clear”; that is, it was done so that the jury would draw an improper inference that either Wainman’s attorney felt the motorcyclists were not to blame for the accident, or that the motorcyclists were not in fact to blame for the accident and Wainman alone caused it.

[¶ 24.] Unlike the situation in Kjerstad, 517 N.W.2d at 426, here there had been no prior motion or ruling on this line of questioning. The question was also dissimilar from the comment made by counsel during closing arguments in Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989), where we said that, had one been requested, the trial court would have been justified in granting a mistrial. In Anderson, we characterized as “unprofessional, offensive, and exceeding] the proper bounds of trial advocacy” the statement that the United States' is an “over-lawyered litigious, sue-happy country,” and that “there is a phenomenon growing up that is know (sic) here as the litigation industry.” Id. Here, the jury was admonished to disregard the question. “Under our settled law, we assume the jury accepted the admonition.” State v. Stetter, 513 N.W.2d 87, 90 (S.D.1994) (quoting Anderson, 441 N.W.2d at 677). Further, the defendants have not shown how the fact that the question was asked affected their substantial rights or affected the jury’s verdict. We conclude that the trial court did not abuse its discretion. See id. (citing State v. Kidd, 286 N.W.2d 120, 121-22 (S.D.1979)).

D. Trial Testimony Contradicting Deposition

[¶ 25.] The defendants next contend it was error for the trial court to deny their motions for directed verdict and for judgment notwithstanding the verdict when Keith Carpenter’s testimony at trial was contrary to his deposition testimony concerning whether he looked left before he pulled away from the stop sign. They argue that in his deposition, Keith testified that he did not have a specific recollection of looking left before turning onto the highway, but at trial he recalled that he had looked in both directions but did not remember whether he saw any vehicles on the road. As the law disallows a change in testimony to defeat a motion for summary judgment, the defendants argue, so too should it disallow a change in testimony to defeat a directed verdict. The defendants asked the trial court to apply by analogy Guilford v. Northwestern Public Service, 1998 SD 71, ¶ 12, 581 N.W.2d 178, 181 (party against whom summary judgment is sought cannot create issues of material fact by contradicting own earlier sworn testimony) and Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 501 (S.D.1990) (party cannot contradict one’s own prior testimony in an attempt to defeat summary judgment). The defendants believe that the rule established -in these cases entitled them to a directed verdict or a judgment notwithstanding the verdict based on the state of the record at the time their summary judgment motion was made. On review of a denial of a directed verdict, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of any reasonable inferences. Bridge v. Karl’s Inc., 538 N.W.2d 521, 523 (S.D.1995) (quoting Westover v. East River Elec., 488 N.W.2d 892, 896 (S.D.1992)).

[¶ 26.] The defendants’ argument is unpersuasive. Taggart employed the rule to prevent sham issues from being interjected to sidetrack otherwise meritorious summary judgments. The rule is no substitute for the traditional courtroom tests of credibility. It applies only “when there was no explanation for the change in testimony from the deposition to the affidavit” submitted to oppose summary judgment. Taggart, 462 N.W.2d at 503 (citation omitted). At the time the court considered the defendants’ summary judgment motions there was ample evidence, besides Keith Carpenter’s deposition testimony, to demonstrate the existence of genuine issues of material fact. Keith testified that he waited for traffic to pass and his wife testified that she saw him look both ways. Keith’s memory was impaired from the severity of his injuries and gaining back some memory is not uncommon for accident victims. When witnesses testify that they did in fact look, the question whether they looked with proper care and saw all that they should have seen is one of fact. Safirstein v. Nunes, 241 Cal.App.2d 416, 50 Cal.Rptr. 642, 645 (1966). This change in testimony was classic credibility material, not grist for summary judgment or directed verdict.

E. Refusal of Defendants’ Proposed Jury Instructions

[¶ 27.] The defendants argue that the trial court erred when it refused ten of their proposed jury instructions. The defendants have the burden of showing prejudicial error, establishing that under the evidence, the jury would probably have returned a different verdict if the proposed instructions had been given. Ryken v. Blumer, 307 N.W.2d 865, 869 (S.D.1981) (quoting Lytle v. Morgan, 270 N.W.2d 359, 362 (S.D.1978)). We review jury instructions as a whole to decide if prejudicial error occurred. Anderson, 441 N.W.2d at 676. Instructions are adequate if they correctly state the applicable law. Id. (citing Wheeldon v. Madison, 374 N.W.2d 367 (S.D.1985)); Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 32, 557 N.W.2d 748, 758 (citation omitted). We decline to discuss a number of the asserted errors in refusing the ten proposed instructions, as we find either no prejudicial error in them or we conclude the questions they raise have been disposed of earlier in this opinion. It is not error for a trial court to refuse to give an instruction that is embodied in another instruction given to the jury. Herren v. Gantvoort, 454 N.W.2d 539, 542 (S.D.1990) (citing State v. Cook, 319 N.W.2d 809, 814 (S.D.1982)).

1. Definition of the Word “Slight”

[¶ 28.] The trial court gave the South Dakota pattern instruction on contributory negligence. The defendants contend that this instruction does not define the term “slight” correctly. In their proposed instruction four, citing Wood v. City of Crooks, 1997 SD 20, ¶ 4, 559 N.W.2d 558, 560, they defined the term as “small in amount, scanty, or meager, in comparison with the negligence if any, of John Wainman.” The court’s instruction defined the term as “small when compared with the negligence of the defendant.” See Westover, 488 N.W.2d at 898. The omission of the words “scanty” and “meager” from the instruction did not cause it to be insufficient or incorrect. “What constitutes ‘slight’ or ‘small’ contributory negligence naturally varies with the facts and circumstances in each case.” Id.

2. Failure to See Oncoming Vehicle

[¶ 29.] Next, the defendants argue it was error to deny their proposed instruction number five that would have instructed the jury that if drivers look in the direction of an approaching vehicle, they are charged with having seen it. The Carpenters counter that the instructions given, when considered as a whole, correctly stated the law on keeping a proper lookout. While none of the instructions specifically inform the jury that individuals are considered to have seen an oncoming vehicle in the direction they look, the instructions do state that drivers have the duty to keep a lookout that ordinarily prudent persons would keep, and that failure to yield to approaching traffic that they could have seen is negligence. The defendants’ proposed instruction might have been helpful to the jury on the issue of Keith Carpenter’s contributory negligence had it decided that Wainman was in the radius of danger, but the instructions as given correctly stated the law. As the defendants do not show how they were prejudiced by having their proposed instruction denied, the trial court did not err.

3.“Pacing” as Lawful Police Activity

[¶ 30.] The trial court gave instruction number nineteen, which informed the jury that speed limits do not apply to authorized vehicles measuring the speed of another vehicle by “pacing” that vehicle; however, it must be done “with due regard for the safety of all persons.” See SDCL 32-31^4. It stated also that the failure to follow this standard of care is negligence. The defendants argue it was error for the trial court to refuse to include an additional paragraph, as drafted in their proposed instruction number seven, that would have informed the jury that this statute takes precedence over any City of Belle Fourche ordinance or policy prohibiting pacing. They claim this language should have been included because testimony elicited from a former City council member suggested that the City’s pursuit policy did not allow pacing. After reviewing this testimony, we think the defendants misread its import. The testimony merely revealed that the City’s policy does not mention the practice of pacing. This is not a basis for including the requested language in the instruction. The trial court did not err.

4.Sudden Emergency Doctrine

[¶ 31.] The defendants’ proposed instruction number eleven explained the sudden emergency doctrine. They believe it should have been given because the Carpenters’ expert testified that Wainman should have turned his patrol car to his right to avoid the accident, allowing him to pass behind Keith’s vehicle. They argue that because there was another course of action available after the dangerous situation was perceived, the instruction was necessary.

[¶ 32.] In Meyer v. Johnson, 254 N.W.2d 107 (S.D.1977), we set out the guideline for sudden emergency instructions:

Although we believe unavoidable accident instructions should be restrictively used we do not favor ... total exclusion. In the ordinary negligence action the jury is adequately instructed on the ultimate issues by instructions on negligence, contributory negligence, burden of proof, and proximate cause. Further instruction on unavoidable accident usually is unnecessary. Such instruction may properly be given in those cases where there is evidence that something other than the negligence of one of the parties caused the mishap. It is particularly apt where the further element of “surprise” is present such as the sudden and unexpected presence of ice, the blow-out of a tire, the malfunction of brakes, or other mechanical failure.

Id. at 110 (omission in original) (emphasis added) (quoting Cordell v. Scott, 79 S.D. 316, 322-323, 111 N.W.2d 594, 598 (1961)). Here, there was sufficient evidence of Officer Wainman’s negligence presented to exclude this instruction that would have served only to improperly emphasize the defendants’ position. See id.; Del Vecchio, 293 N.W.2d at 476. As the facts did not call for this instruction, it was not error to refuse it.

5. Assumption of Risk Doctrine

[¶ 33.] Lastly, the defendants assert that the court should have given an instruction on assumption of the risk based on constructive knowledge. Thus they proposed their instructions numbered twelve and thirteen. They argue that a reasonable motorist would have recognized that not looking to the left when leaving the stop sign was hazardous, that Keith voluntarily proceeded onto the highway with constructive knowledge of the risk of injury, and that therefore knowledge of the danger was imputed to Keith. The trial court granted the Carpenters’ motion for a directed verdict on the issue of assumption of the risk, and refused to give the proposed instructions.

[¶ 34.] The proposed instructions explained the three elements of assumption of the risk: “1) that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved; 2) that the plaintiff appreciated the risk’s character; and 3) that the plaintiff voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.” S.D. Pattern Jury Instruction 13-01 (Rev. 1994; Rev for gender 1995). See Thomas, 283 N.W.2d at 259 (citing Kessler v. Bowie Mach. Works, Inc., 501 F.2d 617 (8th Cir.1974); Stenholtz v. Modica, 264 N.W.2d 514 (S.D.1978); Bartlett v. Gregg, 77 S.D. 406, 92 N.W.2d 654 (1958)). The comments to this instruction state that the difference between assumption of the risk and contributory negligence “is frequently one between risks which were in fact known to the plaintiff, or so obvious that [the plaintiff] must be taken to have known of them, and risks which [the plaintiff] merely might have discovered by the exercise of ordinary care.” (alterations in original) (quoting Bartlett, 77 S.D. 406, 92 N.W.2d at 658). The evidence here does not show that Keith Carpenter had actual knowledge of Officer Wainman’s vehicle approaching faster than the posted speed limit. “A person has constructive knowledge of a risk if it is plainly observable so that anyone of competent faculties is charged with knowledge of it.” Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 905 (S.D.1994) (citing Westover, 488 N.W.2d at 901). There was testimony at trial that it is difficult for drivers viewing oncoming vehicles from where Keith was located to determine the speed of oncoming traffic. Turning to the second element, although people may not close their eyes to obvious dangers, and cannot recover where they were in “possession of facts from which [they] would be legally charged with appreciation of the danger,” Goepfert v. Filler, 1997 SD 56, ¶ 9, 563 N.W.2d 140, 143, the evidence supports the conclusion that Keith did not knowingly appreciate the risk. Finally, the evidence does not support the third element, that Keith “voluntarily accepted the risk”; rather, it shows that he simply did not appreciate the danger. This does not support giving the instruction on assumption of the risk, and the trial court did not err in refusing to give it.

[¶ 35.] The defendants have failed to show that the trial court’s denial of the proposed instructions prejudiced them or that it is likely that the jury would have returned a different verdict if their instructions had been given. See Cook, 319 N.W.2d at 814. After comparing the defendants’ proposed jury instructions with the instructions given at trial, we find that the trial court did not err in refusing the proposed instructions.

[¶ 36.] Judgment affirmed.

[¶ 37.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . Halvorsen was treated and released from the hospital that evening, and Officer Wain-man received only minor abrasions on his arms and legs.

      . The full text of SDCL 32-29-2.1 states:
      Unless directed to proceed by a police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall come to a full stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered or is approaching the intersection from another highway and may not proceed into the intersection until certain that such intersecting roadway is free from oncoming traffic which may affect safe passage. A violation of this section is a Class 2 misdemeanor.

      . The Carpenters argue that the denial of summary judgment is not appealable because a final judgment was entered after a full trial on the merits. They cite federal cases applying Federal Rule 56, as well as an Iowa case, that held that a ruling denying summary judgment is interlocutory in nature and is not appealable after a full trial on the merits because the earlier summary judgment ruling has been superseded. SDCL 15-26A-7 states which orders and determinations by the trial court are subject to review on appeal following a judgment:
      On appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record.

        Id. The review must be of a ruling that both ”involv[es] the merits” and "affect[s] the judgment.” Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533, 536 (1962). These requirements are met in this denial of summary judgment. The courts cited by the Carpenters are not governed by a statute such as SDCL 15-26A-7. We have on numerous occasions reviewed the denial of a motion for summary judgment after a full trial has been held and a verdict on the merits has been reached. See Fritzel, 1999 SD 59, 594 N.W.2d 336; Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610; Weins v. Sporleder, 1997 SD 111, 569 N.W.2d 16; Smith v. Highmore Farm Ltd., 489 N.W.2d 908 (S.D.1992). The matter is properly before us.

      . Although the traffic laws recited in McKiver and Kundert remain viable, the contributory negligence holdings in these decisions have limited value as precedent. The auto accident in McKiver occurred on June 14, 1939, before the enactment of South Dakota's first comparative negligence statute in 1941. SDC § 47.0304-1 (Effective July 1, 1941). McKiver applied pure contributory negligence law; that is, any negligence by the plaintiff completely barred recovery. The accident in Kun-dert happened on November 10, 1941. The Kundert Court applied the 1941 version of the comparative negligence statute, but the Court's interpretation of that statute was in accord with Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438, 442 (1943): "[T]he legislature made use of the words 'slight negligence' to describe a quantum of want of such ordinary care as a reasonable man would exercise under the circumstances.” It was not until nearly twenty-five years later, based on an article written by Judge Hanson of this Court, that the "absolute basis” of comparison with the hypothetical reasonable person was abandoned for the modern interpretation which calls for comparison of the plaintiff's negligence with the defendant's. See Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371, 376 (1967) (quoting Associated Engineers, Inc. v. Job, 370 F.2d 633, 640 (8th Cir.1966)).