author: SATHRE, Judge.

text:
    KAISER v. MINNEAPOLIS, ST. P., S. S. M. R. CO.
    No. 7381.
    Supreme Court of North Dakota.
    Dec. 23, 1953.
    W. J. Austin, Bismarck, for plaintiff and respondent.
    Kelsch & Scanlon, Mandan, for defendant and appellant.
   SATHRE, Judge.

This action arose out of a collision between an automobile owned and operated by the husband of the plaintiff and the defendant’s freight train where its tracks cross U. S. Highway No. 10 immediately east of 24th Street in the City of Bismarck. The railroad of the defendant involved in the collision runs in a northwesterly and southeasterly direction and crosses U. S. Highway No. 10 at 24th Street near the east edge of the City of Bismarck. The train which collided with plaintiff’s car originated ■ at Hankinson, North Dakota, traveled in a northwesterly direction and entered Bismarck from the southeast.

For a first cause of action the complaint alleges that on September 7th shortly before 8 o’clock in the evening the plaintiff and her husband, John Kaiser and their four small children were driving their 1938 Chevrolet Automobile in a careful, prudent and lawful manner in an easterly direction on U. S. Highway No. 10, Bismarck, North Dakota, at a point where said highway crosses defendant’s railroad tracks at 24th Street east of the City of Bismarck, North Dakota; that as plaintiff reached said railroad crossing the defendant ran one of its locomotives with a train of cars attached across said highway at said crossing at a high and negligent rate of speed without warning of any kind and without posting a watchman or without maintaining sufficient or proper warning signals or safety devices at the approaches to said crossing, and that by reason of said negligent acts of the defendant plaintiff’s car collided with defendant’s train and was completely wrecked and demolished; that said collision was proximately caused by the defendant’s acts of negligence and that by reason thereof plaintiff was unable to see or hear said locomotive until it was too late to avoid such collision; and that before the collision said automobile was worth $1000 and that after the collision it was practically worthless; that her husband assigned to her, the plaintiff, his cause of action against the defendant for the damages to his said automobile.

For her second cause of action the plaintiff alleges that as a result of the collision she was thrown violently against' the dash board of the automobile and sustained lacerations, bruises and injuries, and suffered great physical pain and mental anguish and will never again be able to carry on her life as before or to do the heavy work to which she had been accustomed, and which is necessary to a livelihood, all to her damage in the sum of $1500. She further alleges that she will be obliged to spend large sums of money for medical attention and hospital care all to her damage in the additional sum of $450.

The defendant demurred to plaintiff’s first cause upon the grounds that plaintiff wás not the real party in interest, and that it sounded in tort and was not assignable. The trial court overruled the demurrer and defendant answered admitting its corporate existence and that a collision occurred on September 7th between the automobile of plaintiff’s husband and defendant’s train, but denied specifically any negligence oil" its part and alleges that the damages, if any, sustained by the plaintiff and her husband were proximately caused by their contributory negligence and their failure to exercise due care and caution for their own safety. Likewise in its answer to plaintiff’s second cause of action defendant admitted that the collision occurred on September 7th ás alleged in the complaint, but denied specifically any negligence on its part in the operation of its train, and alleged that the damages, if any sustained by the plaintiff’and her husband were proximately caused by their contributory negligence and failure to exercise due care for their own safety.

The case was tried to the court and a jury and the jury returned a verdict for the plaintiff in the sum of $100 in the first cause of action and the sum of $401.66 in the second cause of action. At the close of the entire case the defendant made a motion for a directed verdict in its favor on the grounds that the evidence was insufficient to establish a cause of action against it. The motion was denied. Judgment was entered upon the verdict and the defendant appealed from the judgment.

Defendant assigns numerous errors, all of which may be 'Considered under two propositions:

1. That the plaintiff’s first cause of action was based upon and sounds in tort and was not assignable as a matter of law, and that the plaintiff was not the real party in interest.

2. (a) That the evidence was insufficient to establish any negligence on the part of the defendant; and

(b) That it is established by the evidence that the plaintiff and her husband were guilty of contributory negligence as a matter of law, and that such contributory negligence was a proximate cause of collision.

We shall consider these propositions in the order stated.

The defendant contends that plaintiff’s first cause of action sounded in tort and is not assignable. To this we cannot agree.

“A thing in action is a right to recover money or other personal property by a judicial proceeding.” NDRC 1943, 47-0702.
“A thing in action arising out of the violation of a right of property or out of an obligation may be transferred by the owner. * * * ” Sec. 47-0703, NDRC 1943.

The cause of action for injury to the automobile clearly falls within these provisions of the statutes quoted. It is difficult to see how these provisions could be construed to have any other meaning. Stapp v. Madera Canal & Irrigation Co., 34 Cal.App. 41, 46, 166 P. 823; Cassetta v. Del Frate, 116 Cal.App. 255, 2 P.2d 533. In Cassetta v. Del Frate, supra, the California Court in construing a statute of that state, which so far as material here was identical with NDRC 1943, 47-0703, held that a claim for damages to property in an automobile accident was assignable.

The trial court correctly overruled defendant’s demurrer to plaintiff’s first cause of action.

The plaintiff and her husband are farmers residing some thirty miles north of Bismarck. The plaintiff, her husband and their four small children drove to Bismarck, September 7th and started for their home shortly before 8 o’clock in the evening, driving east on U.S. Highway No. 10. John Kaiser, plaintiff’s husband testified in substance as follows:

He and his wife, the plaintiff, and their four small children left Bismarck shortly before 8 o’clock in the evening; the sun was down, the lights on his car were turned on and the windows of his car were open on both sides; his wife and the youngest child were riding with him in the front seat; he was looking east toward the railroad crossing, but did not see any train and heard no whistle and no bell ringing; another car passed him and he followed this car a short distance some four feet behind it; this car, he said, crossed the railroad crossing just before the collision; he saw the “black engine” when he was about 35 feet from the crossing but saw no headlight on the engine; he slammed on his brakes turned short to the right to avoid the collision but his car was struck on the left side by the diesel engine and was considerably damaged; the lights on his car were still on when it came to rest; his wife, the plaintiff opened the door and attempted to jump out of the car, but the door flew back, and struck her; when the car came to rest it was just far enough away from the track to permit the train to pass without touching it; before the collision his car was in good mechanical condition, the brakes were good; he had been driving cars for twenty-five years and his eyesight and hearing were good; he stated further that before the collision his car was worth $500 and that after the collision it was hardly worth $50.

The plaintiff testified that she was 37 years old; that she with her husband and children were living on a farm near Baldwin, and that they were farmers; that she liad completed the sixth grade in school and had always lived on the farm; that on the day of the collision she and her four children rode with her husband to Bismarck; they left Bismarck on their way home shortly before 8 o’clock in the evening; the sun was down and it was getting dark; she was riding in the front seat with her husband and their daughter who was one and one-half years old; three other small children between the ages of 2 and 5 years were riding in the back seat; they were driving east on U. S. Highway No. 10 towards the Soo Line crossing at 24th Street; the headlights of the car were turned on; the traffic was heavy; cars were driving east and west; the windows of the two1 doors of their car were open; she was looking east in the direction they were driving; she did not see any train approaching nor did she hear any warning of any kind and saw no headlight of the train; before they reached the crossing one car passed them going east and drove over the crossing just before the collision; she did not see the train until just before the collision; her husband slammed on the brakes and turned sharply to the right; and they collided with the diesel engine; she opened the door and tried to jump out, but the door flew back and struck her; she was hurt in the accident and went to a doctor three days later. She further stated that she never drove a car and “had never touched a wheel yet”; that before commencing this action her husband made a written assignment to her of his claim for damages against the railroad and it was admitted in evidence as plaintiff’s exhibit 5. She further testified that she had good eyes and could see to do her sewing without the aid of glasses; her hearing also was good. Plaintiff’s exhibits 3 and 4 show hospital expenses in the sum of $51.66 and a doctor bill of $150.00. There was considerable medical testimony indicating some injury to her left breast, bruises to the left knee and she had an injury to her lower spinal column.

It is not necessary to recite in detail the lengthy medical examination and the finding of the examining physicians based thereon, except to say that it appears certain that the plaintiff suffered considerably from injuries and shock as a result of the collision.

Paul John Tipton testifying for the defendant stated that he was conductor on the train that collided with plaintiff’s car and that it came into Bismarck from the southeast; that it was traveling 10 miles per hour, and the collision with plaintiff’s, automobile occurred at about 7:35 p. m. September 7th; the train consisted of five cars, one baggage car and a combination car, and he was riding in the combination car; he heard the emergency brake applied and when the train stopped he stepped out of his car and walked to the crossing and then discovered that plaintiff’s automobile had collided with the diesel engine of the train; the automobile was headed southeast and just far enough away from the cars to permit the train to move on; the diesel engine was equipped with a horn and a bell; he heard the sound of the horn for the crossing when 'he was in the coach, but did not hear the bell; at the time of the collision the speed of the train was not in excess of 10 miles per hour; he uncoupled the train to permit traffic over the crossing. Dave Crawford, the engineer stated that the engine was equipped with two electric whistles, one in the front of the cab and one to the rear and it was also equipped with a bell; the headlight of the diesel had a 250 watt light bulb, and had a high beam and a low beam or dimmer; the low beam is kept on during the day and the 'high beam is turned on when it gets dusk; in approaching the crossing where the collision occurred he was traveling at a speed not in excess of 10 miles per hour; he sounded the whistle for this crossing and continued the last blast until he crossed the crossing and he also rang the bell continuously; as he approached the crossing the fireman gave him the signal to apply the emergency brake when he was just on the west side of the crossing over No. 10; he got the signal from the fireman after he had quit blowing the whistle; he did not see any car drive across the crossing just before the collision; he did not hear the noise of the impact of. the collision, but after stopping the train he walked hack and then saw plaintiff’s car heading southeast but did not see the occupants; he examined the diesel engine and found marks of the impact on the diesel engine from the center oil box all the way back to the speedometer cable. With reference to’ the headlight of the diesel engine, he stated that if it was on high beam you could see an object up to a thousand feet away, but on low beam or 'dim you could not see much farther than if it was not on; it was just dusk when he stepped out of the engine to go back to where the collision occurred and he noted the time to be 7:35 p. m.

Myron Ode testifying for the defendant stated that he operated Ray’s Friendly Service located about 500 feet west. of the railroad crossing on No. 10; he was on duty on the evening of September 7th when the collision occurred; he heard the whistle of the defendant’s train, — one blast and he saw the light from the engine, but did not hear the crash; he was servicing a car at the time.

Nick A. Kronberger testifying for the defendant stated that he was a brakeman on the train that collided with plaintiff’s car and was riding in the combination car; he stepped out of the combination car after the collision and went over to plaintiff’s automobile and noticed that it was “about parallel with the track and that it had a clearance of about 4 inches from the cars”; ■ he noticed marks on the left side of the diesel engine. As to whether the headlight of the diesel engine was on he testified as follows:

“Q. When you. came up; could you tell whether the headlight on the diesel engine was on? A. Well, I’d say yes.
“Q. ■ Well, I want to know, if you know. If you don’t know, just tell us. A. Well, I never went up and looked at it.
“Q. But it would throw a beam, wouldn’t it? A. Yes.
“Q. At that time in the evening, did you see it or did you not? A. I can’t say that I did.”

Albert Mischel, a witness for the defendant stated that he was employed by Orin Thompson whose place of business is a short distance south of the Soo Line crossing at 24th Street and adjoins the right of way of the defendant; on September 7th the date of the collision he heard the whistle of the train that collided with plaintiff’s car; he saw plaintiff’s car traveling east toward the crossing at a speed of about 25 miles per hour but did not notice whether its lights were on, it slowed down and turned sharply to the right when it was 30 to 40 feet from the crossing, and at that time the train was about the same distance from the crossing; before the collision he saw Thompson running toward the car trying to flag it down and he saw the collision; on cross-examination he admitted that four days after the accident he gave a written statement to plaintiff’s attorney of the - circumstances of the collision as he knew them at the time and that the statements contained therein were true. This statement was introduced in evidence as plaintiff’s exhibit 6, and is as follows:

“My name is Albert Mischel, I live at 705 South 17th Street in Bismarck, N. Dak. and am employed at the Orin Thompson used car establishment on 24th and Main in Bismarck.
“At about 8:00 P.M., last Friday, Mr. Thompson and I were standing at the front door of his office talking. I heard a train approaching the crossing from the southeast because they blew the train whistle a long ways back, and as the train came closer I could hear it coming down the track. I don’t know whether the train lights were on or not, but I could hear the train approach by the roar and rattle of the cars and by the whistle, which had blown quite a ways back. Just at this time Orin and I saw a car coming down the road from the west. We saw it quite a ways back and it was coming at about 25 miles an hour. When the driver approached the railroad crossing he did not slow up and it looked like he, didn’t know the train was coming and that he would just about reach the crossing at the same time the train did. I don’t know how fast the train was coming because it was behind our office, but Orin started out toward the crossing, yelling for the driver to stop. The driver didn’t see the train until too late to avoid the collision, but swerved to the right just before the impact.
“I don’t know how badly anyone was hurt in the wreck but it appeared to me that there were no serious injuries.
“I have read this statement and it is true to the best of my knowledge.
“Dated this 11th. day of September, 1951.”
/s/ Albert Mischel.”

Orin Thompson a witness for the defendant stated that his 'business was selling used cars and that his place of business was about 60 feet south from U. S. Highway No. 10 at 2419 East Main near the Soo Line crossing and he was at his place of business on September 7th when plaintiff’s car collided with defendant’s train; he 'heard the train coming and the whistle blowing but did not recall whether he heard more than one blast, and he did not notice whether the headlight of the diesel was on or off; he saw plaintiff’s car about 100 feet west of the crossing traveling east at about 20 miles per hour and he saw the train coming from the southeast and he ran out and tried to warn the driver; he saw the car swerve to the right and that it collided with the diesel; he did not notice whether the headlights of the car were on; when it stopped there was just enough clearance for the railroad cars to go by.

John Paul Wisciskola testified that he was the section foreman of the defendant and was in the employ of the defendant at the time of the collision; that there were crossbuck signs on each side of the railroad crossing on the day of the collision September 7th and that there were reflectors on the crossbucks.

Howard Soule was the fireman on the 'diesel engine and was on duty on the day of the collision September 7th; the train was traveling about 10 miles per hour when approaching the crossing and he heard the sound of the horn; he thought the headlight of the diesel must have been on high; he saw plaintiff’s car some 40 to 50 feet away from the crossing and when it did not stop he gave the emergency brake signal and the engineer applied the brakes just as the collision took place.

Alton Schuette testifying for the defendant stated that he was a brakeman on the train that collided with plaintiff’s automobile on September 7th and was riding in the combination car, and that the train was traveling about 10 miles an hour when approaching the crossing on highway No. 10; 'he could not say that he heard the whistle of the diesel engine, but could tell that the emergency brake was applied; he did not know whether the headlight of the engine was on before the accident.

In the instant case there was, as usual in such cases, a conflict in the testimony. Plaintiff and her husband testified that the sun was down and that the headlights of the car were on bright and the windows of the Chevrolet automobile were open on both sides. They were looking toward the east in the direction they were driving and they testified positively that they did not see the train, and saw no headlight and heard no sound of whistles or bells although both had normal hearing and sight. Plaintiff’s husband the driver of the car had driven cars for 25 years or more and the car that they were driving was in good mechanical condition. He did not see any light or hear any whistle or bell and the first thing that he saw was a “black engine” and he then slammed on his brakes and turned sharply to the right and that the left side of his car collided with the diesel engine. Plaintiff and her 'husband both testified that another car passed them traveling east and that this particular car crossed the crossing just before the collision.

The train crew including the conductor, engineer and fireman stated that the headlight of the engine was on and that the whistle sounded and the bell was ringing before they reached the crossing. There was some disagreement in the testimony given by the witnesses for the defendant. Albert Mischel one of the witnesses for the defendant testified on cross-examination “I heard the train approaching the crossing from the southeast 'because they blew the train whistle a long ways back”. The written statement of this witness taken four days after the collision, plaintiff’s exhibit 6 to which reference has been made herein, stated that he did not know whether the headlight of the train was on, that he heard the train approach by the roar and the rattle of the cars and by the whistle which had blown quite a ways back. The fireman stated that he heard the sound of the horn when they were approaching the crossing and that 'he thought that the headlight of the diesel was on. When asked on cross-examination whether the light was on, his answer was, “It must have been on”. The plaintiff and her 'husband testified positively that they saw no headlights and heard no whistle or bell sounding. They were driving due east and the train was approaching the crossing at an obtuse angle from the southeast only a short distance away. At the angle of approach of the train, the headlight of the engine, if it was on, would be shining almost directly into their faces and it would indeed be strange if they did not see it, in view of the testimony of the engineer that when the headlight was on bright an object could be seen at a distance of 1000 feet. It is not disputed that the eyesight and hearing of the plaintiff and her husband were normal.

'Sections 49-1121 and 49-1302, 1949 Supp. NDRC 1943 define the duties of railroads with reference to warning to be given by trains approaching highway and street crossings and are as follows:

“49-1121. A bell of at least thirty pounds in weight or a steam whistle or an air horn shall be placed on each locomotive engine and shall be rung or whistled or sounded at a distance of at least eighty rods from the place where the said railroad shall cross any other road or street and shall be kept ringing or whistling or sounded until it shall have crossed said road or street.”
“49-1302. No railroad corporation nor its officers, agents, or employees shall use any locomotive engine in moving traffic or in the transportation of passengers or property within this state in main line service, between the hours of sunset and sunrise, unless said locomotive engine shall be equipped with a headlight of at least twelve hundred candlepower of light when measured without the aid of a reflector, except in the following cases:
“1. In passing through or working within the yard limits of any station or terminal, a light of lesser candlepower may be used ⅜

There is therefore a sharp dispute in the testimony as to whether the defendant negligently violated the duties imposed upon it by law in failing to give proper warning in approaching the crossing involved by sounding the whistle or ringing the bell, and turning on the headlight of the engine; or whether the plaintiff and her husband were guilty of contributory negligence in failing to keep proper lookout in approaching the railroad crossing and to exercise due care and caution for their own safety, and whether such negligence or contributory negligence, if established 'by the evidence, was the proximate cause of the collision.

It is well settled that the question of negligence of a defendant or the contributory negligence of a plaintiff is one of fact for the jury and becomes a question of law only when reasonable men can draw but one conclusion from the evidence.

“The question of negligence, whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury. The question becomes one of law, authorizing its withdrawal from the jury, only when but one conclusion can be drawn from the undisputed facts.” Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359, 363.

See also Bratvold v. Lalum, 68 N.D. 534, 282 N.W. 514, Pleckman v. Evenson, 7 N.D. 173, 73 N.W. 427.

Upon the record before us and the authorities cited we are satisfied that the questions of negligence and contributory negligence were properly submitted to the jury, and the jury having resolved the issues in favor of the plaintiff their verdict will not be disturbed.

The judgment appealed from is affirmed.

MORRIS, C. J., and CHRISTIANSON, GRIMSON and BURKE, JJ., concur.


source: Caselaw Access Project

author: ¡BURKE, Judge.

license: Public Domain

text:
    ELLISON et al. v. STRANDBACK et al.
    No. 7339.
    Supreme Court of North Dakota.
    Dec. 19, 1953.
    Rehearing Denied Feb. 3, 1954.

      J. K. Murray, Bismarck, for appellants.
    Sullivan, Kelsch & Scanlon, Mandan, for respondents.
   ¡BURKE, Judge.

This is an action to quiet title to a tract of land in Morton County. Plaintiffs, the heirs at law of John A. Ellison, alleged in their complaint that the said John A. Ellison, during his life time, acquired title to the described property by adverse possession and that upon his death title to such property passed to them by inheritance. The defendants, in their answer and counterclaim, deny that John A. Ellison ever occupied the described land adversely and allege that each of them and the deceased John A. Ellison acquired an undivided one-tenth interest in said land by inheritance from their father, John Ellison, Sr., that they and each of them are still possessed of their respective interests in said land and that the interest of the deceased John A. Ellison has passed to his heirs at law, the plaintiffs in this action. They asked that title be quieted as to their respective interests. The trial court found in favor of the defendants and judgment was entered accordingly. The plaintiffs have appealed from the judgment and have demanded a trial anew in this court.

John Ellison, Sr., died intestate in 1922. At the time of his death he was the owner of the land in controversy. He was survived by ten children, four daughters and six sons. Nine of these children are de.-fendants in this action, the other was John A. Ellison, deceased. At the time of the death of John Ellison, Sr., John A. Ellison, the youngest son, was the only one of the children who lived at home. Thereafter he continued to live at and operate the farm home. In 1923 he married the plaintiff, Josephine Ellison, and he and his wife lived upon and farmed the said land until July 1950, when John A. Ellison died. After the death of her husband Josephine Ellison continued to reside upon the land until October, 1950, when she surrendered possession of it to the administrator of the estate of John Ellison, Sr.

The defendant, W. P. Ellison, was appointed as administrator of his father’s estate. Letters of Administration were issued to him on January 28, 1926. The estate of John Ellison, Sr. has never been closed and said Letters of Administration are still in full force and effect. On May 8, 1928, ,W. P. Ellison, Administrator, filed a Final Report and Accounting and Petition for Distribution. The petition asked that an undivided one-ninth interest in all the real and personal property be distributed to each of the heirs. Citations hearing this petition were served upon all of the heirs by registered mail. Some of the heirs made objections as to the allowance of certain items in the account, but no objections or claims of any nature were made by John A. Ellison. On August 22, 1928, the County Court entered an order approving the final account with certain exceptions but directed that the estate be not closed until certain specified debts were paid. Among the receipts listed by the administrator in this roport were rentals of the farm land for the years 1922 to 1927 inclusive, upon a one-half crop share basis.

Prior to his death John Ellison, Sr., had mortgaged a large part of the described lands to the State of North Dakota (Board of University and School Lands). After his death his heirs defaulted in the payment of interest on the mortgage and taxes on the land. The mortgagee paid the taxes from 1921 to 1928 inclusive. In 1929 there was due on the mortgage for principal, interest tand taxes the sum of $5,600.00 and foreclosure proceedings were in progress. W. P. Ellison, administrator, in order to make a redemption, from the foreclosure sale, petitioned the County Court of Morton County for leave to mortgage the land. A citation hearing said petition was served upon all the respondents, including John A. Ellison, by registered mail. John A. Ellison, entered no objections to the mortgaging of the land. The petition was allowed and the loan with the state land department was refinanced by the execution of a new mortgage for $5,000.00 by W. P. Ellison, administrator, and the state executed a quit claim deed to the land to W. P. Ellison, administrator, on April 5, 1930, as evidence of the redemption which had been made.

Thereafter and until he died John A. Ellison made all of the interest payments due on the mortgage to the state and paid all the taxes, including those for the year 1929. Receipts for the payments of interest were made out to W. P. Ellison, administrator, and with but two or three exceptions the tax receipts were made out to W. P. Ellison, administrator, by John A. Ellison. From 1928 until he died John A. Ellison farmed the land and, with the exception of the payments above named, he retained the proceeds of all of the farm produce for his own use. Sometime between 1935 and 1940 he built a new cattle barn on the farm. He put a new roof on the house in 1949 and at some time not disclosed by the evidence put new curbing in the well.

In 1941, when John A. Ellison was a county commissioner, he entered into a contract with Morton County on behalf of his brother W. P. Ellison, administrator, for the payment .of delinquent taxes. The contract recites that the contracting parties are W. P. Ellison and Morton County. John A. Ellison signed his brother’s name thereto. Sometime after 19'40, John A. Ellison listed the land in question with the triple “A” now the Production and Marketing Administration. This listing shows John A. Ellison as the operator of the land and John Ellison Estate, W. P. Ellison, administrator, as owner.

In 1949, John A. Ellison executed an oil and gas lease which purported to lease the whole of the land. He also insured the buildings on the farm and paid the insurance premiums. The earliest policy of insurance produced was dated in 1946.

After the death of her husband, the plaintiff, Josephine Ellison filed a verified petition in the County Court of Morton County for the probate of John A. Ellison’s estate. In this petition she alleged that her deceased husband at the time of his death owned an undivided one-tenth interest in the land to which title is here contested.

As related so far the facts are undisputed or are established by documentary evidence. Other facts, depending upon the uncorroborated testimony of witnesses, are in dispute. Among these witnesses are the plaintiff Josephine Ellison and the defendant W. P. Ellison. The testimony of each of them was objected to as being incompetent under the provisions of Sec. 31-0103, NDRC 1943, the so called “dead man’s statute.” This statute provides:

“In any civil action or proceeding by or against executors, administrators, heirs at law, or next of kin in which judgment may be rendered or ordered entered for or against them neither party, except as provided in section 31-0104 and section 31-0105, shall be allowed to testify against the other as to any transaction whatever with or statement by the testator, or intestate, unless called to testify thereto by the opposite party. * * *”

This is clearly an action by the heirs at law of John A. Ellison, in which a judgment may be rendered for or against them. All parties to the action are therefore barred from testifying unless they come within one of the exceptions noted. Section 31-0104, NDRC 1943 provides:

“In any action or proceeding by or against any surviving husband or wife touching any business or property of either, or in which the survivor or his or her family is interested in any way, such surviving husband or wife, if he or she shall so desire, shall be permitted to testify under the general rules of evidence as to any or all transactions and conversations touching such business or property had with the deceased husband or wife.”

This section clearly exempts the plaintiff Josephine Ellison from the ban imposed by Sec. 31-0103 supra. The action is by a surviving wife. It touches property in which she is interested and she therefore was not barred from testifying as to any transactions or conversations had with her deceased husband concerning property. Sec. 31-0105, relates to cases where the testimony of a deceased person has been taken prior to his death and preserved. It does not in any way relieve W. P. Ellison or any of the other parties to the action from the disability to testify imposed by Sec. 31-0103. It follows that the testimony of Josephine Ellison may be considered while that given by W. P. Ellison must be disregarded in so far as it relates to conversations or transactions with the deceased.

Josephine Ellison testified that within a week or two after she married John A. Ellison, he told her that the farm had been given to him by his father and that he told her at least twice a year that the farm was his. Two other witnesses for the plaintiff testified that John A. Ellison made statements wherein he stated positively or intimated that the land was his. John Handt-man testified that in the spring of 1950, Ellison told him “I own all of it. It’s all mine.” Steve Tokatch testified that several times between 1947 and 1950 Ellison mentioned to him that “he was going to pay his taxes.”

Steve Brigl, witness for the defendant, testified that between 1928 and 1938 he was present on several different occasions at conversations between W. P. Ellison and John A. Ellison and that the subject of such conversations was the leasing of the farm. He told of a conversation concerning the oil lease that John A. Ellison had given in 1949, and stated that John said, “I told them I was just an heir, I just had one-tenth interest in there,” and that he signed the lease “just to get rid of them.” He also related a conversation had with John A. Ellison after the house on the farm had •been reshingled in 1949. This testimony is as follows: “and then we discussed about painting the building on the outside and he said that is too much. The estate can’t stand this much and I said ‘Well put siding on it’ and he said ‘The paint runs into too much money, but we might put on some fancy siding, but they don’t need painting, but I will talk it over with the administrator to see whether he allows it or whether he can do this work.” Defendant’s witness, C. F. Kelsch, testified that in April 1933, John A. Ellison paid him $320.00 for his services in representing W. P. Ellison, administrator.

The question for decision is whether this record shows open, notorious and hostile possession of the land in question, by John A. and Josephine Ellison for twenty years prior to the time Josephine Ellison surrendered possession of the land to W. P. Ellison, administrator in October 1950.

Upon the death of John Ellison, Sr., his ten surviving children each succeeded to a one-tenth interest in the land and estate owned by him at the time of his death. NDRC 1943, Sec. 56-0104. They succeeded to the title to the real property as tenants in common. Stevahn v. Meidinger, N.D., 57 N.W.2d 1. As to co-owners of real property each had a right to enter upon the common estate and take possession of the whole thereof, subject only to the equal rights of his companions in interest. Stephan v. Meidinger, supra. Possession by one cotenant is consistent with the record title and is presumed to be subordinate to the rights of all other cotenants. Ildvedsen v. First State Bank Bowbells, 24 N.D. 227, 139 N.W. 105. Before possession, of one cotenant can become adverse, the cotenant in possession, must give notice to the other cotenants, either directly or by a course of conduct in direct hostility to their claims so as to show an ouster of the rights of such cotenants. Stoll v. Gottbreht, 45 N.D. 158, 176 N.W. 932.

Here there is no claim that John A. Ellison ever gave direct notice to.his coten-ants that he made any claim adverse to their interests. The contention is that the character of his possession was such that it gave notice to his cotenants that their title was not acknowledged and that his possession was adverse to them.

The burden was upon the plaintiff to establish adverse possession for the statutory period by clear and convincing evidence. Rovenko v. Bokovoy, 77 N.D. 740, 45 N.W.2d 492; Morgan v. Jenson, 47 N.D. 137, 181 N.W. 89.

Here there can be no doubt, that the occupation and use of the land by plaintiff’s husband was in the beginning permissive and not adverse to his cotenants. There was testimony by the plaintiff to the effect that her husband, in 1923, told her that his father had given him the land and that it was his. This testimony is not convincing. Her husband’s behavior at that time and for several years afterwards was wholly inconsistent with any such claim. The record shows that the administrator of the estate of John Ellison, Sr., collected rent on this land upon a half crop rental basis as follows: 1922, $322.00; 1923, $844.76; 1924, $1212.27; 1925, $915.13; 1926, $504.50; 1927, $1071.19. The payment of these rentals is directly at odds with any claim on the part of John A. Ellison and that the land was his.

Possession, which is permissive in its inception can become adverse only where there is a disclaimer of the true owner’s title, or there are acts of such an unequivocal nature on the part of the user, that notice of the hostile character of the possession is brought home to the record owner. Rovenko v. Bokovoy, 77 N.D. 740, 45 N.W.2d 492; Lindokken v. Paulson, 224 Wis. 470, 272 N.W. 453, 110 A.L.R. 910.

It is undisputed that plaintiff surrendered possession of the land to W. P. Ellison, administrator, in October 1950. In order to prove title by adverse possession she must therefore show that the possession of the land by her deceased husband became adverse to his cotenants not later than 20 years prior to October 1950 or not later than October 1930 and- remained continuously hostile and adverse thereafter. Since the record shows permissive occupation of the land through the year 1927 and since there is no evidence of any declaration to any of his cotenants by the user that he made any claims adverse to their interests, the question is “Did the plaintiff’s husband between January 1, 1928 and October 31, 1930 do or perform any acts of such a nature that they would give notice to his cotenants, that he claimed to hold adversely to them ?”

The acts relied upon by plaintiff are the payment of taxes, the payment of interest on the .mortgage and the taking of the entire crops from the land. With respect to taxes the record shows that four-fifths of this land was mortgaged to the State of North Dakota; that none of the heirs of John Ellison, Sr., paid any taxes on the mortgaged land until after 1928, but that such taxes were paid 'by the state land department. The record also shows that the 1929 faxes were paid by John A. Ellison and that the tax receipt was issued to W. P. Ellison, administrator, on October 1, 1950. No other taxes were paid on the land until 1936 when the taxes for the year 1930 and subsequent years were paid. ■ The record also shows that no interest on the mortgage was paid until January 25th, 1940. It is conceded that John A. Ellison took whatever crops there were in the years 1928, 1929 and 1930.

We very seriously doubt if the taking of the crops in the years 1928, 1929 and 1930, and the payment of the 1929 taxes without any demand that the tax receipt be issued in the name of the payer, would, standing alone, be sufficient to give notice that the permissive possession by one of several cotenants had become adverse to the others. However, the record shows other acts and omissions on the part of John A. Ellison during this period which are wholly inconsistent with hostile possession on his part. In May 1928, W. P. Ellison filed a final accounting1 and petition for distribution in the estate of John Ellison, Sr. This petition proposed to divide his estate equally among all the heirs of John Ellison, Sr. The hearing on the petition was set for June 16th 1928. John A. Ellison although present at the hearing entered no objections to the proposed distribution. In October 1929 the administration petitioned the county court for license to mortgage the land. The hearing on this petition was had on November 7th, 1929, and John A. Ellison entered no objections to the allowance of the petition. The witness, Brigl, testified that John A. Ellison was present at the hearing upon the petition for distribution and that at that time he heard a conversation between John A. Ellison and the administrator in which they discussed the terms upon which John A. Ellison was to continue to rent the land. Brigl testified as to another conversation between the administrator and John A. Ellison which took place either in 1930 or 1931 and in which the subject of the conversation was the leasing of the land. These acts and omissions directly or indirectly acknowledge that the title to the property was in the heirs of John Ellison, Sr. They completely nullify any possible inferences of hostile possession that might have been drawn from the fact that the cotenant in possession took the crops raised during the three year period. It is our view therefore that the evidence not only fails to show a hostile possession at this time but affirmatively shows that the possession of the land continued to be permissive in character at least until after October 31st, 1930.

This finding disposes of this law suit. The statute of limitations would not commence to run, where the original entry was permissive, until the owners knew the person in possession asserted a hostile claim. McKnight v. Basilides, 19 Wash.2d 391, 143 P.2d 307; Keller v. Harrison, 151 Iowa 320, 128 N.W. 851, 131 N.W. 53; Ann Arbor Fruit & Vinegar Co. v. Ann Arbor R. Co., 136 Mich. 599, 99 N.W. 869, 66 L.R.A. 431. Since a hostile claim was not asserted by word or deed prior to October 31, 1930, the adverse possession, if any, thereafter, by plaintiff and her husband did not continue for the full statutory period of twenty years and was insufficient to bar the defendants from asserting title to the land. J. B. Streeter, Jr., Co. v. Fredrickson, 11 N.D. 300, 91 N.W. 692; Walker v. Sorenson, 64 S.D. 143, 265 N.W. 589. It follows that the decision of the district court dismissing this action was correct.

While it is not necessary to a decision in this case we think it proper to comment upon the evidence as to the character of the possession by plaintiff and her husband in 1931 and subsequent years. The acts of the plaintiff’s husband during this time, in paying all the taxes, all the interest on the mortgage loan, taking all the crops, building a cattle barn, making repairs on the house and well and paying for insurance on the buildings are all consistent with an adverse holding on his part. During this time, however, there are other acts on his part which either directly or indirectly recognize the title of his cotenants. In paying the taxes and interest he never demanded that the receipts be made to him personally but accepted receipts showing payment by W. P. Ellison, administrator. In 1933, he paid an obligation of the estate of John Ellison, Sr. He listed the land with the Production and Marketing Association and named W. P. Ellison, administrator, as owner and John A. Ellison as operator. In 1941, while a county commissioner he entered into a contract with the county for payment of delinquent taxes. This contract was executed in the name of W. P. Ellison and John A. Ellison affixed W. P. Ellison’s name thereto. There is testimony that John A. Ellison between 1947 and 1950 told two people that the land was his. On the other hand the witness Brigl testified that in 1949, plaintiff’s husband told him he was going to take up with the administrator the matter of having the house on the farm painted or re-sided and see if the estate could afford to have the work done. Brigl also said that when, in 1950, he complained that plaintiff’s husband had given an oil lease without authority he said, “I told them I just had one-tenth interest.”

Taking all of the evidence together we do not believe that it is sufficiently unequivocal, clear and convincing to establish that John A. Ellison, at any time, possessed the land in hostility or adversely to his co-tenant brothers and sisters.

The judgment of the district court is affirmed.

. MORRIS, C. J., and 'GRIMSON, CHRIS-TIANSON and SATHRE, JJ., concur.


author: GRIMSON, Judge.

text:
    HEDMAN v. HEDMAN.
    No. 7400.
    Supreme Court of North Dakota.
    Jan. 15, 1954.
    Daniel S. Letnes, Grand Forks, for appellant.
    Degnan, Hager & McElroy, Grand Forks, for respondent.
   GRIMSON, Judge.

This matter comes before this court on appeal from an order modifying a decree of divorce as to’ custody of children.

The testimony shows that the plaintifl and defendant were married September 19, 1943, when defendant was only 17 years old. At that time the plaintiff was working in the shipyards at Duluth. After the birth of the first boy they moved to Clear-brook, Minn, near where plaintiff’s parents lived and where their second boy was born. In 1946 they moved to Petersburg, N. D., where the plaintiff operated a service station in connection with which the defendant operated a small cafe and sold bus tickets. The family lived in the station. During that time some difficulties and misunderstandings seem to have arisen between the parties. Each makes serious accusations against the other. In the evening of the 16th day of October, 1948, the defendant left Petersburg in company with another man who had borrowed plaintiff’s truck for a trip to Larimore. The next morning this man notified the plaintiff where he would find his truck in Grand Forks, and the couple proceeded by bus to Peoria, Ill. At that time defendant’s sister was staying with the plaintiff and defendant in Peters-burg. Defendant left both boys with her husband and her sister and never returned. Within ten days plaintiff started an action for divorce. A judgment by default was entered on December 22, 1948, granting the plaintiff an absolute divorce from the defendant and the custody of their two minor boys, aged three and four years. On due notice defendant, on November 10, 1952, made a motion to the district court for its order to modify the decree of divorce and to grant her the immediate and permanent custody and control of said minor children. Several affidavits were submitted for and against the motion and oral testimony was taken. The court, after due consideration granted said motion and entered an order on March 23, 1953, modifying the original judgment by giving the defendant custody and control of the children during the school year and the father during the vacation period. From that order this appeal is perfected.

The question of where to place the custody of the children of a broken home is one of the most difficult problems that comes before the courts. They are the innocent victims of the unfortunate circumstances in which the parents have become involved. They are usually not of an age where they can appreciate the situation nor decide what is best for themselves. The parents aré prejudiced against each other. Therefore, that decision must be made by the court. The principal concern of the court must be what is best for the children. The interests of. the parents can.be considered only to the extent of how their interests bear on the question of what is best for the children. When, at the time of the divorce, custody of the children has been given to one of the parties, an application by the other for custody must be considered in the light of what has happened since the original decision; the attitude of the parties towards the children during that time and what, if any, changes there have been in the circumstances of the parties since the original order of custody was made. ICeezer on Marriage and Divorce, 2d.Ed., p. 416, lays down the rule for modification of a decree as to custody as follows:

“Broadly stated, the controlling considerations are a change of circumstances, the conduct of the custodial party, the morals of ,the parents, their financial condition, the age of the children and the devotion of either parent to the best interests of the children.”

In Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797, this court held that in a divorce action the custody of the children of the marriage should be awarded “in accordance with the best interests of such children and such an. award is subject to modification from time to time as the best interests of the children may require.” See Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741; Schlak v. Schlak, 51 N.D. 897, 201 N.W. 832; King v. King, 61 N.D. 422, 237 N.W. 854; see also In re Sidle, 31 N.D. 405, 154 N.W. 277; Garrett v. Burbage, 55 N.D. 926, 215 N.W. 479.

“The paramount consideration in determining to whom the custody of a child shall be awarded after a divorce is the wefare and best interests of the child. To that welfare the rights, claims, and personal desires of the parents, and even the wishes of the child, if opposed to that object, must yield.” 27 C.J.S., Divorce, § 309 p. 1170. -
“The father is generally entitled to custody of his infant children. This results from his obligation to maintain, protect, and educate them. This right is, however, neither unlimited nor' inalienable. It continues no longer than it is properly exercised; and whenever abused or whenever the parent has become unfit, by immoral or profligate habits, to have the management and instruction of the children courts of appropriate jurisdiction have not hesitated to interfere to restrain the abuse or remove the subject of such abuse from the custody of the offending parent.” 17 Am.Jur., Divorce and Separation, Sec. 673, p. 511.

The evidence discloses the following record of the parties since their separation.

Defendant claims that on going through Fosston, Minn., the day after she left she wrote her mother who lived near Shevlin, Minn., to get her boys. She claims further that soon after she got to Peoria she wrote to plaintiff telling him where she was and asking for custody of the boys. She claims she gave him a post office box number for use in writing to her. Plaintiff admits getting two letters from her but said she gave no specific address so that he could not answer. She claims to have written several times, and that she also wrote him in care of his mother. No further efforts seem to have been made by defendant in regard to her boys until late in 1951.

After she arrived in Peoria defendant worked in a dry-cleaning establishment for a year, then did some work as á waitress in a restaurant. Finally she bought a restaurant business which she was operating at the time of the trial claiming a net income of between $350 and $400 a month. On June 14, 1952, she married one Mr. Herbert Piercey, an electrician with the Caterpillar Tractor Company, making about $80 per week. They lived at the time of the trial in a three-room apartment in; the City of Peoria. ■

The defendant, now Mrs. Piercey, claims that she first learned of the Hedman divorce when she read in a Bagley, Minn., paper of the plaintiff’s remarriage in the summer of 1951. Then she says she immediately drove in her ’ car to Minnesota to see her children. She found one of the boys with his grandmother, Mrs. .Hedman, the other was away somewhere. She claims she began then. to take steps to get her children back but that she had difficulty in finding where the judgment of divorce had been entered. Such efforts, however, culminated in these proceedings. She again visited in Minnesota and sáw her boys at .the Hedman farm in July, 1952, at which time she had their pictures taken and gave each of them a new swimming suit. She also claims, to have sent them two suits of clothes at the time of their birthdays and that she had given them a couple of dollars and some toys. That is all the showing she has made as to her interest in those boys since she left on October 16, 1948.

The defendant is supported in her application by Mr. Piercey, her present husband. He testified as to his own occupation and earnings and that he is agreeable to having the boys given to his wife and willing to contribute to their support. Defendant’s only other witness is a Mr. Chadwick who has been a boarder in her restaurant for the last year or so and has heard nothing against her. He testified also that the restaurant was first class and was patronized by reputable customers. One Leo Schwabacher makes affidavit in behalf of defendant that she “is of good, moral character and general fitness and that she is the Proprietor of a restaurant in the City of Peoria, Ill., and realizes a moderate profit from said business;' * * * that Doris Piercey has the ability and means to take care of her two children, Carl Hed-man and LeRoy Hedman; that she would be a fit person to have the care, custody and control of said children.”

It thus appears that the defendant, Mrs. Piercey, for almost two years after 'she left the plaintiff paid very little attention to her boys. She probably had no means then to do much for them but she could have shown more interest in them. During that time they were being kept by Mr. Hed-man’s parents on the farm near Clearbrook, Minn. Her own folks lived on a farm near Shevlin, Minn., some 18 miles from plaintiff’s parents’ residence and it appears that they and the Hedmans were friendly and that the Hedmans at least on one occasion took the boys for a visit with their maternal grandparents. There is no evidence, however, that Mrs. Piercey ever inquired of her parents or of her sister with whom she left the boys, as to what had become of them. Now upon her investigation she admits that they were being well taken care of by the grandmother. She does not complain on the treatment they are now receiving in plaintiff’s home. She has never visited them there although the present Mrs. Hedman says she is welcome to do that. She has never talked with the plaintiff about their joint interest in the boys or sought the opportunity to do something for the boys to show her love and affection for them. She is pretty much of a stranger to them. While' Mr. Piercey, her present husband, made a good impression on the trial judge, there is no testimony regarding his character and background except that he was born in Tennessee and served in World War II. There is no showing as to his interest in children nor that he could or would take the place of a father to those boys. They are now eight and nine years old and arriving at the age when a father’s care and attention means so much to them. The defendant herself will not be able to give them her full attention and care. She says that she will hire extra help in the restaurant and be ■ with the boys at all times that they are home from school but she -will keep on running her restaurant. That necessarily will divide her time and attention.

After defendant left the plaintiff kept defendant’s sister for a while fe> take care of the boys and then took them to his mother on a farm near Qearbrook, Minn. He sold out his business at Petersburg in February, 1949, Plaintiff then returned to his mother’s home at Clearbrook, where the boys were staying, and helped with the farming operations until he left for St. Paul where he entered a barber school to learn that trade. Since he got his barber’s license he has been employed as a barber in St. Paul, earning $55 to $60 per week.

On May 12, 1951, plaintiff again married. This time to a women who had divorced two husbands before and was the mother of three girls, aged nine, six and two years respectively. Shortly after that marriage the plaintiff took the boys to the home he and his new wife established in St. Paul and the boys have lived with them since. At first plaintiff lived with his family with,in the city. Then later he bought a new, two-bedroom residence, costing $4,000, in a new housing development at 3962 Stock-dale Drive which is some seven miles out of the city limits where he at the time of the trial lived with his family. On this he owes a mortgage of $2,000 which he pays off at $30 per month. The new Mrs. Hed-man is receiving $20 per week as support for her youngest girl from the child’s father.

The present Mrs. Hedman supports her husband in his desire to keep his boys and promises to táke care of them as well as she does her own girls.

The plaintiff and his present wife are corroborated by the affidavits of a neighbor of the Hedmans where they first lived in St. Paul, to the effect that the present Mrs. Hedman is an “upright and moral woman, is a good housekeeper, has a reputation for sobriety and is a good provider for the children * * * including her stepchildren * * * ” that she “maintains a neat and clean home; attends church regularly and is a fit and proper person to assist the plaintiff with the care, maintenance, ■ education and training of said minor children.” Another neighbor of the Hedmans at their new home says that “The Hedmans’ home is clean and well kept; that the children are kept clean and neat and are well clothed; that the children are well mannered and are considered above average in deportment in and about the neighborhood.; * * * that the present wife of Roy V. Hedman appears to be very fond of the step-children * * * ”. 'A physician makes affidavit that Mr. Hedman has brought the children to him for regular checkups and examinations and that he “verily believes that they are receiving proper and adequate food, and clothing.” A minister makes affidavit that they are regular attendants at church and that the children “appear to be clean and well trained.” Mr. Hedman’s employer makes affidavit that he is regular and dependable in his work and will continue as a steady employee of the shop. The trial judge says: “I am much impressed by plaintiff’s wife who with children of her owm was perfectly willing and seemed anxious to retain defendant’s children in the family home and take care of them.”

Just when the plaintiff took the boys to his parents’ home is not shown but that apparently was before he sold out his business at Petersburg. After that he went to his mother’s place and stayed there where the boys were until he went to St. Paul. After that he testified that he visited with his boys at his mother’s place at Christmas and other holidays until he took them to his new home.

The evidence shows that the plaintiff, father of the boys, has done for them all he could since his first wife left him and that the boys have had satisfactory care during all of that time. His present wife is devoting all her time to taking care of the five children. In their present home the boys have formed new family ties and have the attention and love of the father— the parent they know. The boys’ associations with the stepmother’s daughters appear to be satisfactory. The fact that the home is located in a suburban settlement would tend to give them a better environment than a location within the crowded city. While it is a small home it is new and the boys are given their own room.

The evidence, however, does seem to indicate that the defendant, Mrs. Piercey and her husband now have a larger income than the plaintiff.. That evidence only goes as far .as .to show the income of Mr. and Mrs. Piercey at the present time. There is no showing as to the financial standing of her restaurant business — whether she owes anything on it and what her future prospects with regard to that business may be. Neither is there any showing at all about her husband, Mr. Piercey, as to his financial standing except for the $80 per week that he receives as salary. Their present three-room apartment in the heart of the city would not be a desirable home for the boys. Whether they have the means to buy another home as they say they will is not shown.

Even if the Pierceys are in better financial circumstances than the plaintiff and could furnish the boys a more elaborate home and surroundings that of itself is not sufficient to warrant a change of custody. The richness of the home does not make up for love and affection. There is no certainty that the boys would have in the new home the love and care they now enjoy in the more humble home of the father. It would seem that the certainty of love and care in the father’s home outweighs the material considerations which might be furnished in a greater degree by the mother and her husband.

Under the circumstances it does not seem that tearing those boys out of their new home and from the one parent who has shown them care and attention, and placing them in an unknown home with a mother who left them when they were young and helpless and paid no attention to them for almost two years after she left, is for the best interests of the boys.

In Irvine v. Aust, Mo.App., 193 S.W.2d 336, 342, the court says:

“When a child is legally placed in a home where it receives good treatment and moral training, it should never be removed from that home except for the most cogent reasons. A change in conditions does not necessarily authorize change of custody. To authorize the change of custody, the change in con-. ditions must be such that the welfare of the child requires a change of custody, (Citing cases.)”

In Pastor v. Sharp, 212 Ark. 328, 205 S.W.2d 855, the court sustained the refusal to modify a divorce decree so as to change the custody of a seven year old daughter from father to mother after father and second wife had provided the child with excellent home and proper care for almost three years after mother abandoned the child.

In Leverich v. Leverich, 175 Or. 174, 152 P.2d 303, the plaintiff had procured a divorce from his wife who had left him to live with another man. He was awarded custody of their daughter, eight years old. Three years later, the divorced wife, who had remarried, sought a modification of the decree to give her custody of the child. In the meantime the husband had remarried. His second wife was concededly a good woman and a good mother to her stepdaughter. The Oregon Supreme Court affirmed the denial of the application. See also Bornstine v. Bornstine, 21 Wash.2d 104, 150 P.2d 60; Smith v. Frates, 107 Wash. 13, 180 P. 880, 882; Johnson v. Johnson, 72 Cal.App.2d 721, 165 P.2d. 552.

The district court erred in granting a change of custody at this time. The order of the district court directing a change of custody of the boys of the parties is reversed and the case remanded to the district court with directions to deny the motion for a change of custody arid reinstate the original judgment.

MORRIS, C. J., and CHRISTIANSON SATHRE and BURKE, JJ., concur.


author: MORRIS, Chief Justice.

text:
    STATE v. ELI.
    Cr. No. 254.
    Supreme Court of North Dakota.
    Feb. 3, 1954.

      George E. Duis and E. J. Murphy, Fargo, for defendant and appellant.
    E. T. Christianson, Atty. Gen., Lee F. Brooks, State’s Atty. of Cass County, Fargo, and C. J. Serkland, Asst. State’s Atty., Fargo, for plaintiff and respondent
   MORRIS, Chief Justice.

The defendant appeals from a judgment and sentence entered upon his conviction by a jury of the crime of rape in the first degree. The criminal information charged that on or about the 22nd day of November, 1952, the defendant had sexual intercourse with the complaining witness, a female of the age of fifteen years.

The scope of our review is limited by the inadequacy of the record presented. The defendant attempts to challenge in this court for the first time the sufficiency of the evidence to support the verdict. The sufficiency of the evidence is not before us.

“Where, in a criminal action, the sufficiency of the evidence to sustain a verdict is not challenged either by motion for an advised verdict, or after verdict, by motion for a new trial, the question cannot be considered on appeal.” Syllabus 1, State v. Fahn, 53 N.D. 203, 205 N.W. 67. Also, State v. Mostad, 70 N.D. 73, 291 N.W. 910; State v. McClelland, 72 N.D. 665, 10 N.W.2d 798; State v. Johnson, 68 N.D. 236, 278 N.W. 241.

The defendant challenges the correctness of the trial court’s instruction with respect to the crime of rape in which the court defined the three degrees of rape and in effect instructed the jury that if they found the defendant guilty to their satisfaction beyond a reasonable doubt, they should determine of which degree of rape he was guilty. The defendant points out that rape in the first degree is the only crime at issue and that under the evidence the defendant was either guilty of rape in the first degree or not guilty of rape at all.

We accept the defendant’s version of the evidence, but that version is fatal to ■his assignment of error. The instruction with respect to second and third-degree-rape was wholly superfluous, but that does-not mean that the giving of the instruction amounted to prejudicial error.

“An instruction on an offense lower than that charged need not be given where there is no evidence of the commission of such lower offense, although the giving of such an instruction is not error and should be refused only in exceptional instances.” 23 C.J.S., Criminal Law, § 1288, p. 864.

Where, as in this case, the defendant was-charged with rape in the first degree and the jury found him guilty of the crime-charged, and under the evidence, if guilty at all, he was guilty of the crime charged,, he was not prejudiced by an instruction with respect to the included offenses. 53 Am. Jur., Trial, Section 798, page 592; Annotations, 21 A.L.R. 621, 27 A.L.R. 1100, and 102 A.L.R. 1025; Woods v. State, 208 Ga. 456, 67 S.E.2d 568.

The defendant specified that the court erred in denying his offer of proof wherein-he offered to prove “that the character and reputation of prosecutrix was not good and' she had been known for her running around' and for being of lewd character in her own. community; * * Defendant’s counsel stated that the proof was offered only with a view to affecting the credibility of the prosecutrix.

Prior to the time the offer was made the defendant had been permitted to cross-examine the prosecutrix as to whether or not she had had sexual relations with men other than the defendant. She stated that she had had sexual relations with no other men and only once with the defendant. It also appears from her testimony on direct examination that as a result of the one act of intercourse she became pregnant and had' given birth to a child prior to the trial. In support of his contention that the trial court should not have rejected the offer of proof,, the defendant cites State v. Apley, 25 N.D. 298, 141 N.W. 740, 48 L.R.A.,N.S., 269. That case involves statutory rape of a sixteen year old girl. She had testified that she had had sexual intercourse only once with any one other than the defendant. This court held:

“It was error to exclude cross-examination tending to show that the prosecutrix, about a year before the alleged rape upon her by defendant, had been an inmate of a house of prostitution for a period of three weeks.”
“Such testimony, when elicited under cross-examination of prosecutrix, was admissible as proof of unchastity and immoral character of the prosecutrix as bearing directly upon her credibility, even though she was under the age of consent, and her consent to the commission of the acts charged as constituting the offense was immaterial.”

The limits applicable to the Apley case are well expressed in Rowe v. State, 155 Ark. 419, 244 S.W. 463, 464, wherein it is stated:

“The chastity of the prosecutrix is not in issue in prosecutions under the carnal abuse statute, and while the prosecutrix may be asked, on her cross-examination, about other illicit intercourse, this is only for the purpose of impeaching her as a witness — a circumstance to be considered by the jury in passing upon the credibility of the witness. But as the matter is collateral to the main issue, her answers, whether true or false, conclude the inquiry.”

In this case the defendant seeks to attack the chastity of the prosecutrix by independent testimony which would enbroil the trial court and jury in the determination of an extraneous and collateral issue and thus initiate a rule which could not be logically confined to cases of statutory rape but would extend to other criminal prosecutions as well.

In People v. Gray, 251 Ill. 431, 96 N.E. 268, 273, the prosecuting witness was fifteen years of age. The defendant who was charged with statutory rape insisted that the trial court erred in excluding evidence as to the reputation of the complaining witness for chastity. The court said:

“If the reputation of the prosecuting witness for chastity were to be held admissible as going to her general credibility, then logically such testimony would be equally admissible as to the credibility of any female who might be called to give evidence in any case. The court properly excluded the evidence as to the reputation of the prosecuting witness for chastity.”

This passage was recently quoted in State v. Wolf, 40 Wash.2d 648, 245 P.2d 1009, involving the carnal knowledge of a seventeen year old girl. It was there held that where the prosecution had not attempted to establish previously chaste character on the part of the prosecutrix, evidence of her bad reputation for morality was not admissible to affect her credibility.

In Kearse v. State, 68 Tex.Cr.R. 633, 151 S.W. 827, the court expressed the view that where it was conclusively shown that the prosecuting witness was under fifteen years of age at the time the alleged rape occurred, evidence that she was a lewd woman at that time was inadmissible to affect her credibility. In State v. Hairston, 121 N.C. 579, 28 S.E. 492, and State v. Eberline, 47 Kan. 155, 27 P. 839, a similar conclusion is reached. We have found no case supporting the admission of evidence covered by the defendant’s offer of proof and none has been cited. The trial court did not err in rejecting the offer.

The defendant asserts that the court erred in refusing to give the following requested instruction:

“The jury is further instructed that evidence of the Defendant’s good character alone, is evidence which may create a doubt which the State must overcome with strong and convincing evidence before you could find the Defendant, Sam Eli, guilty of the crime with which he is charged.”

This requested instruction is not a proper statement of the law and no evidence has been pointed out in the record to which it would apply, and in our reading we have found none. The proffered instruction was properly refused.

JJive days before the trial-of the case began-the court heard a motion on the part of the defendant “for an order requiring that a blood test be taken of the child born of (complaining witness), which child was supposedly born as the result of the alleged rape by the above named defendant.” The notice of motion was accompanied by the affidavit of the defendant “That at the. time of the preliminary hearing of the above captioned matter said (complaining witness) accused him of raping her. That he says that these statements are untrue;, that she said as a result of the alleged rape she conceived a child which has, the defendant understands, now been born; that at said preliminary hearing said (complaining witness) further stated that the affiant was the only person that ever had carnal knowledge of her; that said affiant states that he did not have carnal knowledge of said (complaining witness) and therefore wants a blood test taken of her, and also" of her child, -which blood test could-positively prove that said (complaining witness) is lying and that he is not the father of said child, and could further show that he did not have carnal knowledge of said (complaining witness) ; that this affidavit is made in support of a Notice of Motion to the Court on the 14th day of October, 1953, at 1:30 o’clock P.M. to require that blood tests be taken of said (complaining witness) and her child.” This motion was resisted by the state’s attorney’s office and after hearing the arguments of counsel the court ordered:

“That the defendant at this time be denied his motion for an order requiring a blood test to be taken of the child born of (complaining witness), and requiring (complaining witness) to submit to a blood test, from matters and proof heretofore brought before this court.”

The value of blood grouping tests in establishing nonpaternity is recognized in many cases, both civil and criminal. State v. Damm, 62 S.D. 123, 252 N.W. 7, 104 A.L.R. 430, and annotation 447; Shanks v. State, 185 Md. 437, 45 A.2d 85, 163 A.L.R. 931, and annotation 939; Arais v. Kalensnikoff, 10 Cal.2d 428, 74 P.2d 1043, 115 A.L.R. 163, and annotation 167; Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717;. Ross v. Marx, 24 N.J.Super. 25, 93 A.2d 597; Clark v. Rysedorph, 281 App.Div. 121, 118 N.Y.S.2d 103; Wigmore on Evidence, 3d Ed., Section 165(b).

North Dakota has no statute directing or authorizing the taking of blood grouping-tests and the introduction of the results of such tests as evidence in courts of law but if we assume that the court has power in the absence of statute in a proper case to-direct the taking of blood grouping tests,, we cannot here determine that the trial court erred in refusing the defendant’s request and denying his motion upon the-record presented. This is a criminal case. The defendant has, asked for blood tests of the child and possibly of the mother. He has not offered to. submit himself to the test and the court could not require him to do. so. He -has .not asked that the court order the tests to be taken of all three — the prosecuting witness, the child, and himself. A test of the child alone or of the mother and chiid without also having a blood test of the defendant would prove nothing.

The record presents another, complication with respect to the defendant’s motion. It does not show when the child was born, whether it was within the jurisdiction of the court, or even that the child was living at the time the motion was heard. At the trial on October 19, 1953, defendant’s counsel, on-cross-examination, asked: “You no longer have the child?” To which she replied: “iNo.” Neithe'r ■ counsel made further inquiries regarding the whereabouts of the-child. -The record before us nowhere discloses the date of birth. Under the showing made by the defendant we cannot say that the trial court erred in denying his motion. We find no reversible error in the record. The testimony of the complaining witness and the defendant is sharply conflicting. She positively testified as to the facts of his guilt. He as positively denied those facts. The jury determined that he was guilty. That determination must stand. The judgment appealed from is affirmed.

BURKE, SATHRE, CHRISTIANSON, and GRIMSON, JJ., concur.