author: JOHNSON, Judge.

text:
    Elvira MOE, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant. Ronald MOE, by Mother and Guardian ad litem, Elvira Moe, Plaintiff-Respondent, v. P. J. KETTWIG, Defendant-Appellant.
    Nos. 7452, 7453.
    Supreme Court of North Dakota.
    March 3, 1955.

      Quentin N. Burdick, Fargo, for defendant-appellant.
    Lanier, Lanier & Knox, Fargo, for plaintiff-respondent.
   JOHNSON, Judge.

These two cases arise out of a collision between the defendant’s automobile and a bicycle being used by Ronald Moe, a minor. The collision took place on September 2, 1952, between the hours of two and three-thirty p.m., on a graveled road just west of the city of Fargo.

Elvira Moe, the mother of Ronald Moe, brought an action against the defendant for damages incurred by her for hospital, doctor and other expenses resulting from the injuries sustained by her son, Ronald Moe, in the accident.

Ronald Moe, by his mother as his guardian ad litem, brought an action for damages for injuries which he sustained in the accident. He and two other boys were riding bicycles in a westerly direction on a public highway, known as Twelfth Avenue North, extending just beyond the corporate limits of the city of Fargo. The defendant was driving in the same direction and overtook the boys, and in attempting to pass them, collided with the bicycle ridden by Ronald Moe, resulting in injuries to him.

The defendant was a resident of Ramsey County, North Dakota, and the two cases were consolidated for trial and tried to a jury in Ramsey County, North Dakota. Separate verdicts were rendered in each case, in favor of the plaintiffs. Judgments were entered on the verdicts. Thereafter the defendant in both cases moved for' a judgment notwithstanding the verdict or in the alternative for a new trial. The motions, were denied by the trial court. The defendant appeals from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial and from the judgment entered in each case. These cases were argued together in this court. Both actions involve the same facts.

Elvira Moe, in her complaint, alleges that the defendant was negligent; that his negligence resulted in injuries to her minor son, Ronald Moe, and that as a result of said injuries, she incurred hospital, medical and other expenses amounting to several hundred dollars, and prayed for judgment to cover the same.

The defendant answered, admitting that the accident occurred on the 2nd day of September, 1952, in Cass County, North Dakota, between his automobile and a bicycle ridden by Ronald Moe. He alleges that the collision and the resulting damages were “proximately caused and contributed to by the negligence of Ronald Moe in the operation of his bicycle” and asked for a dismissal of the action.

In the action of Ronald Moe, by his mother as his guardian ad litem, the plaintiff alleges that the defendant was negligent; that by reason of his negligence, and as the proximate cause thereof, the defendant struck Ronald Moe, causing him serious and permanent injuries; that the plaintiff suffered a transverse fracture of the middle right femur causing two inches of overriding; that on the 3rd day of September, 1952, the day after the accident, the fracture was set and a plaster cast applied; that on the 15th day of September, 1952j due to the bad breakage, the fracture had slipped and it was necessary to perform surgery on the leg of the plaintiff and to reduce the fracture and insert a four-screw plate in the leg, and a new plaster cast was applied;, that the plaintiff remained in the cast until the 20th day of October, but thereafter he was pn crutches for some time; that by reason of the fracture and the operation, the plaintiff suffered and continued to suffer great pain and misery, and prayed for damages for the injuries and the pain and suffering connected therewith.

The defendant answered admitting that the accident took place on the 2nd day of September, 1952; in Cass County, between an automobile owned by him and a bicycle ridden by Ronald Moe; that the collision and the resulting damage were "proximately caused and contributed to by the negligence of Ronald Moe in the operation of his bicycle”, and asked for a dismissal of the action.

The jury rendered a verdict in favor of the plaintiff, Elvira Moe, for the amount of the doctor, hospital and other bills resulting from the injuries to her son, Ronald Moe.

In the action of Ronald Moe, by his mother as his guardian ad litem, the jury rendered a verdict in his favor for ten thousand dollars.

In connection with the motion for judgment notwithstanding the verdict or a new trial, before the trial court, in each case, the defendant set forth specifications and assignments of errors relating to :

1. Insufficiency of the evidence to justify the verdict of the jury.

2. Errors of law occurring at the trial.

3. Excessiveness of the verdict.

The assignments and specifications of error were identical on the motions in both cases, except that the excessiveness of the verdict does not apply in the case of Elvira Moe. On the appeal in these cases, the denial of the' defendant’s motions for judgment notwithstanding the yerdict, or in the alternative, for a new trial, and that the verdicts are against the law, are assigned as additional errors. The assignment of error that the verdicts are against the law is a mere conclusion which adds nothing to the others set forth.

We will first dispose of the assignment of error as to the insufficiency of the evidence to justify the verdicts of the jury. In this connection the defendant and appellant asserts that there is no competent evidence in the record of excessive speed, or that the defendant failed to keep a lookout, and that the only evidence of speed shows that the defendant was driving forty to forty-five miles per hour; that sixty miles is prima facie lawful; that the defendant failed to keep his car under control, and that there is no evidence to show that he did not exercise reasonable care under the circumstances. This assignment of error makes it necessary to set forth the -facts somewhat in detail.

On the afternoon of the date set forth, somewhere between the hours ■ of -two and three-thirty p. m., three boys, Robert Rugro-den, Howard Gensler and Ronald Moe, were riding two bicycles on a straight, level road, which runs west from the city of Fargo. They were proceeding in a westerly direction. Rugroden was propelling himself and his friend, Howard Gensler, who was on the cross bars of Gensler’s. bicycle. Ronald Moe was riding his brother’s bicycle alone. The accident took place about seven tenths of a mile west of the city limits of the city of Fargo. The driving surface .of the road was of gravel, and was from- twenty-four to twenty-six feet wide. At about the time the boys were riding their bicycles on this road, the defendant was driving his automobile thereon, also in a westerly direction.

Just prior to the time the defendant saw the boys he had passed two trucks, driving in a westerly direction. He noticed the two bicycles with the three boys ahead of him; He claims that he touched arid sounded his horn “about three blocks from the boys.” He says one of the boys was riding in the middle of the road, and that as he touched his horn all three boys turned their heads and looked back. '

Robert Rugroden states that when he first noticed the car of the defendant, it was about two blocks away. The boy in the middle of the road later turned out to be Ronald Moe. The defendant claims that the boy in the middle of the road looked around when he was more than a block away. Ronald Moe tried to pass the other two boys oh the bicycle being propelled by Rugroden and on which Howard Gensler was riding. All three boys state positively that they did not hear the defendant sound his horn; that he did not sound his horn until “just before he hit him (Moe)”. It was only a matter of a. split second or so after the horn was sounded until the collision occurred.

The defendant testifies that after he had sounded his horn and noticed the boy in the middle attempting to pass the other boys, he thought everything was clear to go to the left side of the road. Just about the tíme that he was upon the boys, Ronald Moe angled to the left and the middle of the front bumper of the defendant’s car hit him and his right leg was broken. When Ronald Moe attempted to pass Rugroden and Gen-sler, they were two or three feet from the right shoulder of the road. At the time of the collision the defendant estimated that he was going from forty to forty-five miles per hour. He admits that he was not watching his speedometer. There were skid marks on the road estimated at from four to six feet long leading back from the point of impact between the car ánd the bicycle of Ronald'Moe. Ronald Moe says that ’he tried to pass the other boys, but does not remember anything more.

The defendant admits that he saw a boy in the middle of the road. He admits that he saw him some distance before he was upon him. The jury, in considering the evidence, apparently believed the plaintiff, Ronald Moe, and his witnesses, that the defendant did not sound his horn until he was almost upon Ronald Moe. The two boys with him indicate that just prior to the collision, Ronald Moe angled to the left, after having attempted'to pass them. Before the accident he had been behind Rugroden and Gensler. The evidence may well have been interpreted by the jury as indicating that Ronald Moe, in trying to pass the other two boys, being unable to make it, pulled further to the left in an endeavor to procure clearance to pass them and at that moment was hit by the defendant. The jury verdicts in these cases have determined that Ronald Moe was not guilty of contributory negligence.

Ronald Moe admits that he was pretty much in the middle of the road when he was hit. He denies that he heard the car behind him. There is no testimony that Ronald Moe either heard, or, if he heard, paid any attention to the fact that Robert Rugroden told him that there was a car coming from behind. If the jury believed that Ronald Moe had been warned by his companion, Rugroden, nevertheless it did not find him guilty of contributing to his injuries. Robert Rugroden admits that he saw the car behind them, and when asked: “Q. And did Ronnie do anything when you said there was a car coming? A. No, he started to pass.” The evidence does not show that Ronald Moe was aware of the defendant’s car until it hit him.

The defendant was watching the boys. He did not slacken his speed until the boy on the bicycle in the middle of the road (Ronald Moe) made a turn to the left, and at that time, by his own estimate, he was going between forty and forty-five. He claims that Ronald Moe, riding in the middle of the road, looked around when he was a block behind the boys. He thought everything was clear. He was then asked:

“Q. Then he (Ronald Moe) made a column left like we used to do in the Marine Corps and headed right to the other side? A. That is right.

“Q. No angles? A. No angles.

“Q. He just turned that bicycle and went right over to the other side?”

The jury’s verdict would indicate that it did not believe this testimony of the defendant and the evidence is such that it would be warranted in not doing so.

The defendant also testified: ‘T didn’t have time to do anything but head for the ditch, hit the horn and hit the brakes * * This testimony indicates that he was upon the plaintiff before he attempted to get his car under control to avoid a collision.

The appellant assigns error by reason of the fact that one of the boys testified that the appellant was going “fast” and the other that defendant was going between forty and fifty miles per hour. We find no error in the admission of this testimony. The defendant himself testified that he was driving approximately forty-five miles per hour, but does not fix his rate of speed accurately because he had not looked at his speedometer. He merely estimates his speed. The facts show that in a space of approximately five hundred yards he had passed two large trucks, which in itself would be quite convincing evidence that he was going at least forty-five miles per hour. Every member of the jury would have personal knowledge, based upon experience and observation, that large trucks leaving a city would not loiter along the road after getting beyond the city limits under ordinary circumstances. From this testimony the jury could readily infer that the defendant was traveling at no less a speed than was estimated by the boys. The evidence of the boys as to speed is, therefore, not the only evidence as to that in this record. If there was any error in the admission of this testimony, it was error without prejudice because the defendant himself virtually corroborates the testimony of the two boys who testified as to his speed.

There is no evidence in the record except that of the defendant, that Ronald Moe, the boy in the middle, looked around.

There is a square conflict in the evidence as to whether or not the defendant sounded his horn to give the boys warning. The evidence indicates that he assumed, because the boy in the middle was attempting to pass the other two boys, that everything was clear. Apparently on that assumption he did not slacken his speed so as to obtain better control of his car.

The jury believed the version of the evidence presented by the plaintiff, Ronald Moe, and his witnesses. It did not believe the defendant'. With the state of the evidence in conflict as to negligence and contributory negligence, it was for the jury to determine the question of negligence and contributory negligence. Larson v. Farmers’ Elevator Co., 63 N.D. 396, 249 N.W. 116. The jury must have believed that the defendant did not give proper warning.

There is no testimony in the record to show the speed limit on the highway at' the point of the accident. The pleadings assert that the speed limit was only twenty-five miles per hour at the place of 'the accident. There is no testimony or proof of that fact. In absence of such proof, we assume that the speed limit on the highway at the point of the accident was governed by our statute which makes certain speed limits prima facie lawful. Section 39-0902 of the NDRC 1943, as amended by subsection 8 of the 1953 Supplement. These speed limits, however, are not absolute, as the statute provides that:

“In any case when the speed limitations provided for in the foregoing subsection shall be unsafe, it shall be unlawful to operate a motor vehicle at such speed.”

Furthermore, under Section 39-0901 of the NDRC 1943, it is incumbent upon a driver of a motor vehicle to drive “at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and any other conditions then existing.” (Emphasis supplied.)

It must be remembered in these cases the verdicts of the jury have resolved the conflict in the evidence. These verdicts having been rendered, the conflict in the evidence must be resolved by this court in favor of, rather than against, the verdicts. Rober v. Northern P. Ry. Co., 25 N.D. 394, 419, 142 N.W. 22, 28. Where the evidence is conflicting, and there is evidence legally sufficient to sustain the verdict, it is conclusive on appeal. Griffin v. Implement Dealers’ Mutual Fire Insurance Co., 64 N.D. 146, 250. N.W. 780.

Negligence and contributory negligence are questions of fact for the jury, and it is only when the evidence is without material conflict, and is such that all reasonable men must draw the same conclusion therefrom that the question is one for the court. Here the question of negligence of the defendant and contributory negligence of the plaintiff, Ronald Moe, in view of the state of the evidence, was clearly for the jury. Rober v. Northern P. Ry. Co., supra. Where the evidence is in conflict and reasonable men might draw different conclusions therefrom, this court, on appeal, will disturb neither the verdict of the jury based on such evidence nor the order of the trial court denying motions for judgment notwithstanding verdict or for new trial on ground of insufficiency of the evidence. Reuter v. Olson, N.D., 59 N.W.2d 830; Clark v. Josephson, N.D., 66 N.W.2d 539.

This disposes of the assignments of error based on the insufficiency of the evidence. There was evidence in the record from which the jury could determine that the defendant and appellant, under all the circumstances, was not keeping a proper lookout; that he did not give warning, or that it was not a sufficient warning, and that he, perhaps, was driving too fast under the circumstances, although he may have only been driving forty-five miles per hour according to his. own testimony. All questions of fact have been resolved favorably to the plaintiffs.

The verdicts of these cases, therefore, based on the conflicting evidence in the record, will not be disturbed in absence of legal error.' The only assignments o'f errors of law that may have some merit are those in which it is claimed the court erred and misdirected the jury in its instructions in these cases.

The answer in both cases pleads the defense of contributory negligence of the plaintiff, Ronald Moe. It is an affirmative defense. Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774. The burden to prove it is on the defendant. Sanders v. Reister, 1 Dak. 151 (145), 46 N.W. 680; Rober v. Northern P. Ry. Co., 25 N.D. 394, 142 N.W. 22; Mares v. Northern Pacific R. Co., 3 Dak. 336, 21 N.W. 5, affirmed; Northern Pac. R. Co. v. Mares, 123 U.S. 710, 8 S.Ct. 321, 31 L.Ed. 296.

The appellant complains that the court erred and misdirected the jury in the following instruction: “To determine whether or not the plaintiff Ronald Moe was guilty of contributory negligence in this case, his conduct must be measured by what a person of his age and capacity under the same circumstance^ and surroundings would have" doné, and if his conduct at the time of the injury was contributory negligence, wfien measured by the rules that I have heretofore stated to you, and if such contributory negligence on the part of the plaintiff, Ronald Moe, was the proximate cause' of the injury, then you should find for the defendant for the dismissal of both actions.” (Emphasis supplied.) The first part of this instruction dealing with the conduct and measure of care required by a minor was approved in the case of Enget v. Neff, 77 N.D. 356, 360, 43 N.W.2d 644, 646. The specific misdirection contended for is the wording, “if such contributory' negligence on the part of the plaintiff, Ronald Moe, was the proximate cause of the injury.” Just prior to this instruction, the trial court defined contributory negligence as follows : “Contributory negligence in legal signification is such an act or omission on the part of the plaintiff, Ronald Moe, amounting to a want of ordinary care, as, concurring or cooperating with the negligent act of the defendant, if. you find the defendant was negligent, is the proximate cause of the occasion of the injury complained of.”

The measure of care imposed upon the minor, Ronald Moe, was properly to be measured by what a person of his age, capacity, intelligence and experience, under the same circumstances and surroundings would have done. The plaintiff, Ronald Moe, was thirteen years of age at the time of the accident. -He had not made good progress in school. Twice he had failed to pass his grade. He admitted that school was difficult for him. The jury in considering the evidence had a right to apply the standard of care to his conduct on the basis of the rule in the case of Enget v. Neff, supra, and we must assume that they did do so.

Where the plaintiff’s own negligence contributes proximately to the injury, he is not entitled to recover. Sherlock v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, 24 N.D. 40, 138 N.W. 976; Engen v. Skeels, 60 N.D. 652, 236 N.W. 240; Stelter v. Northern P. R. Co., 71 N.D. 214, 299 N.W. 310.

The trial court in outlining the issues before the jury charged with reference to negligence and contributory negligence, as follows:

“You will first determine whether the plaintiff, Ronald Moe, has proven by the degree of proof required that the collision between defendant’s automobile and his bicycle and the injuries resulting to him and the damáges he claims to have sustained as the result thereof were proximately caused by the negligence of the defendant. You will next determine whether the plaintiff, Ronald Moe, himself was negligent, and if you find that he was, whether his negligence was the proximate cause of the injuries he sustained.”

The principal objections set forth by the appellant as errors in the instructions center around the statement: “whether the plaintiff,, Ronald Moe, himself was negligent and if you find that he was, whether his negligence was the proximate cause of the injuries he sustained.” The trial court used this or similar language in five different parts of the instructions to the jury dealing with contributory negligence on the part of said plaintiff. These instructions were erroneous. Anderson v. Jacobson, 42 N.D. 87, 92, 172 N.W. 64, 66; Clark v. Feldman, 57 N.D. 741, 224 N.W. 167; Engen v. Skeels, 60 N.D. 652, 236 N.W. 240.

It now becomes necessary to determine whether the erroneous instructions were prejudicial in view of other and further instructions given by the court that were correct. ' .

With reference to the claims of the defendant, it charged: “The defendant claims that the plaintiff Ronald Moe was guilty of contributory negligence and that such negligence oh the part óf .said plaintiff was the proximate cáuse of his injuries.” Immediately following the .above statement, the. court further charged the jury as follows : “Contributory negligence in legal signification is such an act or omission on the part of the plaintiff, Ronald Moe, amounting to a want of ordinary care, as, concurring or cooperating with the negligent act of the defendant, if you find the defendant was negligent, is the proximate cause or occasion.of the injury-complained of.”. While this instruction is-not in the exact words of some of the North Dakota cases, it appears to be a sufficient definition of contributory negligence In the case of DeHoney v. Harding, 300 F. 696, 699, the Circuit Court of Appeals of the Eighth Circuit, in a case that arose in the city of Fargo, used very similar language as that quoted from the charge in the case at bar. It said contributory negligence has been defined as follows: . '

“ ‘Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.’ Murray v. Southern Pacific Co., 9 Cir., 236 F. 704, at page 706, 150 C.C.A. 36, 38.”

In the early part of the charge the court had instructed the jury as follows: “If you should find that the evidence is so evenly balanced on both sides that you are unable to determine on which side it preponderates, then your verdict should be for the defendant for the dismissal of the actions.”

Again thereafter, the court in its instructions to the jury outlined two forms of'verdict for each case and applied them to the two actions, using the following language: “This is the form of verdict you will return if you find that the defendant was negligent and' that his negligence was the proximate cause of the injury, Unless you further find that the plaintiff, Ronald Moe, was guilty of contributory negligence which proximately caused ■ or contributed to his injuries.”

In the'other form of verdict the court charged the jury as follows: “ ‘We, the jury in the above entitled action, find, for the defendant and for the dismissal of the action wherein Ronald Moe is plaintiff by his guardian ad. litem.’ This is the form of verdict you will return if the plaintiff has failed to prove by- a fair preponderance of the evidence that the defendant was- negligent and that his negligence was the proximate cause óf tlie injury;" of, that the plaintiff was guilty of contributory negligence which proximately caused or contributed to his injury.” Similar instructions with reference to the action of Elvira Moe were given.

Thus the court'; in dealing with the verdicts, four times instructed the jury that they, could not find for the-plaintiff,. Ronald Moe, if he had proximately caused or contributed to his injury. These instructions were correct. Prior to outlining the verdicts the court correctly, stated- the rule with reference to contributory negligence as follows: “* * * it would be your duty to find for each of the plaintiffs, unless you further, find that the plaintiff, Ronald Moe, is guilty of contributory negligence which proximately caused or contributed to his injuries.” This and the four statements with reference to contributory negligence as contained in the court’s instructions dealing with the verdicts, were the last impressions left with the jury with reference to the law on contributory negligence.

In the case of Anderson v. Jacobson, supra [42 N.D. 87, 172 N.W. 66], this court, in dealing with a similar instruction on contributory negligence, said:

“In a portion of the instructions complained of, the court directed that if the jury should find ‘by reason of said acts the plaintiff sustained an injury, and that said act was the proximate cause of the injury, such would constitute contributory negligence, and the plaintiff could not recover.’ The instruction was not correct, in that it stated in substance that contributory negligence, sufficient to deprive the plaintiff of the right to recover, must have been the proximate cause of the injury. Such is clearly not the law, but it is by no means apparent that the defendant was prejudiced by the erroneous statement. We do not think it could have misled the jury, since in the immediately following paragraph the jury was again told:
“ ‘If you so find that the plaintiff was guilty of contributory negligence, or, in other words, that the plaintiff committed some negligent act which the defendant sets up, and to which I have called your attention, then the plaintiff cannot recover, though you may find that the defendant himself was guilty of negligence.’ ”

The jury in the case at bar had been informed that contributory negligence of the plaintiff must either have proximately caused the injuries or contributed thereto, and that in such event the plaintiff was not entitled to recover. The court further instructed the jury as follows: “The plaintiff, Ronald Moe, and the defendant have each charged each other with being negligent, and I charge you that you are not permitted to compare the negligence, if any, of the plaintiff, Ronald Moe, with the negligence, if any, of the defendant, nor to' apportion the same. If you find that either the plaintiff, Ronald Moe, or the defendant was negligent, and the other was not, your verdict will be in favor of whichever of these two parties you find was not negligent, except, if you find that both were negligent, then your verdict will be for the defendant for the dismissal of both complaints.”

The instructions of the court must be considered in their entirety. Error cannot be predicated on parts thereof where the charge as a whole is not subject to the objection made to a part thereof. Buchanan v. Minneapolis Threshing Mach. Co., 17 N.D. 343, 116 N.W. 335. When isolated sentences containing an erroneous statement of the law, but which, when taken with the rest of the charge, cannot have misled the jury, the error is harmless and does not warrant a reversal. McBride v. Wallace, 17 N.D. 495, 117 N.W. 857; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Ferderer v. Northern Pac. Ry. Co., 77 N.D. 169, 42 N.W.2d 216.

An alleged erroneous statement contained in the court’s instructions must be considered in connection with its context and the instructions as a whole. Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335.

The instructions must be considered as a whole and if, as a whole, they state the law correctly, there is no reversible error, although a part of the instructions considered alone may be erroneous. Buchanan v. Minneapolis Threshing Mach. Co., supra; Carpenter v. Village of Dickey, 26 N.D. 176, 143 N.W. 964; Wyldes v. Patterson, 31 N.D. 282, 153 N.W. 630; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11.

The appellant also claims that the court misdirected the jury by the following instruction: “You are instructed that since children have a right to ride bicycles upon the highways, motorists should use reasonable care to watch out for such riders, and motorists approaching such riders are under a duty of reasonable care not to injure them. The exercise of ordinary oare requires a motorist to give warning of his intention to pass children on bicycles and then to allow sufficient room to pass safely.”

The italicized portion, the appellant contends, is an erroneous statement of the law. He does not cite any authority for his contention. He merely states that the statement is erroneous. It was the duty of the appellant to give warning of his approach, or his intention to pass. Section 39-1006 of the NDRC 1943. The verdicts of the jury indicate that it thought the appellant had not done so. This instruction is isolated from its context. The court in this connection further stated: “Where a motorist sees boys on a bicycle in front of him, or somewhere near the path which his automobile will traverse, it is his duty to drive no faster than is reasonable under all the circumstances then prevailing and to keep a lookout for such boys.”

The law requires a- motorist to keep a proper lookout. The appellant admits that he saw the boys some distance ahead. The evidence indicates that he had ample time to get his car under such control as to enable him to safely pass the boys. He was required to drive “at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic * * Section 39-0901 NDRC 1943. The jury must have felt that he had failed in this respect. We find no error in this instruction when considered in connection with all the other instructions given by the court.

The rule here applicable is well stated in syllabus 14, Wyldes v. Patterson, 31 N.D. 282, 284, 153 N.W. 630, 631, as follows:

“The charge of a court to a jury is entitled to a reasonable interpretation. It is to be construed as a whole, in the same connected way in which it is given, and upon the presumption that the jury did not overlook any portion that gave due weight to it as a whole. If, when so construed, it presents the law fairly and correctly, and in a manner not calculated to mislead the jury, it will afford no ground for reversing the judgment, although some of its expressions if standing alone, might be regarded as erroneous, because there may be an apparent conflict between isolated sentences, or because some one of them, taken abstractly, may have been erroneous.”

The burden resting on the appellant is not sustained by showing an error, but he must show that the error was prejudicial. Where an appellant seeks to have a verdict of a jury in a civil case set aside because of erroneous instructions, he must establish affirmatively by the record presented to the appellate court, that, under the evidence, the jury might, and probably would have returned a different verdict if the erroneous instructions had not been given. State v. Van Horne, 71 N.D. 455, 2 N.W.2d 1, 2. In this case the court said:

“It is a well-settled rule of general application that ‘ “An appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal is taken. In other words it will be presumed on appeal, in the absence of a contrary showing, that the trial court acted correctly and did not err. Indeed error is never presumed on appeal, but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or as sometimes stated, the burden of showing error affirmatively is upon the appellant or plaintiff in error.” 4 C.J. 731-733. See, also, Erickson v. Wiper, 33 N.D. 193, 222, 157 N.W. 592.’ ”

See Section 28-0742 of the NDRC 1943. This rule was again repeated in different language in the opinion written after filing of petition for rehearing.

The appellant in these cases has failed to sustain the burden imposed upon him. The record-does not contain, except for the erroneous instructions mentioned, anything that would indicate that the jury might or probably would have returned a different verdict. The appellant has failed to point out wherein the claimed errors resulted in prejudice to him under all the evidence in this case. We do not believe that the erroneous instructions given misled or confused the jury in dealing with the facts in these cases. The burden, resting upon the''appellant, is not sustained by showing the error. The verdicts in these cases are based upon sufficient evidence. The erroneous instructions, when taken and considered in connection with other instructions set forth in the last part of the charge defining contributory negligence, which are correct, and when also taken into consideration with the definition of negligence given by the court, are, when the whole charge is read together, and given a reasonable interpretation, not misleading or confusing. If the objectionable portions of the instructions were all that had been said by the trial court regarding contributory negligence, there would be merit to the criticism leveled at the instructions thus given. But when the instructions are considered in their entirety, and ym must assume that the jury in arriving at their verdicts in these cases did consider the instructions in their entirety and as a whole, we cannot say that they were prejudicial.

The jury was instructed that if it believed that the' plaintiff, Ronald Moe, had contributed to his injuries, that it must find for the defendant. See Swan v. Dailey-Luce Auto Co., 221 Iowa 842, 265 N.W. 143, 145, where certain instructions concerning contributory negligence were under attack. After reciting the instructions as given, the court said: “We think that, when these instructions are construed together, they fairly and correctly instruct the jury upon the question of contributory negligence.” The court also said: “ ‘It is well stated (the rule as to contributory negligence) in Banning v. Chicago, R. I. & P. R. Co., 89 Iowa 74, at page 81, 56 N.W. 277, 279, where we said: “If the injured party contributed in any way, or in any degree directly to the injury, there can be no recovery.” * * * The thought involved in the use of the term “proximately caused” is that there must be a causal relation between the plaintiff's negligence'and the injury, * * ” The court further indicated that the instructions were not considered as model definitions of contributory negligence, but felt constrained to hold that, when considered together and in'connection with the instructions on negligence, they sufficiently advised the jury as to the meaning of contributory negligence and were, therefore, not- sufficiently prejudicial to constitute error.

We have carefully considered the entire instructions given by the trial court and, while isolated portions thereof were .erroneous, the jury had before it instructions that correctly advised it as to the meaning of negligence and contributory negligence and when the entire instructions are studied in the light of the evidence, we cannot say that they were erroneous and constitute prejudicial error.

No errors of law occurred in the trial requiring that the verdicts be set aside or that a new trial be granted.

We will now deal with the alleged ex-cessiveness of the verdict in the case of Ronald Moe by his guardian ad litem.

The jury heard all of the evidence in the case and had an opportunity to observe all the witnesses except those that testified by deposition. Dr. Joel Swanson testified by deposition as to the injuries of the plaintiff, Ronald Moe. Pie is a specialist in orthopedic surgery. He was Ronald Moe’s doctor. No other doctor was called to testify concerning the injuries of the plaintiff, Ronald Moe.

The trial court was of the opinion that the jury was in a far better position than it was to correctly and accurately estimate and fix the damages of the plaintiff, Ronald Moe, and to determine what would reasonably compensate him for the injuries he sustained. It felt that the verdict of the plaintiff, Ronald Moe, was not tainted with passion and prejudice.

The doctor’s testimony shows that the plaintiff, when he first examined him on the 2nd day of September 1952, was in moderate shock; that he had a transverse fracture of the middle third of his right femur with two inches of overriding of the bone, which the doctor explained. He said that at the fracture line the muscles had pulled the bones so that the ends were overlapping two inches. He was asked the treatment that was necessary in this connection and he stated that the overriding was corrected by traction and a plaster . cast applied. This was done on September 3, Í952. On September 15 an x-ray was taken to check the fracture and it was found that the fracture had slipped arid because of the overriding that was again present, it was necessary to have an “open reduction and plating of the fractured femur.” This involved surgery to the bone. The ends of the bone were brought together and fastened with a metal plate. It was explained that the metal plate is usually a permanent condition. It was further explained that doctors generally hesitate to put on an internal fixation plate and screws in the fractures of children, “because of the possibility that it might stimulate the bone.” He explained that it had been found experimentally and also clinically that the introduction of foreign material into the growing bone tends to stimulate the bone to lengthen, so that under ordinary conditions it is sought to reduce a fracture without surgery. On the 22nd day of October, 1952, the boy went home. Five days later he reported to the doctor’s office using crutches, and he was on crutches until on or about the first day of December, 1952. In the meantime he took physical therapy treatments to further facilitate the improvement of his injured right leg. On the date of the trial the doctor inade a measurement of the legs of Ronald Moe and found that the right leg was about a quarter of an inch longer than the left leg, but indicated that that was not unusual. But he recommended that the leg length of the boy be measured every six months to determine whether it would approach the place where he might develop a disabling, leg limp and require measures to .retard the growth. The doctor explained the medical practice by which that could be accomplished.

From this it would appear that the injuries of Ronald Moe were of considerable duration; that they involved considerable pain .and suffering, surgery, medical treatment by way of physical therapy after the surgery, and that the possibility of the insertion of the metal plate screwed into the bone might stimulate the growth thereof in a young boy which would require examination every six months to determine whether such stimulation of the bone growth was taking place, so that effective, treatment could be administered if the plate was stimulating the growth of the bone.

When all of these things are considered, it cannot be said that the verdict was excessive or that the jury was influenced by passion or prejudice in arriving at its verdict in favor of Ronald Moe. In this connection it must be remembered that this collision and the injuries resulting to Ronald iMoe occurred in Cass County, 'North Dakota; that the actions were tried, in Devil's Lake, Ramsey County, North Dakota, where the defendant had been a long time resident. The defendant, therefore, had the advantage of having these two cases tried and heard in his own community, while the plaintiffs were entire strangers therein. The verdict cannot be said as a matter of law to have been excessive. See Loveland v. Nieters, N.D., 54 N.W.2d 533.

We find no error in the record that would warrant a reversal of the judgments for the plaintiffs. The orders, denying judgments notwithstanding the verdicts or in the alternative for a new trial and the judgments in both cases are affirmed.

BURKE, C. J., and GRIMSON, SA-THRE and MORRIS, JJ., concur,^


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Ernest F. WALTERS, Montez Shortridge, and Christopher LeGear, Appellants, v. Walter KAUTZKY, Mark Smith, and Peter Hansen, Appellees.
    No. 02-1177.
    Supreme Court of Iowa.
    April 7, 2004.
    Rehearing Denied June 2, 2004.

      Ernest F. Walters, Christopher LeGear, and Montez Shortridge, Fort Madison, pro se.
    Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellees.
   CARTER, Justice.

Ernest F. Walters, Christopher LeGear, and Montez Shortridge, inmates of the Iowa State Penitentiary, claim to be third-party beneficiaries of a contract between the Iowa Department of Corrections and the state public defender providing that the latter will provide limited legal assistance to prison inmates. They assert that their rights under the contract have been denied. They also claim a right to relief on the ground that the legal assistance provided to them fails to satisfy the constitutional mandate for access to the courts imposed by the Fourteenth Amendment to the federal constitution. Although the named defendants are Walter Kautzky, Mark Smith, and Peter Hansen, we will only consider Hansen to be sued in an individual capacity. We must consider the other two defendants as sued as representatives of the Iowa Department of Corrections and the office of the state public defender.

After reviewing the record and considering the arguments presented, we conclude that summary judgment was proper for the contract claims of all plaintiffs. Summary judgment was also proper for the constitutional claims of plaintiffs Shor-tridge and Walters. However, there are genuine issues of material fact surrounding the constitutional claim of plaintiff LeGear that precludes the granting of summary judgment on that claim. Consequently, we reverse the judgment of the district court with respect to LeGear’s constitutional claim and remand the case for further proceedings.

The Supreme Court in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), determined that a prison system may satisfy the constitutional requirement of court access for prison inmates by utilizing various devices, including prison libraries, jailhouse lawyers, private lawyers under contract with corrections authorities, or some combination of those or other devices. Bounds, 430 U.S. at 830-31, 97 S.Ct. at 1499-1500, 52 L.Ed.2d at 84.

On July 1, 2000, the state public defender (SPD) contracted with the Iowa Department of Corrections (IDOC) to provide legal assistance to prison inmates. Pursuant to that agreement, the matters for which advice was to be provided included the following:

(1) notices of appeal of criminal convictions,
(2) petitions for postconviction relief,
(3) petitions for writs of habeas corpus,
(4) complaints pursuant to 42 U.S.C. § 1983,
(5) challenges to restitution under section 910.7,
(6) requests for appointment of counsel where appropriate, and
(7) other pleadings or motions concerning the inmate’s criminal case or his conditions of confinement.

The agreement recited that SPD was to provide assistance in the following ways:

(1) confer with individual inmates about legal matters listed in items (l)-(7) above,
(2) interview inmates to ascertain relevant facts,
(3) advise inmates about the merits or lack of merits of their proposed litigation and the proper parties thereto,
(4) advise an inmate about resolutions alternative to litigation,
(5) advise an inmate which form would be appropriate for the proposed litigation,
(6) advise an inmate about prerequisites to filing,
(7) assist an inmate to complete an appropriate form regardless of the merits or lack of merits to an inmate’s proposed litigation, and
(8) accept correspondence from inmates concerning any of the above.

The agreement expressly stated that “[t]here are no third party beneficiaries to this Agreement. This Agreement is intended only to benefit the DOC and the Public Defender.”

The agreement provided that SPD might contract with private attorneys to provide those services. SPD contracted with attorney Peter Hansen to advise inmates at the state penitentiary. The agreement with Hansen incorporated in full the scope of services listed as items (1) through (7) of the IDOC agreement with SPD and the means of assistance specified in items (1) through (8) thereof as set forth above.

The petition in this action alleges that inmates Walters and LeGear each made requests for legal assistance from attorney Hansen. They assert that his response was inadequate to afford them reasonable access to the courts due to the fact that the prison was no longer maintaining an adequate law library and conferences with jailhouse lawyers were prohibited. The petition has alleged no specific request by plaintiff Shortridge for legal assistance from Hansen or SPD nor any actual injury that he has suffered.

LeGear alleges that he requested assistance in preparing a writ of certiorari to the United States Supreme Court. The record contains a written response to this request by Hansen in which he asserts that his contract with SPD prohibited such representation and that SPD could also not help LeGear.

Walters, who had a federal habeas corpus action pending, claims that he requested assistance from Hansen in objecting to a federal magistrate’s proposed adverse decision on his claim. He asserts that he asked Hansen to research recent cases in the area. Hansen replied that his contract did not provide for doing such research.

Walters also asserts that he requested assistance from Hansen in filing a 42 U.S.C. § 1983 action against IDOC, SPD, and Hansen asserting a constitutional denial of access to the courts and also asserting a third-party beneficiary claim under the IDOC contract with SPD. Hansen’s response was that he was not obligated to provide legal advice regarding legal action against himself.

The district court granted summary judgment in favor of all defendants with regard to both the third-party beneficiary contract theories and the constitutional claims. We review that ruling as it applies to each of the appellants, LeGear, Walters, and Shortridge.

I. Scope of Review.

We review rulings granting motions for summary judgment to determine errors at law. Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 202 (Iowa 2002); Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001); Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000). It is legal error to grant such a motion if the facts viewed in the light most favorable to the nonmoving party support a right to relief under applicable law. Grovijohn, 643 N.W.2d at 202; Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000).

II. The Contract Claims.

Plaintiffs assert that they are third-party beneficiaries of the agreement for legal services between IDOC and SPD and between SPD and Hansen. The district court questioned their standing as third-party beneficiaries, but decided the contract claims on the merits. In response to plaintiffs’ contentions that the court’s ruling on the merits of their contract claims was in error, we avoid discussion of that issue based on our belief that plaintiffs are clearly not third-party beneficiaries of the agreements in question.

In Vogan v. Hayes Appraisal Associates, Inc., 588 N.W.2d 420 (Iowa 1999), we determined that the primary consideration in deciding whether nonparties to an agreement are third-party beneficiaries thereof is whether the contract manifests an intent to benefit those parties. Vogan, 588 N.W.2d at 423. This is the standard of Restatement (Second) of Contracts, which provides:

Unless otherwise agreed upon between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Restatement (Second) of Contracts § 302(1) (1979) (emphasis added). The agreement between IDOC and SPD expressly negates an intention to benefit the inmates of the institution where the legal services were to be provided. Because Hansen’s contract served as the implementation of SPD’s agreement with IDOC, it must be viewed as similarly limited as to the persons to be benefited. The district court was correct in granting summary judgment on plaintiffs’ contract claims.

III. Plaintiffs’ Constitutional Claims.

The scope of the Supreme Court’s opinion in Bounds v. Smith was sharpened and narrowed in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Lewis found that implicit in Bounds was a need to show actual injury in order to successfully assert a denial of access to the courts. Lewis, 518 U.S. at 351, 116 S.Ct. at 2180, 135 L.Ed.2d at 618. The Court stated in that regard:

Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense. That would be the precise analog of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary. Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone,” id. at 823, 52 L.Ed.2d [at 80], 97 S.Ct. [at 1495] (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.

Id. In giving examples of what might represent an alleged shortcoming that violated the constitutional standard, the Court in Lewis stated:

[The prison inmate] might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.

Id. Finally, the Court, citing Bounds, made clear that the state has no obligation to enable the prisoner “to litigate effectively once in court.” Lewis, 518 U.S. at 354, 116 S.Ct. at 2181, 135 L.Ed.2d at 619.

The Court of Appeals for the Eighth Circuit in Cody v. Weber, 256 F.3d 764 (8th Cir.2001), succinctly stated the framework for analyzing claims of this type. The court stated:

The general framework for analyzing access to courts claims brought by inmates is set forth in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Lewis explains and narrows the Supreme Court’s earlier holding in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), concerning the nature of the right and the requirements for relief. In the context of an allegedly inadequate prison law library, the Court determined that the right of access to the courts guarantees an inmate the ability to file lawsuits that directly or collaterally attack the inmate’s sentence or that challenge the conditions of the inmate’s confinement, but it does not extend to the right to “discover grievances” or to “litigate effectively once in court.” 518 U.S. at 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606. Moreover, an inmate who alleges an access violation is required to show actual injury. Id. at 349, 351, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606.

Cody, 256 F.3d at 767-68. We evaluate the claims of each of the plaintiffs in accordance with these standards.

A, Shortridge’s claims. Shor-tridge makes no contention that he was denied any specific request for assistance in seeking entry to the courts nor does he suggest that he sought such assistance. He merely urges that there is a potential to deny him access to the courts in the future because of the deficiency in the representation that is being provided to inmates in the state penitentiary. The district court found that Shortridge’s claims fail to assert any actual injury and therefore fail to meet the Lewis standard as articulated by the eighth circuit in Cody. We agree. One may not successfully assert a denial of access to the courts in the absence of suggesting a particular claim that needs adjudication. Summary judgment was properly granted as to all of Shortridge’s claims.

B. LeGear’s claims. LeGear asserts that he was impeded from filing a petition for a writ of certiorari to the United States Supreme Court because of an inadequate prison library and refusal of SPD’s contract attorney to assist him. The defendants resist this claim on the basis that they were not required to represent LeGear in any petition to the Supreme Court, that his proposed certiorari petition was frivolous, and that the petition was untimely. In reviewing the record, it seems clear that LeGear only sought assistance in preparing the certiorari petition and did not seek formal representation with respect thereto.

In White v. Kautzky, 269 F.Supp.2d 1054 (N.D.Iowa 2003), a challenge was made to representation under the same contracts that are before the court in the present case but involving different contract attorneys. In that case the inmate had sought assistance in filing a postcon-viction relief application in the state court. The response of the contract attorney was to present him with a form that could be used for pro se filings and a refusal of further assistance. Although the magistrate reviewing this claim recommended a grant of summary judgment in favor of the defendants, the district court concluded that a factual issue existed as to whether that refusal of assistance constituted a denial of access to the courts.

In so ruling, the court stated:

[H]ad the contract attorneys provided [plaintiff] with the services required under the contract with the Iowa Department of Corrections, [plaintiffs] “access to the courts” claim would almost undoubtedly fail on this first requirement. The contract provides, inter alia, that the contract attorneys “will assist offenders in the correctional facility ... who seek legal advice or wish to file pleadings in the following areas: ... Petitions for post-conviction relief....” The contract also provides that the contract attorneys “will ... [c]onfer with individual offenders about the legal matters listed above [and][a]dvise the offender about the merits or lack of merit of any proposed litigation and the proper parties thereto.... ”
That is not to say that [plaintiff] can satisfy the first requirement of his “access to courts” claim simply by showing a breach of the duties imposed upon the contract attorneys by their contract. However, what [plaintiff] has done is generate genuine issues of material fact as to whether the conduct of the contract attorneys in this case, which White avers consisted of simply handing him an application for post-conviction relief without even attempting to provide him with any advice concerning the merits of his claim, when he had no other source of information to assess the merits of his claim, constituted providing “ ‘a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.’ ”

White, 269 F.Supp.2d at 1061-62 (quoting Lewis, 518 U.S. at 351, 116 S.Ct. at 2174, 135 L.Ed.2d at 617-18). (citations omitted).

LeGear’s allegations, not negated by the summary-judgment papers, suggests that he was unable to discover the requirements for filing a petition for certiorari to the Supreme Court from other sources. With respect to the claims that LeGear’s proposed petition for certiorari was both frivolous and untimely, we have no basis for evaluating such contentions factually. There is nothing in the record on the motion for summary judgment that establishes either the frivolous nature of this unspecified legal claim or its untimely nature. Consequently, the summary-judgment ruling on LeGear’s constitutional challenge must be reversed, and that claim remanded for further proceedings. Those proceedings shall be against defendant Kautzky, as representative of the Iowa Department of Corrections, and not against the other defendants.

C. Walters’ claims. With respect to Walters’ claim that he was denied access to the courts on his federal habeas corpus claim, it appears that he had gained access to the courts with respect to that proceeding and that a federal magistrate had reached an adverse conclusion concerning the merits thereof. The State has asserted that Walters was represented by counsel at that time and that his appointed counsel was available and competent to lodge any challenges to the magistrate’s proposed decision. His failure to controvert these factual assertions precludes us from finding that there is any genuine issue of material fact to support his claimed denial of access to the courts on that claim. The district court properly granted summary judgment with respect thereto.

With respect to Walters’ claim that he was denied access to the courts by the refusal of Hansen to assist in the filing of a 42 U.S.C. § 1983 action against IDOC, SPD, and himself, we conclude that the nature. of the proposed action might have involved a challenge to the. conditions of his confinement under a theory that preclusion of access to the courts is a condition of confinement. Although Hansen and the SPD might have appropriately responded that it would be improper for them to assist in the bringing of a legal action to which they would be a party, that circumstance does not relieve IDOC, as the alter ego of the State of Iowa, from any obligation it may have to allow Walters court access to challenge his conditions of confinement.

Notwithstanding the foregoing facts, we are satisfied that in bringing the action now before the court Walters has obtained the access necessary to litigate those matters for which he sought assistance. Any inadequacies in the legal services provided to him either by way of a substandard library, inadequate assistance from the contract attorney, or denial of access to a jailhouse lawyer have not been shown to deny him his day in court with respect to the matters for which he sought assistance from attorney Hansen. The district court correctly granted summary judgment on Walters’ constitutional claims.

D. Alleged conflict of interest. All of the plaintiffs have alleged that a conflict of interest arises from relying on lawyers paid by the State to advise them concerning challenges to their sentences of confinement or their conditions of confinement. In order to prevail on that claim, plaintiffs must establish that the alleged conflict produced a negative impact of constitutional dimension upon their access to the courts. We are satisfied that no constitutional impairment to court access has been demonstrated from the nature of the alleged conflict. In dealing with this very issue, the Supreme Court in Bounds gave approval for providing legal services through private lawyers under contract with correction authorities. Bounds, 430 U.S. at 830-31, 97 S.Ct. at 1499-1500, 52 L.Ed.2d at 84.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed with respect to the claims of plaintiffs Walters and Shortridge, but reversed with respect to the constitutional claim of plaintiff Le-Gear. The case is remanded to the district court for further proceedings on that claim not inconsistent with this opinion. The costs on appeal are taxed sixty-seven percent to appellants Walters and Shor-tridge and thirty-three percent to the Iowa Department of Corrections.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . The statutory authority for this agreement is Iowa Code section 13B.7, which provides:
      The state public defender may supervise the provision of legal services, funded by an appropriation to the Iowa department of corrections, to inmates of adult correctional institutions in civil cases involving prison litigation.
      1988 Iowa Acts ch. 1161, § 7.

      . Originally, inmate Steve Wycoff was included as a plaintiff in this litigation, but he has not appealed from the district court's judgment.

      . Although the conviction for which LeGear is imprisoned became final on March 14, 1984, the record indicates that he has, in the meantime, filed one or more 42 U.S.C. § 1983 actions in the federal courts. Potentially, his request for assistance in filing a petition for certiorari to the United States Supreme Court involved one of those matters. It is the burden of the defendants to establish in their motion for summary judgment that the particular claim was untimely or frivolous or that the proposed certiorari petition did not relate to LeGear’s confinement. They have provided no factual basis in the summary-judgment record for concluding that is the case.


author: STREIT, Justice.

text:
    Ramona SAGER, Appellant, v. FARM BUREAU MUTUAL INSURANCE CO., Appellee.
    No. 02-1433.
    Supreme Court of Iowa.
    May 12, 2004.
    Rehearing Denied June 1, 2004.

      John Werden of Van Dyke & Werden, P.L.C., Carroll, for appellant.
    James Pugh and Paul S. Swinton of Morain, Burlingame & Pugh, P.L.C., West Des Moines, for appellee.
   STREIT, Justice.

A battalion of Beanie Babies has marched a legal question before us. While on a quest to torch his wife Ramona’s Beanie Baby collection, Robert Sager nearly burnt down the family house. Ramona now seeks to collect under the couple’s homeowners policy with Farm Bureau for Robert’s pyromaniacal actions. The policy, however, contains an exclusion for “intentional loss” at the hand of “an insured.” In a matter of first impression, we hold Iowa’s standard fire insurance policy, as set forth in Iowa Code section 515.138 (1999), renders the exclusion unenforceable. We reverse and remand for further proceedings.

I. Facts and Prior Proceedings

The facts are stipulated. Robert Sager intentionally set a fire in the basement of a house he shared with his wife Ramona in DeWitt. Angry after Ramona told him she was ending their relationship, Robert torched Ramona’s Christmas decorations in the basement of their house. The fire quickly spread, and portions of the house were soon engulfed in flames. Robert’s pyromaniacal act caused approximately $100,000 damage to the house and its contents. Not surprisingly, Robert and Ramona later divorced.

At the time of the fire, Robert and Ramona were named insureds under a homeowners policy with Farm Bureau Mutual Insurance Company. When Ramona sought payment, Farm Bureau denied her claim. To justify its nonpayment, Farm Bureau cited exclusions in the policy for “intentional loss” and “concealment or fraud.”

The “intentional loss” exclusion barred recovery for “any loss arising out of any act committed ... (l)[b]y or at the direction of an ‘insured’ ... and (2)[w]ith the intent or expectation of causing a loss.” Farm Bureau contended this exclusion precluded payment to Ramona because Robert, an insured, had purposefully started the fire.

The “concealment or fraud” exclusion barred coverage where an insured

(1) Intentionally concealed or misrepresented any material fact or circumstance;
(2) Engaged in fraudulent conduct; or
(3) Made false statements;
relating to [the] insurance.

Farm Bureau denied Ramona benefits under this exclusion because its “own investigation revealed substantial inaccuracies in [Ramona’s ‘Sworn Statement in Proof of Loss’] regarding the extent of damage to personal property.” In a deposition conducted at Farm Bureau’s invitation, Robert alleged many items in Ramona’s sworn proof of loss statement were, in fact, undamaged or salvageable.

.After Farm Bureau denied her claim, Ramona sued to recover under the policy. In the district court, Ramona argued the “intentional loss” exclusion was unenforceable because it (1) did not meet the minimum provisions of Iowa’s standard fire insurance policy, as set forth in Iowa Code section 515.138 (1999), and (2) was ambiguous due to a formatting error. The district court dismissed. First, the court ruled Vance v. Pekin Insurance Co., 457 N.W.2d 589 (Iowa 1990), controlled, and, as a result, Ramona—albeit an “innocent coinsured spouse”—could not recover under a policy which barred recovery if “an insured” intentionally caused the loss. Second, the court held the formatting errors in the policy did not render the “intentional loss” exclusion ambiguous.

Although Farm Bureau had also argued Ramona could not recover under the policy because she had misrepresented the extent of her loss, the district court declined to “answer whether such misrepresentation bars Ramona from recovery.”

The court of appeals reversed and remanded for entry of judgment in favor of Ramona. First, the court distinguished Vance; in Vance, we were not presented with the statutory argument, i.e., whether a policy which bars an innocent coinsured spouse from recovering violates Iowa Code section 515.138, our state’s standard fire insurance policy. Pointing to the great weight of authority, the court of appeals concluded the “intentional loss” exclusion in the Sagers’ policy violated the minimum protections afforded by the statute, and was therefore unenforceable. As a result, the court did not reach whether formatting errors also rendered the exclusion unenforceable. Second, the court of appeals determined “reasonable fact finders could differ on whether the inaccuracies on Ramona’s proof of loss form rose to the level of material misrepresentations or fraud.” Since this case was tried on stipulated facts, however, the court did not remand. The court of appeals reasoned the district court was in no better position than it to judge credibility, making a remand inefficient. The court simply held “Farm Bureau cannot establish the applicability of the concealment of fraud exclusion as a matter of law, [and therefore] it is not entitled to affirmance on this alternate ground.”

Farm Bureau sought further review, which we granted. Farm Bureau contends the court of appeals (1) erred in holding Iowa Code section 515.138 renders the intentional loss exclusion in the policy unenforceable and (2) failed to hold Ramona’s misrepresentations “material.” Should we affirm the court of appeals’ decision, Farm Bureau also asks us to provide guidance on how much Ramona is entitled to recover.

II. Standard of Review

Our review is for errors at law. Iowa R.App. P. 6.4. Factual findings made by the trial court are binding on appeal if supported by substantial evidence. Id. 6.14(6)(a). This case was tried on stipulated facts in the district court. That is,

To save expense, and to simplify the issue, the facts were agreed upon by the parties, upon which the court should render judgment. The parties, in effect, said to the court, “these are the facts, and now we wish judicially to know what are the rights of the parties thereunder.”

Logan v. Hall, 19 Iowa 491, 495 (1865) (citations and emphasis omitted). Because this law action was tried on stipulated facts, then, our review is “limited to assigned error in the district court’s application of law pertinent to the controversy.” Stewart v. DeMoss, 590 N.W.2d 545, 547 (Iowa 1999).

III. Merits

A. The Problem of the Innocent Coinsured Spouse

1. Vance

In Vance v. Pekin Insurance Company, we held that where one spouse had intentionally set fire to the family home, an innocent coinsured spouse could not recover under a homeowners policy which clearly and unequivocally excluded coverage from losses resulting from the intentional acts of “an insured.” 457 N.W.2d at 593 (emphasis added). In Vance, we adopted the so-called “best reasoned rule,” according to which “recovery depends ... on a contract analysis of the insurance policy provisions.” Id. (citing Leane E. Cerven, Note, The Problem of the Innocent Co-Insured Spouse: Three Theories of Recovery, 17 Val. U.L.Rev. 849, 867-68 (1983)). We explicitly noted this contract analysis followed the recent trend in other courts away from analyses centering upon property rationales or the marital status of the parties. See id. We have consistently applied this contract analysis ever since. See, e.g., Jensen v. Jefferson County Mut. Ins. Ass’n, 510 N.W.2d 870, 872 (Iowa 1994); Webb v. Am. Family Mut. Ins. Co., 493 N.W.2d 808, 812-13 (Iowa 1992). Other courts have followed suit. See, e.g., Watson v. United Serv. Auto. Ass’n, 566 N.W.2d 683, 688 (Minn.1997) (“The majority of courts use a contract-based theory which focuses on a contractual analysis of the insurance policy provisions ... ”; policies which contain “an insured” bar recovery to an innocent coinsured spouse); Noland v. Farmers Ins. Co., 319 Ark. 449, 892 S.W.2d 271, 272-73 (1995); Volquardson v. Hartford Ins. Co., 264 Neb. 337, 647 N.W.2d 599, 605-06 (2002); Wagner v. Midwestern Indem. Co., 83 Ohio St.3d 287, 699 N.E.2d 507, 511 (1998); McAllister v. Millville Mut. Ins. Co., 433 Pa.Super. 330, 640 A.2d 1283, 1289 (1994); Utah Farm Bureau Ins. Co. v. Crook, 980 P.2d 685, 686 (Utah 1999). See generally 10 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 149:49 (2003) (“whether arson by one coinsured spouse bars innocent coinsured spouse from recovering under policy depends not on property rationales or marital rights and obligations, but on contract analysis of insurance policy provisions .... ”).

Vance contained an intentional loss exclusion similar to the case at bar. In Vance, we interpreted the phrase “an insured” in the policy to mean “an unspecified insured” who intentionally sets fire to the house. 457 N.W.2d at 593. That is, under the express terms of such a policy, if any insured sets fire to the house, all insureds are barred from recovering. Id. As a threshold matter, then, we find the provisions of the insurance contract at issue in this case bar Ramona’s claim. As in Vance, the policy explicitly excludes coverage for “any loss arising out of any act committed ... (l)[b]y or at the direction of an ‘insured’ ... and (2)[w]ith the intent or expectation of causing a loss.” (Emphasis added.) Applying a contract analysis, Robert’s malfeasance plainly bars Ramona’s right to recover.

2. Iowa Code § 515.138

After Vance was decided, however, a new question arose in other jurisdictions: If an innocent coinsured spouse is denied coverage under the express terms of the policy, do those policy provisions then violate the mandatory coverage provisions in state statutes? Citing a relatively recent Minnesota decision, Watson v. United Services Automobile Association, 566 N.W.2d 683 (Minn.1997), Ramona claims her policy, if interpreted to bar an innocent coin-sured spouse from recovery, violates the mandatory minimum coverage set by Iowa statute.

Found in Iowa Code section 515.138, our state’s standard fire insurance policy “lists various permissible standard provisions for fire policies.... ” Thomas v. United Fire & Cas. Co., 426 N.W.2d 396, 397 (Iowa 1988). That is,

It shall be unlawful for any insurance company to issue any policy of fire insurance upon any property in this state ... different from the standard form of fire insurance policy herein set forth.... An insurer may issue a [different] policy ... if such policy includes provisions with respect to the peril of fire which are the substantial equivalent of the minimum provisions of such standard policy....

Iowa Code § 515.138. Insurance companies which offer or issue policies “other or different from the standard form” are guilty of a simple misdemeanor. Id. § 515.140. Such policies, however, nonetheless remain binding upon the insurance company. Id.; cf. A.A. Cooper Wagon & Buggy Co. v. Nat’l. Ben Franklin Ins. Co., 188 Iowa 425, 430, 176 N.W. 309, 311 (1920) (recognizing, under earlier version of our standard fire insurance policy, that where policy does not conform to standard fire insurance policy, it is still binding upon the insurer). As we recently stated in another context,

Notwithstanding the principle that the meaning of an insurance contract is generally determined from the language of the policy, statutory law may also affect our interpretation of policy provisions .... [W]hen a policy provision conflicts with a statutory requirement, the policy provision is ineffective and the statute controls.

Lee v. Grinnell Mut. Reins. Co., 646 N.W.2d 403, 406 (Iowa 2002) (citations omitted).

The standard fire insurance policy itself is too lengthy to set forth here. As we have previously pointed out, however, “[t]he standard type of insurance policy is what is generally known as the New York type. It was first adopted in the state of New York and has been followed in Iowa and many other states since its original adoption.” Olson Enters., Inc. v. Citizens Ins. Co., 255 Iowa 141, 145, 121 N.W.2d 510, 512 (1963); see also Kintzel v. Wheatland Mut. Ins. Ass’n, 203 N.W.2d 799, 808 (Iowa 1973); cf. N.Y. Insurance Law § 3404 (2000) (setting forth present New York standard fire policy). Like other jurisdictions employing the New York policy, Iowa’s standard fire insurance policy does not contain an exclusion for intentional loss; the policy does, however, consistently refer to “the insured” in policy exclusions. For example, the standard policy excludes coverage for losses due to “neglect of the insured to use all reasonable means to save and preserve the property at and after a loss ...,” as well as losses occurring “[w]hile the hazard is increased by any means within the control or knowledge of the insured.” Iowa Code § 515.138 (emphases added). Ramona argues the consistent use of the phrase “the insured” in the policy evinces a legislative intent to apply the exclusions only to the malfeasant insured, and not also to the innocent insured; when a homeowners policy denies coverage whenever “an insured” intentionally causes the loss, it conflicts with statute.

When interpreting our standard fire insurance policy, we look to the decisions of other jurisdictions with a similar policy. See, e.g., Olson, 255 Iowa at 145-47, 121 N.W.2d at 512-13 (looking to other states to resolve dispute about standard policy). Doing so, we discover Ramona’s argument is supported by the great weight of authority. As the court of appeals noted, courts presented with this same question—and a growing number at that—have almost unanimously ruled in favor of the innocent coinsured spouse. Watts v. Farmers Ins. Exch., 98 Cal.App.4th 1246, 1261, 120 Cal.Rptr.2d 694, 706 (2002); Trinity Universal Ins. Co. v. Kirsling, 139 Idaho 89, 73 P.3d 102, 106-07 (2003); Osbon v. Nat’l Union Fire Ins. Co., 632 So.2d 1158, 1161 (La.1994); Borman v. State Farm Fire & Cas. Co., 198 Mich.App. 675, 499 N.W.2d 419, 422 (1993); Watson, 566 N.W.2d at 689; Volquardson, 647 N.W.2d at 610; Lane v. Sec. Mut. Ins. Co., 96 N.Y.2d 1, 724 N.Y.S.2d 670, 747 N.E.2d 1270, 1272 (2001). But see Traders & Gen. Ins. Co. v. Freeman, 81 F.Supp.2d 1070, 1079 (D.Or.2000) (reaching opposite result). See generally William A. McNab, Comment, Minnesota Loss Payable Clauses in Fire Insurance Policies: Falling Short of the Minimum Coverage Requirements, 26 Wm. Mitchell L.Rev. 557 (2000); 10 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 149:48 (2003). The Nebraska Supreme Court, for example, reasoned as follows:

[WJhile there is no specifically designated intentional acts exclusion in the [standard policy], it includes other provisions dealing generally with the insurer’s right to void coverage based upon conduct of “the insured.” In each instance, the standard policy uses language indicative of a several obligation whereby the insured bears the responsibility for his or her own conduct. We find no provision ... creating a joint obligation whereby the wrongful actions of one insured could prejudice the rights of an innocent co-insured.

Volquardson, 647 N.W.2d at 610; see also Watson, 566 N.W.2d at 691 (because the Minnesota standard fire insurance policy consistently used “the insured” and not “an insured,” the policy’s intentional loss provision incorporated an additional contract term; the policy thus was “at odds with the rights and benefits of the Minnesota standard fire insurance policy” because it failed to provide coverage for innocent coinsured spouses); Lane, 747 N.E.2d at 1272 (same).

Farm Bureau contends the foregoing cases are distinguishable because of a difference in the Iowa statute. As indicated, Iowa’s statute only prohibits those policies which are not the “substantial equivalent” of the statutory policy. Iowa Code § 515.138. Although this “substantial equivalent” provision is, so far as we can tell, somewhat peculiar to Iowa, it is not unique. See 1959 Iowa Acts ch. 329 (adding “substantial equivalent” proviso to standard fire policy). In Volquardson, for example, the Nebraska Supreme Court rejected an identical claim. 647 N.W.2d at 609. The relevant Nebraska statute stated a director of insurance may approve a .non-standard policy “if such policy with respect to peril of fire includes provisions which are the substantial equivalent of the minimum provisions of the standard policy.” Nebraska Rev. Stat. § 44-501(6) (1998). The Nebraska Supreme Court, however, ruled

[t]here is an obvious substantive difference between joint and several obligations of multiple insureds with respect to a coverage exclusion based upon conduct. Where the obligation is joint, commission of a proscribed act by one insured voids coverage as to all. However, where the obligation is several, the proscribed conduct defeats the policy rights of the insured who committed the act but not those of an innocent coin-sured.

Volquardson, 647 N.W.2d at 609. We agree with this assessment, and hold the policy, insofar as it bars recovery to an innocent coinsured spouse, is not the substantial equivalent of Iowa Code section 515.138.

Lastly, we reject Farm Bureau’s contention that accepting Ramona’s argument “overrules” Vance. Farm Bureau maintains we must assume that we considered and rejected Ramona’s statutory argument in Vance, because in that case we denied recovery to an innocent coinsured spouse—notwithstanding the fact Iowa Code section 515.138 was “on the books” at that time. Farm Bureau points out that Vance was written in response to a certified question from the federal district court; certified questions, it alleges, are different than cases taken on direct appeal, because our review in certified questions is not limited to issues raised, briefed, and argued by the parties.

We reject this argument. We were not presented with the standard fire insurance policy in Vance, and our answers to certified questions are no different than our decisions on direct appeal, insofar as both proceedings are adversarial. In either sort of case, we generally consider only questions argued by the parties; answers to certified questions should not be understood as all-encompassing court-approved treatises on a given body of law.

Farm Bureau’s argument also ignores the organic nature of law: the law develops over time, in no small part due to the ability of lawyers to develop new arguments. Unfortunately, the best arguments are not marshaled before us in every case. We do not, then, “overrule” Vance, because in that case we were not presented with the statutory argument. Instead, our decision today simply “adds a second step to the contractual analysis.” Watson, 566 N.W.2d at 689 (citations omitted).

Because we find the intentional loss provision is unenforceable against Ramona, we need not decide whether it is also rendered unenforceable due to ambiguity.

B. Concealment or Fraud Exclusion

Having determined the “intentional loss” provision is unenforceable against Ramona, it must still be determined whether she is barred from recovery under the policy’s “concealment or fraud” exclusion. Farm Bureau argues Ramona is barred from recovery because she materially misrepresented the extent of personal property destroyed in the fire. In support of its argument, Farm Bureau cites Webb v. American Family Mutual Insurance Co., in which we denied recovery where an insured had “intentionally misrepresented the extent of personal property destroyed and ... the misrepresentation was material.” 493 N.W.2d at 812.

On this issue, the district court made only a limited number of factual findings. The record contains contradictory evidence about the condition of numerous items of personal property left in the house after the fire. The court expressly found Ramona submitted a proof of loss form which “contained a substantial number of items ... not destroyed in the fee.” The court later characterized Ramona’s actions as a “misrepresentation,” but regrettably declined to “answer whether such misrepresentation bars Ramona from recovery.” See id. at 811 (concealment or fraud clause will not void policy unless inaccuracies in the proof of loss form were made with intent to defraud); Goldstein v. St. Paul Fire & Marine Ins. Co., 124 Iowa 143, 145, 99 N.W. 696, 696 (1904) (same); Stone v. Hawkeye Ins. Co., 68 Iowa 737, 741-42, 28 N.W. 47, 49 (1886) (same).

The procedural posture of this case, then, is manifestly unlike Webb. In Webb, a jury expressly found the insured had “with intent to defraud, concealed a material fact or circumstance as to the extent of the personal property destroyed.” 493 N.W.2d at 810. We concluded there was sufficient evidence to support this finding, and upheld a district court judgment that a similar concealment or fraud exclusion precluded recovery under the insured’s policy. Id. at 812. In the case at bar, however, there was no corresponding finding in the district court on Ramona’s intent.

As indicated, appellate review is “limited to assigned error in the district court’s application of law pertinent to the controversy.” Stewart, 590 N.W.2d at 547. In this case, the record does not contain sufficient factual findings to which we might apply the law. Mindful of our proper role, then, we must refrain from deciding matters for ourselves. It makes no difference that this case was decided on stipulated facts. See Illinois Nat’l Ins. Co. v. Farm Bureau Mut. Ins. Co., 578 N.W.2d 670, 671 (Iowa 1998) (“When a case is submitted on stipulated facts, our only task is to construe the provisions of the insurance policies.”). Under these circumstances, the only appropriate course of action is to remand the case. On remand, the district court shall make specific factual findings and then, applying the law, determine whether Ramona is barred from recovery under the concealment or fraud exclusion of her policy with Farm Bureau. We vacate the court of appeals’ disposition to the contrary.

In a final assignment of error, Farm Bureau contends the court of appeals failed to provide guidance on Ramona’s interest in the loss and how much she is entitled to recover. Because we do not decide whether Ramona will ultimately recover under the policy, we do not reach this issue. A ruling on this issue is too speculative at this time, and, in any event, must initially be made by the trial court. See Wilson v. Ribbens, 678 N.W.2d 417, 423 (Iowa 2004).

IV. Conclusion

We hold Iowa’s standard fire insurance policy renders unenforceable an “intentional loss” exclusion clause in the Sagers’ policy which would otherwise preclude Ramona from collecting. In this respect, we affirm the court of appeals, and reverse the district court. We remand for factual findings and a legal determination as to whether Ramona is barred from recovery under the concealment or fraud exclusion in her Farm Bureau policy.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS.

      . At a deposition conducted months later, Robert described the scene and his subsequent actions as follows:
      She had Beanie Babies everywhere and I was sick of them sons of bitches and I decided I was going to barbecue them. I had a big brush pile that I was going to burn outside and I had decided I was going to get all her Beanie Babies and take them out and barbecue the sons of bitches and went to get the charcoal lighter. Christmas has always been another big issue between us just because, you know, she sees it differently than I do, and I went in the basement to get the charcoal lighter and take it upstairs and fry her Beanie Babies and all her Christmas stuff was sitting there and I sprayed some charcoal lighter on her Christmas stuff and threw a couple of matches at it and it flared up a lot faster than I thought it was going to....
      According to Ramona, 150 Beanie Babies and Buddies perished in the fire. She claimed $1100 in damages for these collectible dolls.

      . Although Farm Bureau and the court of appeals at times approached the issue as whether Ramona's statements are ''material,” the question is whether Ramona’s actions demonstrate an intent to defraud Farm Bureau. "Personal property in an insured’s home is 'material’ insofar as it is the object of the insurance policy which covers it.” Webb v. Am. Family Mut. Ins. Co., 493 N.W.2d at 811.