text:
    Cesar MEVORAH and Martin Sills, Individually and as co-partners doing business under the firm name and style of Irving's Tractor Lug Company, Plaintiffs and Respondents, v. Irving GOODMAN and Stanley Goodman, individually and as co-partners, Defendants and Appellants.
    No. 7460.
    Supreme Court of North Dakota.
    Dec. 19, 1955.
    Rehearing Denied Jan. 17, 1956.

      Lanier, Lanier & Knox and Aaron Aron-son, Fargo, for appellants.
    J. F. X. Conmy, Bismarck, and Sgutt & Wegner, Fargo, for respondents.
   BURKE, Chief Justice.

This action is for damages for alleged breaches of a contract for the sale of a business in Fargo known as Irving’s Tractor Lug Company. The plaintiffs were the purchasers of the business and the defendants were the sellers. The contract of sale provided that the purchasers were to have immediate possession of the business and that the sellers were to retain title to the stock of merchandise to secure the deferred payments under, the contract. Under other provisions of the contract the sellers agreed not to engage in the business of selling new tractor or farm implement parts, and not to conduct any other business in the name of Irving’s Tractor Lug Company. They agreed to furnish the buyers with an accurate list of all the creditors of the business and in connection with a provision for joint control over certain banking accounts they agreed not to refuse arbitrarily or capriciously to countersign .checks issued against such accounts. There were many other agreements contained in the contract but they do not appear material to this law suit.

It their complaint plaintiffs set forth five causes of action. For their first cause of action they alleged that defendants violated the clause of the contract prohibiting the use of the name Irving’s Tractor Lug Company by the use of bank drafts drawn in the name of Irving’s Tractor Lug Company and by using “said trade name in various other ways” to their damage in the sum of $10,000. For their second cause of action plaintiffs alleged that defendants arbitrarily and capriciously refused to countersign checks which were presented to them for signature and that they suffered damages thereby in the sum of $10,000. For their third cause of action plaintiffs alleged that defendants violated the intent and spirit of the contract by interfering in the conduct of plaintiffs’ business, by mingling new and old merchandise, by ransacking and losing plaintiffs’ records, by abusing the privilege of using office space, by removing a partition erected by plaintiffs and by conducting a scrap metal business and other business contrary to the terms of the contract. Upon this cause of action they alleged damages in the sum of $15,000.

For their fourth cause of action, plaintiffs alleged that defendants failed to furnish plaintiffs with an accurate list of creditors and that after the execution of the contract there were received by Irving’s Tractor Lug Co. credit memoranda from all over the United States and Canada on transactions which had taken place prior to the purchase of the business by the plaintiffs and which credits the plaintiffs had to make good. On this cause of action plaintiffs alleged damages in the sum of $15,000. For their fifth cause of action plaintiffs alleged that, prior to the sale, defendants had issued numerous checks drawn upon bank accounts which plaintiffs acquired by the purchase, that these checks were presented for payment after the purchase of the business and were paid out of funds belonging to the plaintiffs to their damage in the sum of $5,000. A total judgment of $55,000 was demanded. The defendants denied generally all of the allegations of the complaint and asked for a dismissal of the action.

Upon the trial of the case, the jury returned a verdict for plaintiffs in the sum of $9,000 and judgment was entered accordingly. Defendants thereafter moved for a new trial. This motion was denied and defendants have appealed both from the order denying a new trial and from the judgment.

Upon this appeal defendants’ contentions are:

1. That the evidence is insufficient to support a recovery by plaintiffs in any amount whatsoever.

2. That the trial court erred in allowing proof of the gross volume of business done by defendants from January 1, 1950 to July 1, 1950 and the gross volume of business done by plaintiffs from July 1, 1950 to February 1, 1951 for the purpose of establishing loss of business by the plaintiffs, there being no evidence that the two periods were comparable periods or that the business was operated under conditions which were substantially the same.

3. That the trial court erred in allowing plaintiffs to show that defendants had done some business in the name of Irving’s Tractor Lug Co. when such business was not in competition with the business of plaintiffs.

4. That the trial .court erred in allowing plaintiffs to show that defendants had retaken possession of the business of Irving’s Tractor Lug Company on February 5, 1951, and allowing plaintiffs to show any acts of the defendants which took place after the institution of the present action.

5. That the trial court erred in not requiring the jury in its verdict to find the damages, if any, separately upon each cause of action.

We shall direct our attention first to the specification as to the insufficiency of the evidence to sustain the verdict. In considering this specification we must take that view of the evidence which is most favorable to the verdict. Froh v. Hein, 76 N. D. 701, 39 N.W.2d 11, Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873. Taking this view of the evidence, we think that it is clearly sufficient to support a finding that the contract in question was breached as alleged. In fact there is no serious contention by the defendants that the evidence is not sufficient in this respect. They do argue very seriously, however, that it is insufficient to sustain the verdict in the amount found or in any amount.

From our examination of the record it appears that plaintiffs did not attempt to prove damages as alleged, that is to say; separately for each cause of action. Evidence of the separate breaches was introduced but there was practically no testimony as to the amount of damage that could be attributed to each or any separate breach. The instructions of the trial court required the jury, if they found any damages at all, to find a gross amount for the several causes of action pleaded.

Upon the first cause of action plaintiffs offered evidence to show that defendants had used the trade name “Irving’s Tractor Lug Company’1’ in violation of their agreement. This evidence was to the effect that the name appears on a sign upon the place of business used by defendants and that the defendants used drafts drawn on Irving’s Tractor Lug Company in payment for scrap metal as shown by exhibits 2 to 19. These drafts were upon bank accounts maintained by the defendants in the name of Irving’s Tractor Lug Company and caused plaintiffs no direct loss. Plaintiffs also offered evidence (exhibits 89 and 90) to show that between February 5, 1951 and February 14, 1951, defendants had sold in the name of Irving’s Tractor Lug Company new tractor parts which had a retail value of $150 and on February 5, had made a shipment of tractor parts previously ordered from plaintiffs of the value of $440. No attempt was made to prove any damage which might be specifically attributed to these sales.

Upon their second cause of action plaintiffs offered evidence to show that defendants refused to countersign checks. There was considerable dispute in tire evidence as to whether the refusal was arbitrary, but in any event plaintiffs did not show the loss of any business or other damage which could be attributed to the refusal.

Upon their third cause of action plaintiffs offered evidence of interference by the defendants in the conduct of their business. These acts of interference included mingling old and new merchandise, losing records, cluttering up the aisles and tearing down a partition erected by plaintiffs. Again no specific damage, not even the cost of erecting the partition, was shown.

Upon their fourth cause of action plaintiffs offered in evidence numerous credit memoranda, which had been issued prior to their purchase of the business and which they had to make good thereafter. The record is uncontradicted that with respect to all of these memoranda, with the possible exception of exhibits 72, 73 and 74, the defendants upon demand reimbursed the plaintiffs for the full amount thereof. Exhibits 72, 73 and 74 total $88.86. Specific damages in the sum of $88.86 may thus be considered to have been shown under this cause of action.

Upon plaintiffs’ fifth cause of action the evidence established that defendants had drawn checks on the account of Irving’s Tractor Lug Company in the Bank of Montreal at Estevan, Sask. These checks were issued prior to the sale of the business to plaintiffs and cashed afterwards. In each instance the defendants reimbursed plaintiffs for the amount of the check, with the exception of exhibit 38 in the amount of $18.43. It appears therefore that no specific damages in excess of $18.43 were shown upon this cause of action.

It was apparently plaintiffs’ procedure upon the trial to prove their case as if a single cause of action upon the several breaches of the contract had been pleaded and to attempt to show a loss of business resulting from the accumulated breaches. Upon this theory plaintiffs were allowed to put in evidence proof that the business done by Irving’s Tractor Lug Company during the six months from January 1, 1950 to July 1, 1950, while it was operated by defendants grossed $100,000 and that during the succeeding seven months, under plaintiffs’ management it grossed $41,000. One of the plaintiffs was also allowed to testify that the net profit in the business averaged 9½% of the gross. If this evidence was properly admitted, a question which we will consider later, and if the entire difference in the gross business could be properly considered as a loss attributable to defendants’ breaches of contract then the total loss was 9½% of $59,000 or about $5,000. The verdict of $9,000 which was rendered in this case was therefore clearly excessive.

We turn next to the specification that the trial court erred in allowing testimony of the amount of gross business done by defendants between January 1, 1950 and July 1, 1950 in evidence for the purpose of comparing it with evidence of the gross volume of business done by defendants in their operation of the business between July 1, 1950 and February 1, 1951, in order to establish a loss of business attributable to breach of contract. Defendants counsel objected to this proof upon the ground that it tended “to show two different people’s operation over two different periods, not comparable, no foundation laid, which tends to give the wrong impression to the jury upon the measure of damages.” We are of the opinion that the objection should have been sustained as there was no foundation for the testimony. The rule appears to be that “Evidence of sales and profits made during a corresponding period of the previous year under substantially the same conditions is competent as affording a reasonably certain basis for determining the profits lost by the interruption or destruction of a business”. 15 Am.Jur. (Damages, Sec. 352) 790.

In Russell v. Olson, 22 N.D. 410, 420, 133 N.W. 1030, 1034, 37 L.R.A..N.S., 1217, we stated that the proper way to make such proofs “ * ■ * * would be by comparing the profits for corresponding periods of time through any prior or succeeding years

Here the proof related to periods which were not corresponding, as one related to the first six months of the year and the other to the second six months. It is a well known fact that many businesses are subject to seasonable fluctuations. Whether this is such a business, is not shown by the record. We think, however, that it was incumbent upon the plaintiffs, if they wished' a cofnparison of the business done during two different periods of the year to be made, to offer a foundation to demonstrate that the comparison would result in valid inferences and conclusions. Furthermore, it does not appear that Irving’s Tractor Lug Company was the same business after July 1st as it was before that date. As we understand the record this business, as conducted by the defendants, included the sale of both new and used tractor, truck and farm implement parts. It was only the new parts business which was sold to plaintiffs. The defendants retained the used parts business and by agreement with plaintiffs conducted this used parts business from the same business address that was used by the plaintiffs in their business. Thus the business done after July 1st would have been substantially diminished by the fact that the plaintiffs’ used parts business was in direct competition with that of the defendants carried on at the same business address. In such circumstances a comparison of the profits made during the two periods would not reflect the damages due to breach of the contract with any degree of certainty.

It was also urged that it was error for the trial court to allow one of the defendants to testify that the net profit of the business was 9½% of the gross volume of sales. As foundation for this testimony this defendant testified that he made the computation by talcing the cost of the merchandise, adding to it the actual expenses incurred in operating the business and subtracting this sum from the amount of the gross sales to determine the net profit in dollars. He then determined &at the profit in dollars was 9½⅞ of the gross sales in dollars. In Russell v. Olson, 22 N.D. 410, 420, 133 N.W. 1030, 37 L.R.A.,N.S„ 1217, we said that profits could readily be shown “* * * by'showing gross earnings, actual expenses of the business during such period, * * We can see "no objection to reducing the net in dollars to a percentage of tire gross, where the figures upon which the percentage was computed were available and the witness could have been cross-examined upon his methods and the accuracy of his computations. The admission of this testimony was not error.

We shall consider next the specification that the court erred in allowing plaintiffs to show that defendants had done ' some business in the name of Irving’s Tractor Lug Company when such, business was not in competition with the plaintiffs. We see no merit in this specification'. The use by the defendants of the name Irving’s Tractor Lug Company, in any business, was a breach of their contract with the plaintiffs. Plaintiffs clearly alleged tire breach in their complaint. They had a rig-lit to prove it and what damages, if any, resulted from it.

Defendants have'also urged that it was error for the trial court to allow in evidence, over their objection, testimony as to the wrongful seizure of the business of Irving’s Tractor Lug Company by the defendants on February S, 1951. Plaintiffs elected to treat the seizure of their stock of goods as a conversion and not as a breach of contract. They have recovered damages for that conversion. Mevorah v. Goodman, N.D., 68 N.W.2d 469. It is clear that this testimony was not material to the proof of any of the allegations of this complaint. Plaintiffs claim that this evidence was material to rebut defendants’ testimony that plaintiffs had breached the purchase contract. They say it shows that defendants’ acts made it impossible for them to perform the contract. This is not the case for the reason that defendants’ testimony as to breaches by the plaintiffs relates to acts claimed to have taken place prior to the seizure. The admission of this evidence was therefore error.

We shall next consider the specification that the court erred in allowing in evidence testimony as to the use of the trade name, “Irving’s Tractor Lug Company” by the defendants at times subsequent to the commencement of the action. This evidence related to the use of the name in the sale of new and used truck parts. In the complaint plaintiffs had alleged that defendants had used the trade name by drawing bank drafts in the name of Irving’s Tractor Lug Company and “in various other ways”. As we understand defendants’ contention, it is, that while plaintiffs might prove damages which arose subsequently to the commencement of the action if they arose out of a breach of the contract which was prior thereto; they cannot be permitted to prove breaches which occurred subsequently without amending the complaint. In support of their theory that the evidence was competent plaintiffs cite Section 32-0303, NDRC 1943 which provides:

“Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof or certain to result in the future.”

This statute relates to the proof of damages and not to causes of action. Its commonest application is in personal injury and wrongful death cases, where damages resulting from a single injury continue to accumulate from year to year. It also applies where a person has been deprived of the possession of real property. In such cases damages for the continuing loss of rents that result from the deprivation may be proved. McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243.

The rule as stated in American Jurisprudence is:

“The right to recover damages accruing after the commencement of the suit depends upon whether they are merely incidental to the cause of action declared on or whether they arise out of a new cause of action. If they do not in themselves constitute a new cause of action, they may be recovered, provided they are immediate consequence of the act complained of * * 15 Am.Jur. (Damages, Sec. 16) 406.

In Corpus Juris Secundum the rule is stated to be:

“ * * * Damages which have accrued after the action is begun may be allowed, as under statute, where they are the consequence of acts done before the beginning of the action and constituting a part of the cause of action declared on; * * *” 25 C.J.S., Damages, § 193, p. 908.

Here the proof received in evidence related to subsequent acts of the defendants which in themselves constituted causes of action. It was error to receive it without an amendment of the complaint.

The last specification of error to be considered is that the court erred in not requiring the jury in its verdict to find damages separately for each cause of action alleged in the complaint. Upon this issue the record is confusing. Plaintiff attempted to show damages in small amounts which related specifically to two of the five causes of action. He also attempted to show a loss of business attributable to all five causes of action in the aggregate. The trial judge instructed the jury that they should assess damages for each of the five causes of action, including those upon which there was no specific proof of damages and thereafter render a general verdict. It was clearly error to submit the case in this manner since it permitted the jury to find damages upon causes of action upon which there was no proof of damage and there is no means of determining under a general verdict whether such damages were included in the jury’s award. Spicer v. Northern Pac. R. Co., 21 N.D. 61, 128 N.W. 302.

In view of our conclusions on this appeal, the order of the district court denying a new trial is reversed and a new trial is granted.

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


source: Caselaw Access Project

author: BURKE, Chief Justice.

license: Public Domain

text:
    Estelle A. GEIER, for the use and benefit of herself and Victoria Geier, Becky Ann Geier and Edde-Jo Geier, Plaintiff and Respondent, v. Lester TJADEN and Interstate Transportation Company, a Corporation, Defendants and Appellants.
    No. 7457.
    Supreme Court of North Dakota.
    Dec. 5, 1955.

      Hyland, Foster & Conmy, Bismarck, for appellants.
    Lord, Ulmer & Murphy, Mandan, far respondents.
   BURKE, Chief Justice.

This is an action for wrongful death. In her complaint plaintiff alleged that her husband received injuries, which caused his death, in a collision between a motor bus owned by the defendant, Interstate Transportation Co., and driven by the defendant, Tjaden; that her husband’s injuries and death were proximately caused by the negligence of the defendant, Tjaden, acting in the course of his employment with the defendant transportation company.

In their separate answers, the defendants denied that there was any negligence on the part of the defendant, Tjaden and' alleged that plaintiff’s husband’s injuries and death were caused by his own negligence.

The issues in the case were tried to a jury which returned a verdict in favor of the plaintiff in the total sum of $55,502.03. Judgment was entered pursuant to the verdict. Defendant has appealed from the judgment and from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial. There are 46 specifications of error.

We shall first consider the specification that the evidence is insufficient to sustain the verdict. Under this specification defendants assert that there is no proof of any negligence on the part of the defendant, Tjaden, that there is no proof that plaintiff’s husband died as a result of injuries received in the collision and that the evidence with respect to damages will not sustain a verdict and judgment in the amount found and rendered.

On October 2, 1952, plaintiff’s husband, Eddie Geier, in company of a group of people, in three cars, drove from Mandan to Minot for a religious meeting. The cars were owned by a Mr. Ellsworth, a Mr. Phillips and Lieutenant Tollerud of the Salvation Army. They left Minot on the return trip a little after 10 o’clock that evening. At a point about a mile and a half north of Bismarck, the car driven 'by Mr. ■Phillips ran out of gasoline. The ’three cars stopped at the side of the road and it was decided that Lt. Tollerud should go to town for gasoline. There is a direct conflict in the testimony as to the position of the parked cars upon the highway. ' Plaintiff’s witnesses testified they were parked entirely'upon the shoulder of the highway and that there was at least 18 inches clearance between the outer edge of the surfaced portion of the highway and the bodies of the cars. Defendants’ witnesses testified that the parked cars extended about three feet over the surfaced portion of the highway which viras 23 ft. -wide.

The defendant, Tjaden, driving a passenger bus' upon a regularly scheduled trip for the defendant transportation company, left Minot at about 11 o’clock ,p. m. His destination was Bismarck. He drove at a speed of about 50 miles per hour and at about 1 o’clock a. m. had reached a point about 2 miles north of Bismarck. According to Tjaden’s testimony, as he came over a slight elevation in the highway, he noticed the white lights of a car approaching from the south and saw red lights of a southbound vehicle. As the car approached from the south its bright lights blinded him to the extent that he could no longer see the red light upon the car ahead of him. He reduced his speed to 45 miles per hour. As the northbound car passed him, he again saw the red lights, but at that time they were immediately ahead of him and there no longer remained sufficient space to turn out and avoid a collision. The right front end of the bus struck the left rear of the Ellsworth car in which plaintiff’s husband was sitting. Plaintiff’s husband received serious injuries the treatment of which required surgery. He died ten days after the operation. The immediate cause of ■death was a pulmonary embolism.

In considering the question of the sufficiency of the evidence to sustain a verdict, we must take that view of the evidence most favorable to the successful party. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873. Questions of negligence and probable cause are ordinarily questions of fact for the jury.' They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion therefrom. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816.

We must assume therefore that the defendant, Tjaden, as he was nearing Bismarck, saw the rear light of a vehicle about 300 to 450 feet ahead of him; that 9-t the same time he saw the bright lights of an approaching car, that the glare from the bright lights obscured his view of the red light which he had seen, that he took his foot off the accelerator and slowed down from 50:to 45 miles per hour; that after the glaring lights -had passed, he saw the car in which plaintiff’s husband was sitting too late to avoid a collision although that car was parked entirely off of the surfaced portion of the highway and there were no other vehicles in the vicinity which restricted his opportunity to use the entire surfaced portion of the highway in passing.

The negligence alleged is that the defendant Tjaden drove at a speed which was unreasonable in the circumstances without maintaining proper lookout and control. Tjaden knew there was a vehicle on the highway, 300 to 450 ahead of him, knowing this he made no attempt to reduce his speed below 45 miles per hour when his view of the rear light of that vehicle was obscured by the glare of approaching lights. He did not stay on the surfaced portion of the highway although there was no reason for not doing so, but drove with his right wheels at least two feet out on the shoulder of the road. Whether this conduct shows an absence of reasonable care in guarding against a potential danger which he knew lay ahead of him or a failure to keep his vehicle under proper control are questions upon which reasonable men could at least disagree. The evidence is therefore sufficient to sustain a finding of negligence.

The physician who attended plaintiff’s decedent testified that in his opinion his death was directly caused by his injuries. It is clear therefore that the evidence is sufficient to support a verdict for the plaintiff. We shall consider the specification .that it is insufficient to support a verdict in the amount found in connection with the assignment that it was error for the trial judge to refuse a request that the jury be instructed that their award of damages for future loss should 'be limited to the present cash value thereof.

The requested instruction was as follows:

“You are instructed that damages, if any, are awarded for pecuniary loss to the wife and children arising out of what the deceased might reasonably have been expected to contribute to the support of such wife and children, then such damages should be measured by the present cash value thereof.”

This requested instruction states the correct rule. Corpus Juris states the rule as follows:

“The sum recoverable is not an amount equal to the total pecuniary benefits lost but it is limited to the present cash value thereof.” 25 C.J.S., Death, § 101, p. 1246.

American Jurisprudence states:

“By the great weight of authority, where the damages to be awarded for wrongfully causing the death of a person are compensation to designated relatives for their pecuniary loss, both immediate and prospective, so far as the loss is prospective, the gross amount thereof should be reduced to its present worth.” 16 Am.Jur. (Death, Sec. 202) 138.

The practical applicability of this rule to the instant case is made very apparent by the fact that the deceased’s life expectancy at the time of his death was more than 40 years. Thus the gross amount of the prospective damages invested at 2½% would provide an annual income equal to tire annual loss without ever encroaching upon the principal. It is clear that an award in such an amount would be excessive. It follows that the refusal to give the requested instruction was error. Was this error prejudicial to the defendants?

The record discloses that the deceased enlisted in the U. S. Navy on July 21, 1943, when he was 17 years of age. At the time of his separation from the service in January 1946 he held a temporary rating of Gunner’s Mate 3c. In January 1947, he enlisted in the U. S. Army with the grade of corporal. He was discharged as corporal in January 1950. His army separation qualification record shows that for 12 months of his service he was a truck driver, for 6 months a rigger and for 18 months a special vehicle operator. A special vehicle operator “operates large semitrailer, trailer trucks, wrecking equipment, refueling units, diesel powered towing equipment ánd other special purpose vehicles used in connection with construction, salvage or transportation activities, and operates special equipment with which vehicle is outfitted.” The deceased was married while he was in the army on September 2, 1947. After his discharge from the army he and his wife visited for about a month in Mandan, N. D. Then they went to the wife’s home where they visited for an unstated period of time. After this visit they returned to Mandan. They later moved to Minneapolis where the deceased entered a government refrigeration school. He left school because his allowance was not enough to support him and his wife and one child. He then took employment with a steel company. In this employment which lasted about a year he earned from $60 to $75 a week. He left this employment because of the danger involved, and went to work for Western Alloy Casting Company at $50 to $65 a week. He returned to Mandan in July 1952, and took a job as a filling station attendant at “about $200 a month”. At the time time of his death in October 1952 he was working as a bricklayer’s helper at “about $60 a week”. He never had employment as a heavy equipment operator after his discharge from the army although his wife testified, without objection, that he had registered with the North Dakota Employment Service for employment in that capacity. The Geiers had acquired no property of any kind during their five years of married life. They had two children at the time of Edward Geier’s death and a third child was born in January 1953. Mrs. Geier testified that her husband neither drank intoxicating liquors nor smoked and that he devoted all his income to family purposes. In his argument to the jury counsel for plaintiff asked the jury to multiply the deceased’s average annual earnings by the number of his years of life expectancy in assessing damages for prospective loss. Counsel for defendants argued that the award of damages should be limited to present value. With respect to prospective loss the trial judge charged, “The widow and children of deceased may recover for aid, support and benefits which deceased was obligated to furnish, or which they were receiving, or which they had any reasonable expectancy of receiving from him during his lifetime.” The verdict of the jury was for special damages in the sum of $1,934.03 and general damages in the sum of $53,568.

Counsel for plaintiff argues that in view of the size of the verdict this court cannot say that the jury did not make its award upon the basis of the present value of prospective damages in accordance with the argument of defendants’ counsel and that consequently the failure to give the requested instruction was not prejudicial even though error. He cites the case of Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, in support of this contention. In that case we said, 48 N.W.2d 914:

“It is true that no such instruction was given but the instructions given did not ‘inhibit or negative computation of damages on the basis of present worth’ * * * and it has been said that in such case the court ‘cannot assume that the jury did not, in fact, so reach its determination’. Ingebretsen v. Minneapolis & St. L. R. Co., 176 Iowa 74, 155 N.W. 327, 332”.

While the foregoing statement was clearly obiter it suggests an approval of the Iowa decision.

There is no question but that the award of damages, in this case, is supported by the evidence when subjected to the present value test. The evidence is that deceased’s earnings varied from $200 a month to $75 a week. The jury could well have found that his earnings had been an average of $60 a week. The evidence is that the deceased was a man of exemplary habits who devoted all of his income to family purposes. The jury could have found that the family benefited to the extent of two-thirds of his income or $40 a week. The present value of $40 a week for 40 years at 2½% is $52,840, at 3% is $48,760 and at 4% is $41,760. Thus the prospective money damages alone, without taking into consideration any future increase in earnings which the deceased might reasonably have been expected to obtain, almost equals the amount of the verdict tested upon a present value basis. The difference even when the computation is made upon a 4% discount basis does not constitute an excessive award for other elements of damages such as the loss of the care and protection of a husband and father, his counsel and advice and other intangibles, the award for which must be left largely with the discretion of the jury. See Dahl v. North American Creameries, N.D., 61 N.W.2d 916. Upon the evidence, we consider the verdict reasonable. Although there are decisions to the contrary we think the better rule of law is that, where the verdict is reasonable under the evidence when tested on the basis of present value and where the instructions do not preclude an award on a present value basis, the trial court’s failure to instruct the jury to limit recovery for prospective damages to their present worth is not prejudicial error. Dierks Lumber & Coal Co. v. Tollett, 178 Ark. 199, 10 S.W.2d 5; Louisville & N. R. Co. v. Asher’s Adm’r, 178 Ky. 67, 198 S.W. 548, L.R.A.1918B, 211; Swauger v. People’s Natural Gas Co., 251 Pa. 287, 96 A. 712.

The next specifications of error to be considered are that the trial judge refused to give requested instructions 2, 3 and 4. These instructions all relate to defendant Tjaden’s testimony that he was temporarily blinded by bright lights.

Requested instruction 4 read:

“You are instructed that temporary blinding caused by bright lights of an oncoming or parked vehicle has been recognized as a legally sufficient excuse for failing to stop within the assured clear distance ahead and if you find, from the evidence in this case, that defendant driver was temporarily blinded by bright lights of an oncoming vehicle, then that is a legally sufficient excuse for his not stopping within the assured clear distance ahead.”

In support of this request defendant cites the case of Lostegaard v. Bauer, 78 N.D. 711, 51 N.W.2d 761. In that case, we sustained a verdict of a jury, saying that where a plaintiff was temporarily blinded by bright lights, reasonable men could disagree upon whether her failure to stop within the assured clear distance ahead was contributory negligence and therefore the question was one for the jury. We did not say that temporary blinding by bright lights was a legally sufficient excuse for not stopping. The jury had before them the evidence and the usual instructions and it was for them to say in view of all the circumstances, including the bright lights, whether the defendant driver’s conduct stood the test of ordinary prudence. The refusal to give these requested instructions was not error.

We will next consider the specification that the trial judge erred in instructing the jury:

“The Jury may also consider the possibility that Edward Geier might be able to better his position with continued service in the construction business.”

Counsel for defendant states that this instruction opens for the jury a field of speculation and conjecture.- However, in telling the jury what damages might be awarded the trial judge stated: “You may consider the probable future earning capacity of the deceased * * *. The widow and children may recover benefits * * * which they had any reasonable expectancy of receiving during his lifetime. You are not permitted to award speculative damages, by which term is meant compensation for prospective detriment, which, although possible, is remote, conjectural or speculative.”

When the instructions are considered as a whole it appears that defendants were fully protected against an award of speculative damages.

The next- specifications to be considered are those- relating to the evidence of deceased’s qualifications for employment at a higher rate of income than he had been receiving prior to his death and to the opportunities for such employment.

The deceased’s “Army Separation Qualification 'Record”, showing that deceased was a qualified operator of special heavy equipment with 18 months experience was received in evidence over the objection that it was immaterial. There was no objection to the foundation. The admission of this record was not error.

“Evidence is competent to show the earnings of decedent in an occupation different from, and more remunerative than, the occupation in which he was engaged at the time of his death, or that he was skilled in trades other than the one in which he 'was engaged at the time of his death; * * 25 C.J.S., Death, § 123, p. 1293.

A construction contractor who testified on behalf of the plaintiff testified that in 1953, the year following deceased’s death, heavy equipment operators, who had the qualifications shown by deceased’s army record, were in demand and the wages paid such operators were from $500 to $600 .per month. This testimony was received over the objection that it went “into the field of guess work and speculation so far as” the .deceased’s earnings were concerned. The testimony was properly admitted. If it is proper to admit testimony as to skill at other trades it follows that testimony as to opportunity for employment at those trades and the wages paid therein is admissible so that the jury may determine whether the deceased 'had reasonable certainty of bettering his employment and to what extent it would be bettered. This testimony tends to remove evidence of skills from the field of speculation. Certainly evidence of skill alone without any evidence of opportunity for employment of the skill, or the wages it would earn, would leave the jury in a position where they could only speculate upon the question of betterment.

Defendant also specified that it was error for the trial court to take judicial notice of the mortality table published in 58 C.J.S., p. 1212. Section 31-0805, NDRC 1943, provides:

“In all cases in which probable duration of the natural life of any person from and after a particular age is material, standard statistical tables of mortality are competent evidence of such probable duration or expectation of life.”

It is customary and proper for such tables to become a part of the evidence in a case by way of judicial notice. 31 C.J.S., Evidence, § 98, p. 698; 20 Am. Jur. 113. Defendants’ objection is not that the court took judicial notice of a mortality table but that judicial notice was taken of a table that was not standard. Whether the table was a standard mortality table was a question for the trial judge. He determined that the table was a standard table and there is nothing in the record to show that it was not. This specification is therefore not sustained.

Another specification is that the trial court erred in excluding certain opinion evidence defendants sought to elicit from Mr. Harty, the president of the defendant corporation. He was asked for an opinion' as to whether a bus could be driven with its right wheels on the graveled shoulder of the highway and its left wheels on the portion of the highway that was surfaced with blacktop. The question was prefaced with the statement:

“Basing your testimony upon all the facts as claimed to have been in existence there by plaintiff’s witnesses”.

The question was objected to upon the grounds that there was no foundation laid and that it called for a conclusion of the witness. The objection to the foundation was properly sustained as there is nothing in the record to show that the witness heard or knew what the witnesses for the' plaintiff claimed the facts to be. Further the testimony is that the witness was' an executive officer,1 that he had not driven a bus for three years and that there is no testimony that he had ever driven a bus of the type involved in this action. There is therefore no merit in this specification.

We next consider the specification that defendants’ cross-examination of the physician who testified as to the cause of decedent’s death was unduly limited. The autopsy established that death had been caused by a pulmonary embolism. The physician had testified that in his opinion death had resulted from the injuries suffered by the decedent. The record also showed that decedent’s injuries were such that an operation was imperative in their treatment. Defendants attempted- to establish by cross-examination of this physician that the pulmonary embolism might have been the result of the operation rather than of the.original injuries. Objections that the questions were immaterial were sustained. The sustaining of the objections was not error. In so far as defendants’ liability is concerned, ■ -whether- the original injury or the operation caused .the embolism is of no importance for in either case the causal chain reaches back to the defendant Tjaden’s negligence. Necessary surgical treatment of an injury proximately caused by a defendant’s' negligence, even though it be the immediate cause of death is not an independent intervening cause which will relieve the'defendant, of liability. 25 C.J.S., Death, § 25, p. 1094; 16 Am.Jur. (Death, Sec. 79) 59; Horney v. St. Louis & Northeastern Railway Company, 165 Ill.App. 547; Blackwell v. American Film Co., 189 Cal. 689, 209 P. 999.

There are other specifications that the exclusion of testimony offered by the defendants was error. In the case of each we have examined the record and have found that the exclusions were only temporary in nature for in each case the witnesses had previously or subsequently stated the facts sought to be elicited. Pearce v. Hanlon, 60 N.D. 231, 233 N.W. 840,.

The specification as to the excessiveness of the verdict is eliminated by our consideration, earlier in this opinion, of the reasonableness of the verdict. We have found that the verdict was reasonable under the evidence.

We have also considered the specifications as to, the alleged prejudicial arguments of counsel .for the plaintiff. Upon the whole record we are satisfied that these arguments, even if of doubtful propriety, did not affect the verdict prejudicially or deprive the defendants ofa fair trial. In such cases the verdict will not be disturbed. Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282.

Since we have found no prejudicial error in the case, the judgment of the trial court is .affirmed.

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


text:
    John BURR, Administrator of the Estate of Emily Kelley Worst, Deceased, Plaintiff and Appellant, v. Loretta J. KELLEY, Defendant and Respondent.
    No. 7467.
    Supreme Court of North Dakota.
    Jan. 17, 1956.
    C. N. Cottingham, Fairview, Montana, and Robert W. Palda, Minot, for appellant.
    Walter O. Burk, Williston, for respondent.
   BURKE, Chief Justice.

John Burr is the administrator, with the will annexed, of the estate of Emily Kelley Worst, deceased. He brought this action on behalf of the estate of the deceased, seeking an adjudication that a certain deed executed and delivered by the deceased to the defendant, Loretta J. Kelley was in fact a mortgage. The plaintiff has appealed from ah adverse decision of the District Court. Upon this appeal a trial de novo is demanded and the only'question is whether the evidence supports the findings and conclusions of the trial court which sustained the defendant’s contention that the deed was an unconditional conveyance.

The land involved in this suit is an 80 acre tract in McKenzie County. It was acquired by the deceased in 1911. In 1933, the deceased lost title to the land by the foreclosure of a mortgage held by Dilla I. Phillips, but she continued to live thereon and in December 1936, she purchased the land by executing a contract for deed to Miss Phillips. Upon the execution of the deed, deceased made an initial payment of $1,500 and the contract obligated her to pay $1,000 each succeeding year until the contract price of $7,000 with interest at 6% per annum was paid. Deceased made the payment of $1,000 in December 1937, but early in 1938 she became aware that she would be unable to meet the payment which would become due in December of that year. The deceased’s sister, the defendant in this action who lived in Washington, D. C, had helped deceased on previous occasions when she needed money. In 1928, defendant had sent the deceased almost $800 to pay back taxes and in 1938, the total advances she had made to help the deceased amounted to about $1,200. In the spring of 1938 deceased again wrote the defendant asking for financial assistance. Defendant did not answer her first letter so deceased wrote to her' again on May 28th, 1938. This letter in so far as it is pertinent is as follows:

“Dear Lollie:
“You haven’t answered my letter and I suppose you are mad because I am expecting you to help me save the place and give me a chance to buy it back.
“I am enclosing the deed to you and a contract agreement, and a copy of it for you to sign and send me the copy, (if you will sell it back to me).
“I’ll have to offer Phillips $4,000.00 as there’s no chance of getting it for less and I don’t believe he will take it at all as a snake living on the place joining me on the north has been chasing him, pushing $8,000.00 under his nose for several years — I saw him coming out of there, the other day and he may have the place bought from Phillips by now. People ask me why I don’t try to raise the money, some way to save it and I told a friend that you might help'me, but I’wasn’t sure and he said, anyone that would not grab at a chance to get a place like this for $4,000.00 must be crazy!
“You can sell it at any time for $8,-000.00 if we can get it * * *.
“I saw the banker of the Sidney National Bank, Mr. J. A. Loken and he will help us deal with Phillips, if you will send the $4,000.00 to;that bank— to be held for Phillips if he will accept it and give a deed.”

Thereafter the defendant sent $4,000 to the bank at Sidney to be turned over to Dilla I. Phillips upon the execution and delivery of a deed to- the property to the defendant through the agency of the bank. This transaction was completed, the deed was recorded and forwarded to the defendant in Washington. On the same day this deed was executed the deceased executed and delivered to Dilla I. Phillips five promissory notes in the sum of $100.00 each. These notes were at a later date paid by the deceased.

The defendant never executed the contract for deed which deceased had forwarded with the deed she sent her and the deed from the deceased to the defendant was not recorded until after the death of the deceased in 1952.

From the time of the transfer from Phillips to the defendant, the deceased, up to the time of her death, continued to live on the land. Some years she farmed all of it herself. In some years she leased it to other persons. She took all of the proceeds of the crops and made no accounting therefor to the defendant. The land was irrigated land and with minor exceptions the deceased paid all of the irrigation charges while the defendant paid all of the. taxes. The insurance on the farm buildings .was carried by the deceased and when the dwelling house thereon burned down the deceased replaced it with a basement structure which was presumably paid for with the proceeds of the insurance. Certain repairs on other farm buildings were made by the deceased although the' •extent and cost thereof is not made clear by the evidence.

As with other contracts the controlling factor in determining whether a deed, absolute on its face, was executed as a mortgage is what the intention of the parties was at the time of the execution of the instrument. Ginter v. Ginter, N.D., 63 N.W.2d 394; Mechtle v. Topp, 78 N.D. 789, 52 N.W.2d 842; Sec. 47-1013, NDRC 1943.

Here in so far as the record shows, all of the negotiations between the parties to the deed were conducted by mail. The first letter written by the deceased to the defendant is not in evidence. It appears, however, that defendant did not answer that letter. The second letter contains deceásed’s proposal to the defendant. It expresses a hope that defendant will help deceased save her land and sell it back to her. There were contained in this letter a deed executed by deceased, and a contract for deed which was to be executed by the defendant if she would sell it back. The clear import of the letter is that the deed was intended as an absolute conveyance, that it was not delivered upon condition that defendant sell the land back but that it was left to defendant’s option whether she would sell the land back or not. Some seven months after the receipt of this letter defendant purchased the land from Dilla I. Phillips. There is nothing in the record as to what transpired in the meantime.

Defendant’s testimony as to what the final arrangement was that “she (the deceased) was to keep the taxes paid as long as I let her have use of the land. I was to let her live there and it was to be a home place. She could live there and Elizabeth could live there and when I came to retire, if I wanted to live there, I wanted a home place of my own. I wanted a place for both she and Elizabeth and myself when I needed it, or any member of the family that wanted to could go there and live.”

We do not think the proof offered by the plaintiff is sufficient to overcome defendant’s positive testimony as to the nature of the transaction.

Before a deed absolute on its face-will be declared a mortgage, the proof that it was intended as such must be clear, satisfactory and convincing. Mechtle v. Topp,. 78 N.D. 789, 52 N.W.2d 842; State v.. Crum, 70 N.D. 177, 292 N.W. 392; Alten-brun v. First National Bank, 47 N.D. 266,. 181 N.W. 590, 908.

Loretta Kelley, Emily Kelley Worst and Elizabeth Kelley Delbon were sisters.. Elizabeth was an invalid and to a large extent was dependent upon her brothers and sisters for care and support. She lived a large part of the time on the farm with Emily and from time to time Loretta sent, her money. Loretta had also sent Emily about $1,200 between 1928 and 1932 to help her save the land. Despite this assistance she lost the land by foreclosure in 1933. In December 1936 Emily bought the land back on contract for deed. In the spring of 1938, Emily again sought Loretta’s aid to help save the farm, despite the fact that she had made no payments of either principal or interest on prior advances from Loretta, some of which had been made at least ten years previously. In furtherance of this, request she sent Loretta a deed to the land and informed her that she could purchase Dilla Phillips’ interest for $4,000. At the same time she offered to buy the land back if Loretta would sell it to her. The amount of the offer according to the proposed contract was $5,000, payable in annual installments of $500 each with interest at six per cent per annum. Loretta never signed this contract. Presumably she replied to Emily’s letter in which the offer was made, as she testified that she wrote Emily several times between May and December 1938. None of this correspondence is in the record. In December 1938, Loretta paid Dilla Phillips $4,000 and received a deed to the land through the agency of the bank at Sidney. Emily was present and assisted in completing this transaction although Loretta had not accepted her offer to buy the land back. We see nothing unreasonable in Loretta’s refusal to extend Emily the necessary credit to allow her to buy the land. She had failed twice in her previous attempts to save and buy this land. She had failed to pay Loretta any of the money she had advanced in prior years. In fact it would have been reasonable for Loretta to assume that the payments offered by Emily would not be made, and that the contract, if executed, would soon be in default. It was not unreasonable' for Emily to accept the arrangement as testified to by Loretta. That is, that Loretta should buy the place as a family home, particularly for herself, Emily and Elizabeth and that Emily should have all the income from the farm and keep it up. It was a family arrangement, by which the solvent member provided security for all.

That Emily thereafter carried the insurance on the place, rebuilt the home which was destroyed by fire, made, some repairs on the buildings, took all the crops and paid the irrigation charges are not facts which are in any way inconsistent with that agreement. That Emily thereafter made no payments of any kind to Loretta to pay back the $5,200 Loretta had advanced in connection with this land and that Loretta made no demands for any payments during the 14 years that elapsed between the giving of the deed and Emily’s death, are facts from which it may be inferred that whatever indebtedness Emily owed Loretta was ■considered satisfied by the deed. Furthermore, the evidence shows that a few years ■before she died Emily stated to a prospective purchaser of the land that she could not sell it because it belonged to her sister Loretta Kelley. The only circumstance in the case which is to any extent, inconsistent with defendant’s testimony is the fact that in a letter to her sister Elizabeth, written in 1946, she stated: “I don’t give a d-what she does, or how soon she sells the only thing I, am concerned with is the amount owing to me which will amount to around $7,000. I am’ not stopping her from selling it if she can get anybody to buy and she can have all she can get over and above what is due me.” This statement, in so far as it refers to an indebtedness is consistent with a security transaction as claimed by plaintiff, however, the second part of the statement in which Loretta assumes that she had the power to decide whether the land should be sold or not and to determine the extent to which Emily should share in the proceeds are consistent with her claim that she bought the land and inconsistent with the claim that the deed was given as security only.

The evidence in this case is to the effect that both parties to the deed construed it as an absolute conveyance. The administrator plaintiff asks that this evidence be disregarded because of circumstances which he says are inconsistent with that construction. In our opinion, these circumstances are not sufficiently persuasive to constitute proof that is clear and convincing.

We have considered this case upon the theory advanced by the pleadings, followed by the trial court and argued to this court upon appeal. There is, however, a serious question as to whether the relief sought by plaintiff in this action would have been proper even if the facts had been found to be as alleged in the complaint. We do not decide that question for the reason that our finding, that the deed given by the deceased to the defendant was an absolute conveyance, settles the case. The judgment of the District Court is therefore affirmed.

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


author: GRIMSON, Judge.'

text:
    Mary C. OLSON, Plaintiff and Respondent, v. S. W. THOMPSON, as Highway Commissioner of the State of North Dakota, Defendant and Appellant.
    No. 7540.
    Supreme Court of North Dakota.
    Jan. 18, 1956.
    Rehearing Denied Feb. 3, 1956.

      Leslie R. Burgum, Atty. Gen., Vernon R. Pederson, Sp. Asst. Atty. Gen., Ray R. Friederich, State’s Atty., Conrad J. Ziegler, Asst. State’s Atty., Rugby, for appellant. '
    L. L. Butterwick, Minnewaukan, for respondent. - ' ■
   GRIMSON, Judge.'

The controversy involved in this action arises out of the laying out in 1953 of state highway No. 3 through -Pierce County, across the farm of the plaintiff. Plaintiff’s farm consisted of the W½ and the NEj4 of the SW14 of Section 20, and the NWi/4 of the NW14 of Section 29, all 'in Township 153 North, Range 72 West, a total of 160 acres. The strip of-land taken for the highway crosses the northeast corner of the NWj4.of the NWj4 of Section 29, totaling 2.50 acres, and runs diagonally in a northwesterly direction, across the SW}4 of the SWJ4 of Section 20, totaling 6.43 acres. ' "

The county commissioners 'of Pierce County were unable to make a purchase of this right of way from, the plaintiff ánd-in order .to obtain title proceeded under Chapter 24-07, NDRC 1943. After a hearing they made awards of damages for the land taken in the NWj4 of NW14 of Section 29 as follows:

“For value ol land taken, 2.50 aeres at $30.00, $75.00 Damage to fence, ' 20.00
Damage to trees — 12- 9.00
For damages to adjoining remainder of land belonging to same owner, being decrease in market value of such adjoining land . , not taken $-
Less benefit to be derived to such land ■hot taken by establishment of highway, $-
Allowance for land not taken, Damage to garden & all other damages ■ ’ $75.00
Total awards, $179.00”

and for the land taken in the SWj4 of SWJ4 of Section 20, as follows:

“‘For value of land taken, 6.43 acres at $15.00 $96.45 For fence and all other damages, 50.00
For damages to adjoining remainder of land belonging to same owner, being decrease in market value of such adjoining land not taken, $
Less benefit to be derived to such land not taken by establishment of highway, $-
Allowance for land not taken, $-
Total awards $146.45'*

The plaintiff was dissatisfied with the amounts so awarded and appealed to the district court. Upon trial in district court the jury brought in a joint verdict for the plaintiff as follows:

"1. For the land actually taken, $171.45
2. For the resultant damages, It any, to the remainder ot the land, $-
3. Special damages, if any, for the destruction of the spring and any other damage, If any, as may have been suffered, $154.00"

The plaintiff immediately moved for a new trial on the following grounds:

“1. The insufficiency of evidence to justify the verdict and that it is against the law;
“2. That the verdict is so inadequate as to be a plain disregard by the jury of the instruction of the Court and was rendered under the influence of prejudice.”

The court granted the motion and

“Ordered that the verdict herein be set aside and a new trial granted upon the ground and for the reason that the verdict was inadequate to a degree incommensurate with substantial justice and was not justified by the evidence.”

From that order the defendant appeals, assigning as error that the court erred in making the order in that it was based upon an erroneous view of the facts and of the law, and “That the order setting aside the verdict and granting a new trial based upon the testimony and the evidence produced is an abuse of the discretion of the court.”

The court in its memorandum opinion states that its action is based upon Section 28-1902, Section 6, NDRC 1943, which provides that the court may grant a new trial upon the “insufficiency of the evidence to justify the .verdict or the decision, or that it is against the law.” The court cites Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240, 241, in which this court held that a new trial may be granted under that provision, “Where the evidence discloses that damages awarded by a jury are inadequate to a degree incommensurate with substantial justice.”

This court has repeatedly passed upon the matter of granting a new trial by the district court. In Crossen v. Rognlie, N.D., 68 N.W.2d 110, 112, this court said:

“A new trial on the application of the party aggrieved may be granted on the ground of the insufficiency of the evidence to justify the verdict or that it is against the law. Section 28-1902, subdivision 6, NDRC 1943. It has been repeatedly held by this court, that the question of whether a new trial should be granted because of the insufficiency of the evidence is within the sound discretion of the trial court. Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg.Rep. 619; Froh v. Hein, 76 N. D. 701, 39 N.W.2d 11; Haslam v. Babcock, 71 N.D. 363, 366, 1 N.W.2d 335; Burdick v. Mann, 60 N.D. 710, 236 N. W. 340, 82 A.L.R. 1443; Baird v. Clooten, 60 N.D. 699, 236 N.W. 356; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64.

It is only when the trial court has abused its discretion that its ruling will be disturbed. Baird v. Clooten, 60 N.D. 699, 236 N.W. 356; Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Neg.Rep. 619; Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Johnson v. Patterson, 67 N.D. 132, 270 N.W. 97; Krueger v. North American Creameries, 75 N.D. 264, 27 N.W.2d 240; Kohler v. Stephens, 74 N.D. 655, 24 N.W. 2d 64; Martin v. Parkins, 55 N.D. 339, 213 N.W. 574; Baird v. Unterseher, 57

N.D. 885, 224 N.W. 306; State v. Hummel, 73 N.D. 308, 14 N.W.2d 368.

We must, therefore, consider the evidence to determine whether the trial court abused its discretion. The following plat Ex. 1, in the evidence, shows the layout of the highway across plaintiff’s farm.

The undisputed evidence discloses that the plaintiff and her late husband homesteaded this land and have lived on it ever since. They have developed it mainly as a stock farm. About 70 acres are suitable for cultivation and are now used to raise feed grains. The plaintiff and her husband built a substantial, five room house, 16 x 16 feet with a kitchen extension 14 x 14 feet, and having an upstairs and basement. The house was built on a stone foundation, and equipped with a hot air furnace. It had electricity for both light and power, was painted and in good repair. It is now occupied by the plaintiff as a home. They built a barn 30 feet wide, and SO feet long, with 12 foot posts, and peak 27 feet from the ground. It had a gambril roof, with cedar shingles, a concrete foundation, concrete gutters and cow stands. Then they built a combined granary and garage 16 feet wide, 22 feet long, with concrete foundation. It had a pitch roof with cedar shingles. All buildings were at the time of this action in good repair. A grove had been planted to the east and south of the house. They had a garden between the house and the grove, and had built a dam for a pool to retain water for the garden. The highway was laid out through the northeast corner of the NW}4 of the NW}4 of Section 29, .cutting through the grove within 200 feet of the house, taking part of the garden, destroying the dam beside it, and leaving a triangular area, .7 of an acre in the southeast corner separated by the highway from the rest of plaintiff’s land. The highway then cut diagonally across plaintiff’s pasture which covers all of the SW14 of the SWJ4 of Section 20 and was fenced, leaving 8.6 acres southwest of the highway separated from 23 acres northeast of the highway. The fences at the entrances and exit of the highway were destroyed and new fences on each side of the highway were necessary. The witnesses estimated the cost of those fences from $300 to $750. Plaintiffs claimed that there was a natural spring of water in the pasture which they had developed by clearing off some surface so as to get to the sand through which they claimed the water came, and which had made a fine watering place for the stock and that there had continually been water in this spring through all the dry years sufficient to water their stock. The value of this spring to a stock farm was estimated up to $1,000. The defendant’s witnesses, however, claimed that this was just an ordinary water hole. The highway was laid over this spring, destroying it entirely. The pasture and hay land was valued at from $2 to $15 per acre and the cultivated land up to $35 per acre without any improvements. Some of the plaintiff's witnesses testified that the consequential damages were from $8 to $10 per acre. The defendants, however, claimed that the benefits to the farm of the highway were worth from $5 to $18 per acre. The higher figures, except in this last instance, were given by the plaintiff’s witnesses who were neighbors, well acquainted with the premises. The lower figures were given by the defendant’s witnesses, whose testimony was more general.

It will be noticed that the verdict brought in by the jury is in the exact amount of the total award of the county commissioners. The commissioners allowed $75 for the land taken in Section 29, and $96.45 for the portion taken in Section 20, or a total of $171.45, which is the amount of tlie verdict for the land taken. The commissioners allowed $104 for damages to the land taken in Section 29, and $50 for the damages to the land in Section 20, a total of $154 which is the allowance for damages made by the jury.

Two of the commissioners of Pierce County who made the allowances were witnesses for the defendant. One of them, Peter Hoffart, testified:

“Q. And you describe the property that you appraised at $15.00 per acre. A. Well, you know we had one system that we appraised prairie land at $15.00.
“Q. That is the price you have been using in appraising the right of ways ? A. To be fair to all of them. * * ”.

After describing that land as common isture land he was asked what other fac•tor he considered and answered, We gave Rim some damage for trees and for the little fence that he had there and that is about all the damage that I could see that we done there?

“Q. You have actually never appraised the Olson land other than the part you were purchasing for a right of way, is that right? A. Yes.
“Q. Have you appraised land that you felt is of the same or comparable value or quality? A. There is quite a bit all along the line, about the same quality and some better land than that yet, and we just gave them $15.00 and they were satisfied.
* * * * * *
“Q. As a matter of fact you were valuing the land without giving any to the buildings? A. That is right.
******
“Q. And you didn’t consider the value of the barn at all? A. No, I thought we wouldn’t affect it and so we didn’t consider it. ■
“Q. The granary? A. No.
“Q. Nor the miles of fencing he had on the farm? A. We didn’t destroy any fence. That always sells with the farm regardless what you got on it.
* * * * * *
“Q. Heretofore you testified $15.00 an acre was your usual value you appraisers put on it. A. Yes.
“Q. And you put that whether there were any buildings or not? A. That is right.”

Nick Axtman, another one of the commissioners, testified:

“Q. In connection with other county commissioners you were responsible for the awards determined and made in accordance with Exhibits 2 and 3? - A. Yes.
“Q. In Section twenty would you tell me what value you placed upon the land? A. Fifteen Dollars an acre.'
. * * * * * *
“Q. How did you arrive at the value of $15.00-per acre when you made that appraisal? A. Well, it is prairie land and that is what we allow for prairie land or fenced or hay meadow at that -time.
‘ Q. Did he object or was he worked up about the fact that the road was going to go through his farm right where this water hole was located ? A. Well, he mentioned the water hole. That is correct. * * * *
“Q. Rut did you consider this was .going to be a serious damage to his pasture or something that could not be> replaced? A. No.
* * ’ * * * *
“Q. Well, now, when you appraised beyond the coulee, what value did you place on ordinary field land? A. Tillable land?
“Q. Yes. A. Thirty Dollars. ■
“Q. On ordinary tillable land, $30.-00? A. Yes.
“Q. And pasture land at fifteen dollars? A.' That is right.
“Q. And no particular consideration given, special consideration given, to the farm you were looking at, whether it had buildings or didn’t have buildings? A. Well, the land was always sold and not the buildings. The buildings go with it.
* * * * * *
“Q. Any farm you looked at? A. Well, no.
“Q. If a piece of land had a couple of buildings on it and was within your -thirty dollar classification and you had another farm a little further on that had no buildings but the same kind of land, you gave both of them thirty' dollars an acre? A. That is right.
* * * * * *
“Q. As a matter of fact you didn’t take the value of the buildings into consideration at all when you fixed the value of fifteen dollars an acre on the land, did you? A. No, we appraised the land, not the buildings.”

The evidence shows that plaintiff’s property had been developed as a farm unit for the raising of stock. That farm unit included not only the residence but also the barn, granary, garage, fences, watering place and everything necessary for the development of such a farm enterprise. The farm was established, maintained and operated as a single unit. The buildings were a part of the realty and certainly added value thereto. The improvements made it possible to operate the farm as an economic unit. In the evidence, however, the witnesses testified separately to the value of the improvements and to the value of the land without improvements. There was no evidence of the value of the farm as a whole.

The question is raised as to whether the value of a farm unit like that here involved may be proven by showing the value of the buildings and improvements separately from the value of the bare land. Section 32-1522, NDRC 1943, provides that the jury must ascertain and assess damages as follows:

“1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or interest therein. If it consists of different parcels, the value of each parcel and each estate and interest therein shall be separately assessed;
2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff;
“3. * * *
“4. * * *

In Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808, 809, this court held:

“Where a highway is established across a farm on which there is a set of permanent farm buildings, which farm including the buildings thereon constitutes, and is maintained and operated as, a single unit; and a part of such farm is taken for highway purposes and the buildings remain upon the part of the land not taken, the land and the buildings upon it constitute one piece of property, and the value of the farm before the severance is to be ascertained by considering the property as a whole.”

In 4 Sutherland, Damages, 4th Ed., p. 4129, “Land and buildings upon it constitute but one piece of property and benefits and damages are to be ascertained by ascertaining the effect upon it as a whole.”

In 2 Lewis, Eminent Domain, 3d Ed., Section 726, p. 1270, it is said:

“The value of the land with and without the improvements may be shown but not the improvements apart from the land.”

In 18 Am.Jur. 892, it is said:

“The general view is that the amount of recovery is to be measured by the value of the land, together with the improvements and fixtures thereon, viewed as a whole and not separately. To-determine the market value as vacant property alone, and then to ascertain to what extent, if any, the improvements enhance such value, is not allowable under a statute requiring assessment of the value of the property sought to be condemned and of all improvements thereon pertaining to the realty.”

In 4 Nichols on Eminent Domain, Sec.. 13.11(2), p. 207:

“An owner is not entitled to have the buildings valued as they stand on the land as separate items in addition to the market value of the land. On the other hand, neither is the condemnor entitled to have the buildings valued apart from the land merely for purposes of removal. The proper measure of damages is the market value of the land with the buildings upon it.” Note 33 on p. 208 cites cases from 14 states as supporting this principle, and 3 states contra.

Clearly the rule adopted in the Lineburg v. Sandven case is to the effect that the valuation of the buildings should be considered in connection with the farm as a whole and not separately. That rule is supported by the weight of authority.

In the instant case the valuations of the buildings separately from the value of the farm were received in evidence without objection. Later that method of proving the value of the property was questioned by the defendant and is now raised in connection with the assignment that the court erred as a matter of law and of fact in granting a new trial on the theory that adding the value of the buildings separately to the value of the farm produced excessive valuation of the property which in comparison with the verdict seemed to the court wholly inadequate. Even so, the evidence does not warrant conclusion that the court erred in granting the new trial.

In addition to the value of the land taken which per acre must be the value of the farm as found by the jury, the jury must also find the damages that will accrue to ■the remaining property by the taking of -that strip for the highway. The value of -those damages was allowed by the jury at ■$154. As separated by the board of county ■commissioners that was for the fence, the -trees and the garden and all other damages on the NWK of 29, $104 and for the fence .and all other damages on the SWj4 of the SWj4 of 20, $50. The evidence showed -that the highway was laid out across plain•tiff’s yard within 200 feet of the house, injuring the grove and the garden, cutting out a triangular .7 acre of his land besides ■the right of way. These invasions of the •yard around plaintiff’s residence are elements to be considered in finding the damages. It may be a question in this automobile age whether or not it is desirable to live in the “house by the side of the road.” Then there is undoubtedly damage to the plaintiff to have her pasture cut in two. The evidence shows that the fencing required on each side of the highway cost more than the $20 allowed. The destruction of the spring, if the jury found it to be a natural, permanent spring,' as plaintiff claims, could hardly be recompensed, together with the fence, at $50. Clearly, there is evidence, irrespective of the value of the bare land plus the value of the improvements, to warrant more allowance for damages than was found by the jury.

We have in the instant case very conflicting evidence on values. We have the testimony of the county commissioners who made the original appraisal. In making that appraisal they had failed to give any consideration to the value of the improvements and little consideration to the damages. The jury adopted their findings of value and damages. Some evidence was received that the pasture land, without improvements was worth $15 and tillable land without improvements $30 per acre. Those were the values found by the jury indicating that they may not have considered the improvements.

It was the duty of the jury to determine, not only the value of the land taken, including improvements, but also whether the plaintiff suffered any detriment to his farm unit by the laying out of that highway through his farmyard and pasture and to return a verdict in an amount sufficient to compensate for the detriment, if any. Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240.

The district judge was in the best position to determine whether the verdict the jury returned on those questions was in accordance with justice. He had the advantage of observing the witnesses and their demeanor, and even the effect upon the jury of their testimony. He had knowledge of all matters incident to the trial itself. These matters he could take into consideration in the exercise of his discretion in passing on the motion for a new trial.

In Crossen v. Rognlie, N.D., 68 N.W.2d 113, it is said:

“The district court may grant a motion for a new trial where there is substantial conflict in the evidence if in its discretion it finds that the evidence does not justify the verdict. Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Haslam v. Babcock, 71 N.D. 363, 366, 1 N.W.2d 335. * * *
“When the court has granted a new trial this court will not disturb such decision if the evidence shows that the trial court exercised legal discretion in the matter. The only question in such cases for the appellate court to consider is whether or not the trial court abused its discretion.' If not, its decision will not be disturbed. ■ ■ (Citing cases.) * * *
“To reverse an order granting a new trial because of the insufficiency of the evidence, this court must be convinced that there are strong and cogent reasons for concluding that the trial court was not exercising, legal discretion in weighing the evidence. Durick v. Winters, 70 N.D. 592, 296 N.W. 744; Martin v. Parkins, 55 N.D. 339, 346, 213 N.W. 574; Butler v. Aetna Ins. Co., 64 N.D. 764, 256 N.W. 214."

In Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240, 241, it was held that “Appellate courts are more reluctant to interfere with the action of a trial court in granting a new trial than where a new trial has been denied.”

Considering the evidence and circumstances shown in the case at bar we have come to the conclusion that the district court did not abuse its discretion when it granted a new trial.

The order of the district court is affirmed.

BURKE, C. ’ J., and JOHNSON, SATHRE, MORRIS, JJ„ concur.