text:
    Gordon LUSTY, Plaintiff and Appellant, v. Arthur OSTLIE, Defendant and Respondent.
    No. 7500.
    Supreme Court of North Dakota.
    Aug. 29, 1955.

      Day, Stokes, Valler. & Gillig, Grand Forks, for appellant.
    Nilles, Oehlert & Nilles, Fargo, for respondent.
   GRIMSON, Judge.

Plaintiff brings this action to recover damages for the partial destruction of his automobile in a collision with a car owned by the defendant. It is alleged in the complaint that the collision was proximately caused by the negligence of the defendant. Defendant makes a general denial, admits the accident but alleges that it' was caused solely by the carelessness, negligence and recklessness of Henry Ulvick, driver of the plaintiff’s car. The case was tried to the jury. The jury found for the defendant for dismissal of the case. After the entry of judgment the plaintiff moved for a new trial on the grounds of the insufficiency of the evidence to sustain the verdict, which was denied. Plaintiff appeals from the judgment and from the order denying plaintiff’s motion for a new trial.

The collision occurred at the intersection of two township highways in Lind Township, Grand Forks County, about five miles west of Northwood. Henry Ulvick, the proprietor of an automobile and implement business at Aneta, North Dakota, had borrowed the car of Gordon Lusty, his employee, for a trip to Grand Forks, leaving Aneta at about 1:15 p. m. on December 22, 1951. He had proceeded north on state highway 32 and east on state highway 15 at a speed of about 60 miles an hour until he turned north on- the township highway, at a speed variously estimated by 'him at from 45 to 50/ or 50 to 55 miles an hour. He traveled one mile on that highway to the intersection in question. He had traveled that highway many times before. ' The defendant, Arthur Ostlie, was a farmer living about a quarter of a mile west -of the intersection. He, with his daughter, had left his home after the noon meal that day taking the township road east to'the intersection in question. He was well acquainted with both highways. He estimated his speed at from 15 to 20 miles per hour. The •collision happened about 1:30 o’clock p. m.

. The surface of both roads and the intersection was graveled. The roads were about 22 feet wide. A layer of packed snow covered the roads but they were in good condition. The weather was frosty but clear. The road leading south from the intersection rose gradually over a knoll and then slanted downward across a considerable depression so that a car in that depression could not be seen from the intersection or from the highway immediately west thereof until it reached the knoll 300 feet south of the intersection. Neither could a car approaching from the west be seen by the driver of a car coming across the depression from the south until he reached that point. Otherwise there were no obstructions to the view from the roads leading-into the intersection.

The defendant, driving towards the intersection looked to the south, his right, 200 feet before he reached it but could see nothing. Then he looked to his left and proceeded without again looking to his right. He never saw the plaintiff’s car until “it was heading into the intersection and everything went black.” Ulvick, driving plaintiff’s car came over the knoll without looking anywhere and failed to see defendant’s car until it was about ten feet in front of him as he was about to enter the intersection. Both men were rendered unconscious and could not tell any more about the collision. Defendant’s car was’pushed northeast and upset into the ditch. The plaintiff’s car was found in the ditch east of the north and south road. Photographs taken of the cars indicate that the rear, right side of plaintiff’s car had been struck and that the left front of the defendant’s car -was pushed in. The description 'of the marks on the intersection by the patrolman and witnesses arriving on the scene soon after the accident indicate that the collision happened in the intersection on the east side of the center line going north and the south1 side of the center line going east.

In the case at bar plaintiff, as bailor, loaned his car to Henry Ulvick as bailee. Ulvick was using that car for his own purposes and in no way in the interests of plaintiff. Under such circumstances any negligence of Henry Ulvick cannot be imputed to the plaintiff as' contributory negligence. 9 Am.Jur., Automobiles, Sec. 493, p. 781, 6 Am.Jur., Bailments, Sec. 310, p. 407. In the A.L.I. Restatement of the Law on Torts, Sec. 489, p. 1272, it is said: “The contributory negligence of the bailee of a chattel does not bar the bailor from recovery.” The bailee’s negligence can only be considered on the question of whether such negligence was the sole contributing cause of the accident. If it was, then the défendant cannot be held responsible. If, however, the defendant, Ostlie’s negligence contributed to that accident as a proximate cause thereof then he would be liable for resulting damages even if Ülvick’s negligence also contributed to the collision. The district court fairly and fully charged'to that effect and the case was tried on that theory without objection.

The sole issue involved in the appeal, therefore,, is whether or not defendant, Ostlie, was guilty of negligence which proximately caused or contributed to the accident and the plaintiff’s resulting danr-age, irrespective of any negligence on the part of Ulvick. As specifications, plaintiff alleges that the evidence is insufficient to support the verdict; that under the evidence the defendant, Arthur Ostlie, is guilty as a matter of law of negligence which was a proximate cause of the damages resulting to the plaintiff, and that the court, therefore, erred in ordering judgment of dismissal of plaintiff’s case and in denying plaintiff’s motion for a new trial.

The plaintiff argues two grounds in support of his objections. One is to the effect that the defendant violated the right-of-way rule provided by Sec. 39-1017, NRDC 1943, in entering the intersection and was, therefore, guilty of negligence. The other is that he failed to keep the proper lookout in not looking to his right during the last 200 feet of travel before entering the intersection, and was, therefore, guilty of negligence as a matter of law. On these grounds the plaintiff contends the judgment should be set aside and he given a new trial.

Questions of negligence and of proximate cause are ordinarily questions 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; Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Leonard v. North Dakota Co-op. Wool Marketing Ass’n, 72 N.D. 310, 6 N.W.2d 576; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816.

We must, therefore, review the evidence bearing on the two points raised -by plaintiff.

Sec. 39-1017, subds. 1, 3, NDRC 1943 provides: “When two vehicles approach or enter an intersection at approximately the 'same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * * *. The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which he otherwise might have under the provisions of this subsection; 3. The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection.” ' These sections have been construed by this court in Knudsen v. Arendt, N.D., 56 N.W.2d 340, 341, 343, as follows:

“It is clear that subsection 1 of Section 39-1017, NDRC 1943, applies to all cases in which vehicles approach the intersection at approximately the same time. Vehicles approach an.intersection at approximately the same time when there is imminent danger of collision at some point within the intersection if each maintains its established course and speed. Blashfield 'Cyc. of Automobile Law, § 993; n. 28 (Perm. ed. 1951) ; Fester v. George, 71 S.D. 424, 25 N.W.2d 455; Gendron v. Glidden, 84 N.H. 162, 148 A. 461; Prato v. Coffey, 135 Conn. 445, 66 A.2d 113; Mattfeld v. Nester, 226 Minn. 106, 32 N.W.2d 291, 3 A.L.R.2d 909. The words, ‘at approximately the same time’ do not mean ‘at precisely -the same instant’ and in ordér for' a vehicle entering an intersection from the left to secure a right of way by possession under subsection 3 of Section 39-1017, NDRC 1943, it must enter the intersection a sufficient interval of time ahead of a vehicle approaching from the right, so that it may be said the vehicles did not enter at approximately the same time. Such an interval must be of appreciable duration.”

In the case of Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007, the Minnesota court came to the same conclusion but added that all the surrounding circumstances must be considered in determining which car had the right of way.

In the instant case' the evidence clearly indicates that defendant’s car coming from the left entered the intersection first, but that of itself did not give him the right of w.ay, if another car was approaching from the right at approximately the same time. If the plaintiff’s 'car, coming from the right, traveling at legal speed entered the intersection before defendant got through it plaintiff’s car would have the right'of way. Then defendant’s entry into the intersection would be a violation of the law and an act of negligence. Defendant, however, had the right to assume that the driver of any other car coming from the right would exercise due caution and would obey the rules and regulations applying in such cases. Both the defendant and Ulvick knew of the knoll 300 feet south of the intersection and' of the depression on the south side of the knoll. Defendant was entitled to assume that a driver coming over - that hill, which would obstruct his view until he was within 300 feet' of the intersection, would,drive at the legal speed, 'have his car under control and keep the proper lookout on approaching the intersection. ■ ' -

In Pederson v. O’Rourke, 54 N.D. 428, 209 N.W. 798, this court held: “The driver of a vehicle approaching a street intersection has the right to assume that .others likewise approaching the intersection will observe the rules of the road and to act upon that assumption in proceeding across the intersection.” See also 2 . Blashfield’s Cyc. of Automobile Law and Practice. Sec. 1026, p. 290.

The evidence shows that Ulvick came over that knoll without looking either to the right or left. He says he did not see the defendant’s car until it was in front of him only ten feet away.

There were no signs of limitations in regard to speed placed upon the township highway Ulvick was traveling. The general speed limit of 50'miles an hour, therefore, applied. Section 39-0902, subd. 8,11949 ;Suppl. NDRC 1943. Ulvick had been traveling 60 miles an hour until he turned over on that highway. He testified he thought that was the speed limit but said he lowered his speed upon taking the township highway. His first statement to the patrolman, and which was included in the statement he signed shortly after the accident, was that he was then traveling 50 to 55 miles per hour. If the jury found, as they could,, that Ulvick was exceeding the speed limit he' lost his right of way. Section 39-1017, supra. Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463, and defendant’s entry into the intersection could not be con-' sidered as evidence of negligence just because of such entry. See Pederson v. O’Rourke, supra.

In considering a ,specification that a verdict is contrary to the‘evidence the court will assume the truth of the version of the evidence, which tends to- support the verdict. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11; Jacobs v. Nelson, 67 N.D. 27, 263 N.W. 873; Moore v; Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007.

Plaintiff cites the case of Knudsen v. Arendt, supra, Zettle v. Lutovsky, 72 N.D. 331, 7 N.W.2d 180, and Braaten v. Grabinzki, 77 N.D. 422, 43 N.W.2d 38, in support of his contention that defendant’s entry into the intersection at approximately the same time as a car from the right, constitutes negligence as a matter of law. While in each of these cases the defendant was found negligent as a matter of law because he did not look to his right, the facts differ from the case at bar. In the Knudsen case each driver had an unobstructed view of the other for at least one-fourth of a mile before entering the intersection. If the defendant did not look and see the plaintiff’s visible car he was negligent and if he looked and saw it and still continued into the intersection he was negligent. Similarly in the Zettle case each driver had a clear and unlimited view of the highway over which the other was traveling for a considerable distance before entering the intersection. In the Braaten case both drivers had a clear view and saw each other before, entering the intersection. In none of these cases was there any evidence of either party exceeding the speed limit. Plaintiff also cites several Minnesota cases but it appears that the holding in those cases that the mere failure on the part of one who looks and does not see that which is in plain sight and which he might have seen does not in itself make him guilty of contributory negligence as a matter of law •without regard to surrounding circumstances. Moore v. Kujath, supra. In the Moore case each party had a view of the other without obstruction and under the circumstances defendant was held guilty o.f negligence as a matter of law.

On the matter of defendant’s failure to look to his right during the last 200 feet before the intersection the evidence shows that he had looked when' 200 feet from the intersection but Ulvick’s car was then in the'hollow of the depression and he could not see it. Assuming that defendant was traveling at the rate of 20 miles an hour, the highest speed he claimed, he would be traveling 29 feet per second. It would, therefore, fake him approximately 7 seconds to travel those 200 feet. Assuming again that Ulvick was traveling 55 miles an hour he would be traveling slightly over 80 feet per second he would not become visible to the defendant until he got to the fop of thé knoll 300 feet south of the intersection. To travel that distance would take Ulvick 3.73 seconds. That would mean that in order to see Ulvick’s car coming defendant would have had to again look to his right during the last four seconds prior to entering the intersection. Had he looked the second time any time prior to that he still would see no car as Ulvick until then was behind the knoll. Considering that he had looked 7 seconds before and found everything clear and considering that he could expect any car coming-over the hill to observe due caution, maintaining legal speed and control of his car, could it be said as a matter of law that defendant was negligent? On that reasonable men might differ.

“If the undisputed facts are of such a nature that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury.” Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873, 876, and cases cited.

In Lundgren v. Converse, 34 Cal.App.2d 445, 93 P.2d 819, 820, the Court says:

“It appears from his testimony that respondent did in fact look to the right before entering the intersection and observed no approaching car within the range of his vision, a distance of 80 feet. Whether it was reasonably prudent for him to proceed at a slow rate of speed across the intersection was a question of fa'ct for the determination of the jury.”
“A motorist who fails to look on ■ entering an intersection is generally negligent as a' matter of law, but if his view in a particular direction is ob- ■ struct ed, his failure to look in. that direction presents a question for the. jury, as does his failure to look more than once.” 10 Blashfield’s Cyc. of Automobile Law and Practice, 6619, p. . 24. (Emphasis supplied.)

From the evidence in this case, reasonable men may draw different conclusions as to whether or not defendant was entitled to the right of way and whether or not he was negligent in entering the intersection without looking the second time to his right under all the circumstances of the case. Therefore the question of defendant’s negligence or contributory negligence were questions for the jury.

The judgment and order of the district court denying a new trial are affirmed.

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


source: Caselaw Access Project

author: BURKE, Chief Justice.

license: Public Domain

text:
    Viola RETTLER, Plaintiff and Respondent, v. John EBRECK, Defendant and Appellant. Irene BIGLEY, Plaintiff and Respondent, v. John EBRECK, Defendant and Appellant.
    Nos. 7401, 7402.
    Supreme Court of North Dakota.
    June 30, 1955.
    Rehearing Denied Aug. 26, 1955.

      Quentin N. Burdick, Fargo, for defendant- and appellant. •
    E. A. Tannas, Crosby, Duffy & Haug-land, Devils Lake, for plaintiffs and respondents.
   BURKE, Chief Justice.

These .actions were instituted for the purpose of recovering, for damages suffered by the plaintiffs in a .collision between an automobile, owned and operated by the defendant, and a caterpillar tractor. At the time of the collision plaintiffs were passengers in defendant’s car and their complaints alleged that their injuries were proximately caused by the gross negligence of the defendant. In his. answers the defendant denied -any négligeiicíe'■ on .'his part and'alleged contributory-negligence on the part of the plaintiffs. The -actions were consolidated for purposes of trial and the trial resulted in verdicts ini favor of the plaintiffs. From the judgments entered upon the verdicts and from orders denying motions for judgment notwithstanding the verdict or in the alternative for a new trial in each case, the defendant .has .appealed.

' ' The 'first - specification- of error to be considered is the assignment that the evidence is insufficient to- sustain the verdict of the jury. This assignment is twofold; first that there is no evidence of gross •negligence on the part-of the defendant and, second; that the evidence shows contributory-. negligence on the part of the plaintiffs as a matter of law.

On the night they were injured the plaintiffs, in company with the defendant and a Howard Crocker left Crosby to drive by automobile to Fortuna, a-distance Of about 23 miles.. The time of departure- was between .1:15 and 1:30 A.M. Defendant had provided á pint of whiskey and some coca-cola to take along on the trip. On the way to Fortuna, each of the men had one drink of whiskey mixed with coca-cola. On the way to' Fortuna, defendant drove at a speed of ,45 to 50 miles an hour. On the way they passed a caterpillar tractor moving towards Crosby' at a slow rate of speed. Upon arrival at Fortuna Crocker and the plaintiff Viola Rettler, left the car and entered á trailer'house to'visit a "friend of Crocker’s. They took the whiskey with them and remáined in the trailer house for about 45 'minutes'. In the meantime, the defendant and -Irene Bigley remained in the car. While’there the defendant made erotic proposals to Irene which were rejected. According to Irene, defendant became angry arid sullen and when Crocker and Viola came back to the car, started back towards Crosby at a high rate of speed. Irene stated that the speed on the return trip was .much, faster than on the trip to Fortuna. This statement is denied by the defendant. The road from Fortuna to ■Crosby- has a graveled--surface about 30 feet wide. For the first 3 Or 4 miles east of Fortuna, the road is quite rough and while traversing this part of .the road Crocker .asked the defendant to “Take it easy, we have lots of time.” According to Irene, the defendant paid no attention to this request but “kept right on going”. In this testimony she is corroborated by Viola ¡Rettler.

At a place, about two miles west of Crosby, defendant saw a single white light on the road at a distance of about a quarter of a mile ahead of him. Upon seeing it he remarked, “Here comes a one-eyed driver”, indicating that he judged the light to be a single headlight on an approaching car. The light was a single rear light upon the caterpillar tractor that defendant had passed on his way to Fortuna: The light was over the right hand track pf the tractor and it was tipped so that its beam slanted downward toward the road. This tractor was proceeding in the same direction as the defendant and it was traveling, as was defendant, in the right or south lane of the highway. Neither of the plaintiffs remembered anything about the accident or anything else, that occurred after defendant said “Here comes a one-eyed guy.” Defendant said that upon seeing the light ahead of him, he immediately started to ■slow down and when he saw the tractor in the lane ahead of him “slammed on his brakes” but he was unable to stop in time to avoid a collision. Defendant’s own statement is that the tractor was but fifty feet ahead of him when he first applied the brakes. There was no traffic at the time in the north lane of the highway and defendant offered no explanation as to why he did not attempt to pass the tractor in that lane. As a result of the collision defendant’s c.ar suffered major damage and its occupants were severely injured.

Since this is‘a guest case the first question is whether the evidence in the case permits a reasonable inference of gross negligence or willful misconduct. Section 39-1503 NDRC 1943.

Questions of negligence are questions of fact for the jury unless the evidence is such that only one conclusion can be deduced therefrom. McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771; Olson v. Kem Temple, 78 N.D. 263, 49 N.W.2d 99. “ ‘ “Gross negligence” is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless tempérament. It is a lack of care which is practically willful in its nature.’ ” Rubbelke v. Jacobsen, 66 N.D. 720, 722, 268 N.W. 675, 676; Erickson v. Foley, 65 N.D. 737, 262 N.W. 177.

Here the testimony is in dispute. The plaintiffs say that defendant left Fortuna in a pique and drove at a high rate of speed, going much faster than he had driven on the way to Fortuna. They say that he was asked to “take it easy” but that he paid no attention to the request. This testimony if believed, and its credibility was for the jury, would permit an inference that the acts of the defendant were willful in character. 'Defendant first saw the white light on the tractor when it was a quarter of a mile away. There seems to be no question but ‘ that at first he was confused. His remark, “Here comes a one-eyed guy” indicated that his first impression was that a car with a single headlight was approaching. He said that upon seeing this light he started to slow down. By his own admission, however, he did not apply his brakes until he was within fifty feet of the tractor, when he said he realized for the first time that the vehicle ahead was in his lane of traffic. Defendant’s car struck the tractor with sufficient force to telescope its front end to the extent that the front seat had to be moved backwards in order to extricate the plaintiff, Irene Bigley, from the wreck. There are some things in connection with this accident that remain unexplained.

Why did defendant not realize the vehicle ahead was in his lane until he.was within fifty feet of it? The white light on the tractor was covered with frosted or ••corrugated glass. It was five feet above the ground and was set so that the beam from the light focused on the ground at a point'twenty feet behind the tractor. It appears therefore that the only characteristic that this light had in common with an automobile headlight was its color. The light was over the right track of the tractor, or toward the right hand side of the lane in which both vehicles were traveling. The highway was straight. Defendant did not complain about his own headlights. Presumably they conformed to statutory requirements and would render clearly dis-cernable an object two hundred feet ahead. Section 39-1103 NDRC 1943. Why did not defendant make an attempt to avoid the collision by turning into the left lane of the highway which was clear of traffic, instead - of merely “slamming on his brakes?” When the defendant first concluded that a car with a single headlight was approaching, he should have realized that a hazard lay ahead of him and we are satisfied that reasonable men could have drawn the inference from all the evidence that defendant by the exercise of slight care, after he first saw the light on the tractor, could have avoided the accident, either by stopping or by passing, or in other words that the collision and resulting damage were proximately caused by the failure to use slight care or by gross negligence.

Defendant’s contention that the evidence shows contributory negligence on the part of the plaintiffs, as a matter of law, is based upon the fact that they made no protest against defendant’s conduct and made no request to leave the -car. In support of this contention defendant cites the case of Eddy v. Wells, 59 N.D. 663, 231 N.W. 785. In that case this court héld that a guest passenger in an automobile must exercise reasonable care to avoid injury to himself and that he has a duty to protest if he knows the car in which he is riding is being driven at an unreasonable speed. This rule is not a strict rule which in every case makes failure to protest against excessive speed contributory negligence as a matter of law. It is common knowledge that, where a driver is “skylarking” or angry or merely resentful of what is commonly called “backseat driving”, a protest may aggravate the danger rather than remove it. Here there is testimony that the defendant was angry and we are satisfied that it was for the jury to determine whether in the circumstances it was negligence for the plaintiffs to fail to add their protests to the one that had been made by Howard Crocker.

Since the evidence in the case would permit a reasonable inference of gross negligence upon the part of the defendant and the absence of contributory negligence on the part of the plaintiffs, the decision of the trial court denying the motion for judgment notwithstanding the verdict was correct.

Defendant has specified as error certain rulings of the court made during the trial of the case. The first of these relates to the admission of certain testimony of the witness Duffy. This witness, a highway patrolman wUs permitted to testify, over objection, that speed was a factor in the accident. The admission of this testimony was error. In Dolan v. O’Rourke, 56 N.D, 416, 421, 217 N.W. 666, 667, we quoted with approval from 3 Jones, Evidence, p. 1243, sec. 1243 as follows:

‘No better or more constant application of the general rule excluding opinions can be found than in negligence cases. It has been repeatedly held that, where the ultimate fact for the jury is whether the conduct of a certain person was careless, reckless, or negligent, it is riot competent for a witness to express an opinion, conclusions, or judgment thereon. It is the province of the jury to determine the ultimate fact whether conduct was careless, reckless, or negligent, and this right may not be encroached upon by witnesses. It is the function of the witness to state evidentiary facts and the function of the jury to draw such conclusions as the facts warrant.’ ” See also Kist v. Kist, 62 N.D. 408, 243 N.W. 820.

It-is also specified that certain testimony received and testimony read into -the record in an attempt to impeach the defendant was erroneously admitted.. With respect to this incident the record shows the following:

“Q. You were a witness at this trial that occurred here about July 24, 1951, weren’t you? A. Yes.
“Q. And at that time, these two plaintiffs were witnesses in that case? A. Yes.
“Q. And you sat here in court and heard them testify? A.- .Yes'; ■
“Q. And then you took the stand and testified? A. Yes.
.* * * - * * * •
“Q. And at that time, * * * were you asked the following question and ■ make the following answer: ■ ‘Question: Now, you heard the testimony of Viola Rettler and Irene Bigley - yesterday. Was their testimony substantially correct? Answer: Yes sir. Did you .give that answer to that ques- . tion at that time?’ A. Yes.
“Quentin Burdick: Just a minute. I am going to object to that as improper impeachment. I object to that as' an improper impeaching question.
“The Court: Overruled.
“Q. You say you gave the answer to that question?"* * * A. Yes sir. * * * ”'
“Q. Now, did it (the statement that the testimony was substantially .true) also cover this testimony given, by Irene at that time?
“Q. Do you remember anything unusual about John’s .driving on the way home? A. Well, he was going fast, I know that.
“Q. Well, what do you mean by that? A. .Well—
“Q. Was he going any faster coming home than he was going over? A. , Yes, I think so.
“Q. Well, how much faster do you think he was going? A. Oh, I’d say-20 miles faster, anyway. It seems that much.
“Quentin Burdick: If your Honor please, I am'going to object to this improper impeaching matter, and the ‘ basic question was a general question and not specific. * * *
“The Court: Objection overruled. •
“Q. Was that part of the testimony you heard here in court and later said was substantially true? A. Part of the testimony, yes.”

As we view it this testimony was subject to two legal infirmities. In the •first place a statement that the whole testimony of a witness was substantially correct does not vouch for all of the testimony of the witness. It merely means that “in the main” the testimony was true, not that it Was wholly or completely so. South Penn. Oil Co. v. Knox, 68 W.Va. 362, 69 S.E. 1020; Gibson v. Glos, 271 Ill. 368, 111 N.E. 123. This being so, any ■ single statement made by the defendant as a witness in the instant case which conflicts with statements made by the plaintiffs at a previous trial cannot be said to contradict directly his prior testimony that the statements made by plaintiffs at the previous trial ■ were substantially correct. A prior statement of a witness in order, to be provable .for the purpose of impeachment, must be, in some degree, contradictory or inconsistent with his testimony on direct examination. State v. Schonberg, 24 N.D. 532, 140 N.W. 105. In the second place the procedure followed brought before the jury, plaintiff, Irene Bigley’s testimony given on a previous trial that defendant drove 20 miles an hour faster on the way back from Fortuna than he had on the way over. In the¡ instant case plaintiffs’ attorney had sought to-elicit the same testimony from Irene Big-ley. The trial court, however, sustained an objection to the foundation for this testimony holding, and we think properly so, that Irene .Bigley was not qualified to make an estimate of speed in miles per hour. The procedure followed thus placed incompetent testimony before the jury. Wé'are agreed therefore that defendant’s specification of error in this regard is sustained by the record.'

Defendant 'has also- specified as error one of the instructions given by the trial court. The instruction is as follows:

“Members of the jury, you are hereby instructed that there is no evidence of intoxication in this case, and you are to consider only whether at the time and place alleged in the Complaint, the defendant was guilty of gross .negligence, as defined in these instructions. However the jury have a right to take into consideration any evidence of the drinking of intoxicating liquor by the defendant before the collision in determining his state of mind and whether or not he was guilty of gross negligence.”

We agree with the trial, judge in his statement that there was no evMence of intoxication in this case. There was some testimony .that defendant was “feeling good” about four .o’clock in the afternoon of the day preceding the accident. The defendant stated that he had had two drinks of whiskey at a bar in Crosby that afternoon. Defendant worked as a bartender at the Legion Club in Crosby from 7:00 P.M. until-⅛ little after 1:00 A.M. He stated that during that time he had nothing to drink. No1 one testified that he did have anything to drink during that time nor did anyone testify as to any behavior on his part from which drinking or intoxication could be reasonably, inferred. The plaintiffs who had the best- opportunity of observing the defendant before they started on the trip to Fortuna did not so testify. On the way to Fortuna defendant shared one drink of whiskey with Crocker. This was as least an hour and probably an hour and a half before the accident. The testimony that defendant had but a part of one drink on the trip to Fortuna is not contradicted by either of the plaintiffs. Viola Rettler who was with the defendant at all times testified that he was otherwise engaged. 'No one testified that the defendant showed any signs of being1 under the influence of intoxicating liquor when he was taken to the hospital immediately after the accident. The only evidence in the case therefore with respect to the drinking of intoxicating liquor by-the defendant is that he had two drinks or enough so that he “was feeling good” at about four o’clock in the 'afternoon or about twelve hours before the accident and that he shared a single drink with Crocker about an hour and a half before the accident. - We are satisfied that this evidence was not sufficient to raise an issue of intoxication nor to submit to the jury that they could ■ consider this evidence of drinking upon the issue of negligence.

Since we cannot say that the evidence in this case demonstrates that defendant was guilty of gross negligence as a matter of law, we must hold that the combined effect of the errors committed upon the trial of the cases was prejudicial to the defendant. .New trials must therefore be granted. Certain other errors were specified upon these' appeals but since the questions they present are not likely to arise upon a retrial, we have not considered them in this opinion. ' "

The judgments in these cases are therefore reversed and new trials granted.

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

. JOPINSON, J., did not participate.


author: GRIMSON, Judge.

text:
    CITY OF MINOT, Plaintiff and Appellant, v. Hope WHITFIELD, Respondent.
    No. 7488.
    Supreme Court of North Dakota.
    Aug. 29, 1955.
    Paul Campbell, Minot, for áppelíant.
    Ella Van Berkom, Minot, for respondent.
   GRIMSON, Judge.

On August 29, 1953, one Leonard Dahl, a policeman in the City of Minot, signed a complaint before the Police Magistrate, charging Hope Whitfield with driving a motor vehicle while under the influence of intoxicating liquor in violation of the Minot City ordinances. A warrant was issued and the defendant taken into custody. A hearing on the complaint was had. Mrs. Whitfield was represented by her attorney. The defendant was found guilty and sentenced to serve 50 days in jail and to pay a fine of $95 and costs taxed at $5. In default of the payment of the fine and' costs defendant was ordered to be imprisoned in the county jail for a term of forty days at hard labor. Defendant promptly appealed to the district court of Ward County and put up an undertaking on appeal. In due time the case was tried in' district court before a jury. The defendant was found not guilty. Thereupon the City-of Minot made a motion in district court for a new trial. The motion was denied; The City of Minot takes this appeal from the order of the district court denying the plaintiff’s motion for a new trial. The error assigned by the plaintiff, City of Minot, is tire refusal of the court to admit in evidence the results of the use of the Hargar “Drunk-o-Meter” test on the defendant for the púrpose of- establishing percentage of alcohol in her breath.

The defendant contends that the City of Minot has no right to a new trial after the acquittal of the defendant.

That raises the question whether an action under the; city ordinances under which defendant was prosecuted was a civil or criminal proceeding. An examination of the cases discloses that the decisions in each case are largely based on the nature of the ordinance and whether the object is the collection of a penalty or the punishment of a crime. , .

This court discussed the matter somewhat in the case of the Village of Litchville v. Hanson, 19 N.D. 672, 124 N.W. 1119, 1120. A Litchville ordinance provided for the licensing of dogs and a penalty by way of a fine, for violation thereof. The court said:

“At common law punishment for the violations of municipal ordinances were treated in the light of civil actions'; the imprisonment after the non-compliance with the order of the court imposing the payment of a fine being looked iipon, not in the light of punishment, but as a means of, compelling a compliance with the order of the court and of enforcing payment.”

The court quotes In Ex parte Hollwedell, 74 Mo. 395 as follows:

“Nor do we regard the violation of the ordinance under consideration as a crime since ‘a crime is an act committed in violation of .public law,’, a law co-extensive with the boundaries of thé state which enacts it. Such a definition is obviously inapplicable to a mere local law or ordinance passed in pursuance of and in subordination of the preservation of peace and good order in a particular locality.”

It is clear that this court did not go any further than to hold that an action under local ordinance, such as the one .involved in that case, was not strictly a- criminal proceeding.

This question whether actions for violation, of- municipal ordinances are of civil or criminal nature’ has been before the courts of many of the státes. The conclusions of the courts show a great divergence of opinion. It seems that the nature of the ordinance and the seriousness of the penalty prescribed have largely controlled the conclusions -of the courts. It is generally held that at common law a violation of an ordinance was treated as a civil action. 14 Am. Jur. Criminal Law, Sec. 9, p. 759. It is also held that when an ordinance provides simply for a fine and provides a penalty to aid in the collection thereof- civil procedure must be followed. People ex rel. Kane v. Sloane, 98 App.Div. 450, 90 N.Y.S. 762. In re Cox, 129 Mich. 635, 638, 89 N.W. 440. The'conviction for-violation of an ordinance .of the City of Detroit, which restricts the use of public -places, was held not to “rise to the dignity of criminal proceedings.” The cases disclose, however, that as the seriousness of the matter involved in the ordinance and the penalty for violation increased, the courts have been more inclined to consider a violation of- an ordinance as quasi criminal. In Stevens v. City of Kansas City, 146 Mo. 460, 48 S.W. 658, 659, the court said:

“A proceeding in a police court to punish a violation of a municipal ordinance by a fine or imprisonment is civil in form, and qüasi criminal in character. * * * It is governed by the rules of pleading applicable to civil cases, but, if it was solely'civil, no fine or imprisonment could be inflicted. It is, therefore, a quasi civil and criminal action. Partaking of features of each, its similitude to either is not complete.”

In the case of O’Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449, 451, 127 Am.St. Rep. 1014, the court in discussing the procedure for violation of ordinances said:' ’

“So it is perceived the action is partly criminal and partly civil;- a criminal action, in substance and purpose, and partly civil and partly criminal in .the practice governing it.”

In cases -where the violation of an ordinance- is also a violation of a state-wide Statute, it is generally held that a prosecution- for a violation of such ordinance is governed by the rules of criminal procedure.

In Ex parte Clark, 24 Cal.App. 389, 141 P. 831, 833, the trial was under an ordinance declaring the sale of .intoxicating liquor to be unlawful arid providing a specific penalty of $40 for the breach thereof and imprisonment if not paid. The court sáid:

“The defendant is being proceeded against for an infraction of an ordi-. nance of the city of Sanger, adopted as a police-regulation, and making unlaw-■ful the sale of intoxicating liquors in that city. .The inhibited act is in-its very nature ah offerise against the public welfare, and has always been so regarded-when ordinances forbidding its com'mission have come under review; besides, it is expressly made a misdemeanor by the terms of the Municipal Incorporations Act; and in addition to this the defendant is actually being de-' prived of her liberty by being incarcerated in the county jail at public expense, in which fact or condition the general public is interested in a twofold sense. We think the offense to be clearly public in its nature, and the proceedings as clearly criminal in its character.”

In Spokane v. Smith, 37 Wash. 583, 79 P. 1125, 1126, the court said :

“Appellants argue that charges for the violation of municipal ordinances are quasi criminal and not criminal causes. It is true, they have been often so designated, but, where one is arrested and restrained of his liberty, the proceeding partakes of all the essential features of a criminal cause, and it would seem to be immaterial by what name it is' called.” The court held the case was triable on appeal “in the same manner as an ordinary criminal case.”

In City of St. Louis v. Young, 235 Mo. 44, 138 S.W. 5, 8, the court in discussing proceedings under a city ordinance said:

“Criminal character of such cases lies then in the fact-that their object is to punish, and that the proceeding involves the arrest and physical restraint of the person charged.' His ariest is ' an incident to the criminal phase of the case, so that, when he is in' custody in said proceeding, he is in custody on a criminal charge.” '

The nature of an action or proceeding for violation of a municipal ordinance has been thoroughly annotated in 33 L.R.A.. p. 33, 48 L.R.A..N.S., 156, and Ann.Cas.l?17A, 220. In the first-mentioned annotation it is said:

“The question as to how far and to what extent,'proceedings for violations of the ordinances of municipal corporations are to be regarded as prosecutions for crime, would seem to depend to a great extent upon the question as to whether or not such offenses are made punishable by the common or state law as crimes or misdemeanors.”

In case of State v. Vail, 57 Iowa 103, 10 N.W. 297, the court said regarding the prosecution under ordinance prohibiting the sale of liquors:

“It only remains to be determined whether or not this was a criminal proceeding. It appears to us that where authority is given'to a municipal corporation to pass ordinances, the violation of which is punishable, with fine, or fines and imprisonment, the proceedings thereunder are necessarily' criminal proceedings. See Jaquith v. Royce, 42 Iowa 406. All of the proceedings in the district court, upon appeal, are the same as upon appeals from the judgments of justices of the peace under the criminal laws of the state. Now, when the state has delegated-authority to a municipal corporation to enact ordinances for the punishment of offenses as crimes, the proceedings are criminal, and an acquittal upon appeal to the district court, is an end of the . defendant’s liability.”

The ordinance which the defendánt was charged with violating reads as follows:

“It shall be unlawful and punishable as provided in 8-204 for any person, whether licensed or not, who is an habitual us.er of narcotic drugs or any person ’who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon any highway within this city.”

The punishment provided for in ordinance 8-204 is a fine of not more than $100 or. imprisonment for a period of not exceeding ninety days or by both such fine and imprisonment. It will be noticed that there may be imprisonment without a fine. That shows the ordinance to be clearly of a criminal nature.

The defendant was arrested on a complaint signed by a policeman. She was taken into custody. She was given a hearing .and convicted in police magistrate’s court. She was sentenced to serve SO days in jail. Clearly that indicates that the object sought was punishment. She appealed according to the statutes for appeal by the defendant from a conviction in police magistrate’s court, Sec. 40-1819, NDRC 1943. She was being tried for a violation of an ordinance which prohibited driving while under the influence of intoxicating liquor. That is an offense also prohibited by state law, Section 39-0801, 1949 Supp. NDRC 1943. That is an ordinance not only to prevent local offenses but to protect peace and welfare of the community and the state and to punish a public wrong. It follows that this case is in the nature of a criminal action and subject to trial under the rules of criminal procedure.

The defendant was acquitted by the jury on'the trial-in district court. Plaintiff immediately made a motion for a new trial which was denied. The plaintiff then appeals to this court from order denying the motion for a new trial.

Causes for granting a new trial in a criminal case are prescribed by Section 29-2402, 1953 Suppl. NDRC 1943. According to that section only tlie defendant can apply for a new trial when a verdict has been rendered against him. There is no provision for granting the plaintiff, the City of Minot, the right to move for a new trial after the acquittal of the defendant. Amend 5, U.S. Constitution and Section 13 of the North Dakota Constitution provide that “No person .shall be twice put in jeopardy for the same offense.” In the case of State v. Kelsey, 49 N.D. 148, 190 N.W. 817, this court says:

“When the court 'rendered a judgment of acquittal, exonerating the bondsmen and discharging the defendant, its jurisdiction over the 'defendant ceased. No actual controversy concerning the subject-matter or the defendant remained”, and the court held: “That the questions presented are moot, and the court has no jurisdiction there-over.”

The district court correctly denied the motion for a new trial.

The order of the District Court is affirmed.

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


author: BURKE, Chief Justice,

text:
    Dan GUNSCH and John Gunsch, Plaintiffs and Appellants, v. Leona GUNSCH, Fred Bauer, Art Bieber, Christ Kiessler and Al. Johnson, Defendants and Respondents.
    No. 7441.
    Supreme Court of North Dakota.
    Aug. 25, 1955.
    - See, also, N.D., 69 N.W.2d 739, 71 N.W.2d 623.
    J. K. Murray, Bismarck, for appellants.
    Floyd B. Sperry, Golden Valley, for respondents.
   BURKE, Chief Justice,

In this action plaintiffs sought to recover damages for the alleged conversion of twenty-six head of cattle. Defendants denied that plaintiffs were or ever had been the owners of the cattle in question and alleged that the defendant Leona Gunsch was the owner thereof. Judgment was entered dismissing plaintiffs’ suit and they have appealed from the judgment.

The plaintiffs, Dan and John Gunsch, claim that they derived title to the cattle by purchase from Tony Gunsch. According to plaintiffs Tony sold them certain lands, cattle and machinery for $7,000. The validity of this alleged contract was before this court in the case of Gunsch v. Gunsch, N.D., 67 N.W.2d 311. In that case we held that there was no contract between the parties for the sale of any of the property. This decision is controlling. The plaintiffs never acquired any title to the cattle in question and consequently have no cause of action for their conversion.

The judgment is affirmed.

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


text:
    John SCHERBENSKE, Plaintiff and Respondent, v. R. A. MAIER, Gust Noack, and Minnie Maier, Administratrix of the Estate of Charles Maier, Deceased, substituted for defendant, Charles Maier, doing business as Maier Chemical Spray, Defendants and Appellants.
    No. 7486.
    Supreme Court of North Dakota.

      Aug. 27, 1955.

      Wm. L. Paulson, Valley City, and Philip L. Scherer, Winthrop, Minn., for appellants.
    Roy A. Ployhar, Valley City, for respondent.
   GRIMSON, Judge.

The plaintiff in his complaint alleges that he is a sole trader doing business as “Scher-benske’s Store” at Tuttle, North Dakota, and that the defendants were “associated together” and doing business under the firm name and style of “Maier Chemical Spray” of Valley City, North Dakota; that on the 8th day of November 1946, plaintiff and defendants entered into an agreement by the terms of which defendants sold and delivered to plaintiff 1,250 gallons of Maier Chemical Spray at $2 per gallon, total cost, $2,500, on which plaintiff was allowed a credit of $125 leaving a balance due of $2,375 for which plaintiff paid the defendants in cash. Plaintiff further alleges that as a part of that agreement the defendants, and each of them, agreed to and with the plaintiff that they would help sell such spray before July 1, 1947, and that in the event that any spray remained unsold at that date they would take that amount back and refund the purchase price at $2 per gallon; that the defendants have failed and refused to comply with their agreement, failed to sell or take back any of such spray, all of which plaintiff still has in his possession. Wherefore, plaintiff demands judgment against the defendants and each of them for $2,375, together with costs.

The defendants specifically deny that they were ever associated together and doing business as "Maier Chemical Spray” and allege that Charles Maier was the sole owner of said business and make a general denial of all other allegations of the complaint. The case was tried to a jury. .

When the plaintiff rested defendants moved for a dismissal of the plaintiff’s claim for the failure of proof of the agency, the authority to make the contract and reliance thereon by plaintiff and no showing of damages, which was denied. Defendants then rested without ■ submitting any proof, after which defendants made a motion for a directed verdict upon the same grounds which was denied. The jury returned a verdict for the plaintiff of $2,375 and interest against the defendants. Defendants duly made a motion for judgment notwithstanding the verdict or for a new trial which motion was denied. Defendant, Minnie Maier, Administratrix, appeals from the order denying that motion. The other defendants do not appeal.

The appellant filed numerous specifications of error. As to the lack of evidence the specifications are mainly that the evidence shows no agency or agreement binding the administratrix, Minnie Maier. There also are assignments of error with regard to the admission of evidence and the charge of the court. In the briefs and on argument these specifications are not particularly argued and appellants state the issues to be:

“1. Were the defendants, Gust No-ack and R. A. Maier, agents,of the defendant, Charles Maier (Minnie Maier, Administratrix of the Estate of Charles Maier, decedent, now substituted in his place and stead as one of the defendants) ?
“2. Did the defendants, Gust Noack and R. A. Maier have express or implied ' authority as agents to make a contract in behalf of the principal to repurchase the goods. sold by them to the plaintiff.”

We have carefully considered the specifications set out and have concluded there is no prejudice shown in the rulings or charge of the court.

The undisputed, admissible testimony of the plaintiff shows that Charles Maier was the sole distributor of the Maier Chemical Spray and that he had associated with him as salesmen his son, R. A. Maier and his son-imlaw, Gust Noack. Charles Maier died after this action was commenced and Minnie Maier, the administratrix of his estate, was substituted in his place.

In November 1944, the defendants, Charles Maier and Gust Noack came to the plaintiff’s place of business, introduced themselves and proceeded to sell some of this spray to the plaintiff. The plaintiff himself was correctly allowed to testify only to the conversation with Noack as to what the agreement was since Maier was dead but those conversations were in Maier’s presence. Furthermore, two other witnesses who were present at the time of the conversation testified to what Charles Maier himself had said. All these witnesses testify that Charles Maier and Gust Noack had said the spray was fully guaranteed and that they would help sell it and if it .didn’t sell they would he glad to take it hack. Plaintiff thereupon wrote out a check to “Maier Chemical Company” for $63 which was endorsed, “Maier Chemical Spray, Charles Maier, Prop.,” and cashed. Some, hut not all, of this spray was sold by the plaintiff. There also seems to have been a $1,400 deal for spray and machinery between them which is not included in this lawsuit.

Then in November 1946, Gust Noack and R. A. Maier, came to plaintiffs place of business and said they were sent out there to see plaintiff about the 1944 purchase of spray and to try to sell him some more. They reported that Charles Maier would like to have come out but couldn’t because of being old and feeble. Plaintiff testified that they said Charles Maier sent his regards and that any deal they made with the plaintiff would be. agreeable with him. According to plaintiff’s testimony Maier and Noack said they would sell the balance of the 1944 batch for him and also what he would now buy; that they were going to make a distributing point out of plaintiff’s place for the surrounding territory. Plaintiff quotes R. A. Maier as saying: “If it don’t sell we will get it back and give you back every cent” and that Noack said, “-It is guaranteed in every way that if it don’t sell, if we don’t move it for you, we will take it back and give you your money back.” The plaintiff thereupon signed an order for the 2,500 gallon's of the spray. He was allowed credit on “the last sale” of $125, leaving a balance of $2,375 for which he gave a check to Maier Chemical Spray for $2,375 which was endorsed by Maier Chemical Spray and cashed. At that time it was also planned that the defendants should conduct experiments in the neighborhood and the plaintiff’s brother was engaged to go on with that work. This conversation was verified by four witnesses who were present and heard the conversation by the parties. Later the plaintiff wrote to Charles Maier but received no answer.

Another, independent witness, Joe Gertz, testified that Charles Maier and Gust No-ack, his son-in-law, sold him some spray in .1938 and that in 1946 or 1947 Charles Maier came to his place and introduced his son, R. A. Maier, and his son-in-law, Gust Noack, and said that .they “were his salesmen out there.” On Nov, 12, 1946 Gertz bought $3,500 worth of spray from R. A. Maier and Gust Noack.

The defendants did not take the witness stand so that all these conversations stand undisputed.

The appellant raises the question of whether Gust Noack and R. A. Maier were agents of the defendant, Charles Maier. Charles Maier participated with Noack in the 1944 deal. Together they made a sale to Joe Gertz in 1938. In 1946 Charles Maier told Joe Gertz that R. A. Maier and Gust Noack were his salesmen, after which they sold more spray to Gertz. Then there are the circumstances of Maier and Noack having the spray for delivery and of receiving 'the checks in payment which were afterwards endorsed and' cashed by the Maier Chemical Spray.

Section 3-0103, NDRC 1943, defines actual and ostensible agency as follows:

“An agency, is either actual or ostensible. It is actual when the agent really is employed by the principal. It is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent, who really is not employed by him.”

Of this section in Bernard v. Madsen, 52 N.D. 822, 204 N.W. 196, 200, this Court says :

“Section 6324, C.L.19Í3 (Now Sec. 3-0103, NDRC 1943), is but a statement of a well established principle of the common law, which, it has been declared, lies at the foundation of the law of agency. Under this statute an ostensible agency exists where the conduct of the'supposed agent is consistent :with the existence of an agency, and where, in the transaction in issue, the party with whom the supposed agent dealt was justified in assuming that the agency existed. It would seem that the essential features of authority, within the purview of this section, are that the third party must have believed in the existence of the authority in the sup- ■ posed agent, and such belief must rest upon some act or statement of the principal sought to be bound by the alleged authority. There must have been some conduct on the part of the principal reasonably resulting in the belief, in the mind of the third party, that an agency existed together with a reliance thereon.”
“Whether an agency has in fact been created is to be determined by the relation of the parties as they exist under their agreement or acts. If relations exist which would constitute an agency it would be an agency whether the.parties understood the exact nature of the relation herein." 2 Am. Jur., Agency, Section 24, p. 26.
As proof of Agency, “circumstances, such as the relation of the parties to each other and the conduct with refer- . ence to the subject matter of the contract may be relied upon. It is also permissible to prove a previous course in dealing.” 2 Am.Jur., Agency, Sec. 443, p. 351.

In the case at bar the conduct of Charles Maier in the 1944'transaction supports the ostensible agency of Noack and Maier in .the 1946 transaction and lends strength to reliance of the plaintiff upon their statements. There is sufficient evidence to warrant the jury in finding that Noack and R. A. Maier were' associated with Charles Maier as his agents in the sale of’ the spray.

The next question raised by appellant is whether the defendants, Gust Noack and R. A. Maier, had express or ostensible authority to make a contract in behalf of Charles Maier to repurchase the goods sold 'by them tó the plaintiff.

Section 3-0202, NDRC 1943, defines actual or ostensible authority of an agent as follows:

“An agent has such authority as the principal actually or ostensibly confers upon him. Actual authority is such as a principal intentionally confers upon the agent or intentionally or by want of ordinary care allows the agent to believe himself to possess. Ostensible authority is such as the principal intentionally or by want of ordinary care causes or allows a third person to believe the agent to possess.”

The evidence shows that Charles Maier himself together with Gust Noack made the agreement with plaintiff in 1944 that if all the spray was not sold “they would be glad to take it back.” Clearly that act of Charles Maier indicated that that was the manner in which they were making sales. When in 1946 Gust Noack and R. A. Maier made a similar agreement with plaintiff, Charles Maier’s action in making the first agreement would naturally lead plaintiff to believe that they had authority to make the same agreement.

“Whenever a principal has placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent is authorized to perform in behalf of his principal the particular act. * * *” 21 R.C.L. 856.
“Although general statements in opinions on the question under annotation must be taken in connection with the particular facts, involved, there is considerable authority to the effect that, in the absence of anything to charge the buyer with notice to the contrary, a salesman has implied or apparent authority ,to bind the principal by an agreement contemporaneous with the sale, that the goods, or part of them, may be returned within a reasonable time if found unsatisfactory, or at least if they are defective or unsuited for the purpose for which they are purchased.” 55 A.L.R. 381. See also 2 Am.Jur., Agency, Sec. 124, p. 101; Wisconsin Lumber Company v. Greene & W. Telephone Co., 127 Iowa 350, 101 N.W. 742, 69 L.R.A. 968, 109 Am.St.Rep. 387; Marion Mfg. Co. v. Harding, 155 Ind. 648, 58 N.E. 194; Dalton Adding Mach. Sales Co. v. Lindquist, 137 Wash. 375, 242 P. 643; George De Witt Shoe Co. v. Adkins, 83 W.Va. 267, 98 S.E. 209; Deering v. Thom, 29 Minn. 120, 12 N.W. 350; Oster v. Mickley, 35 Minn. 245, 28 N. W. 710; Warder, Bushnell & Glessner Co. v. Pischer, 110 Wis. 363, 85 N.W. 968.

There is nothing in the evidence to charge the plaintiff with notice that the defendants did not have authority to make the same kind of an agreement as Charles Maier and Gust Noack made in 1944. Furthermore, there is nothing in the evidence to dispute testimony of the plaintiff regarding the agency and authority of Noack and Maier to make the agreement on which the suit is brought.

The defendants, Gust Noack and R. A. Maier were duly served in this case. The answer is general for all the defendants. The testimony of the plaintiff is largely based on what those two men said concerning the agreement made. They did not testify in contradiction to that testimony or at all. The result is that the testimony of the plaintiff and his witnesses is undisputed and the terms of the agreement plaintiff made with Noack and Maier must be found from that testimony.

In New York Life Ins. Co. v. Hansen, 71 N.D. 383, 400, 2 N.W.2d 163, 171, Judge Christianson, in a special concurring opinion writes:

“Omission to call or interrogate an available witness, especially if the witness possesses peculiar knowledge, and would naturally be friendly to the party’s contention, ‘raises a strong presumption that the testimony, if elicited, would be unfavorable’ to the party who fails to call or interrogate . such ■ witness. 22 C.J. p. 115 et seq.; 1 Jones Commentaries on Evidence, 2nd Ed., p. 156; 9 Ency. of Evidence, p. 965 et seq., 20 Am.Jur. p. 192.
‘The scope of the rule is illustrated by the fact that it applies even to failure to combat adverse inferences. Where evidence has been introduced affording legitimate inferences going to establish the ultimate fact that the evidence is designed to prove, and the party to be affected by the proof, with an opportunity to do so, fails to deny or explain such facts, they may well be taken as admitted with all the effect afforded by the inferences.’ ” 1 Jones, Commentaries on Evidence, 2nd Ed. pp. 156, 157.

In M & M Securities Co. v. Dirnberger, 190 Minn. 57, 250 N.W. 801, the court held:

“When a party fails to produce an available witness who has knowledge of the facts and whose testimony presumably would be favorable to him, and fails to account for his absence, the jury may indulge a presumption or draw an inference unfavorable to such party.”

In the case at bar the defendants, Gust Noack and R. A. Maier were the parties alleged by the plaintiff to have made this special contract for the Maier Chemical Spray. They best knew the terms thereof. The defendants never offered their testimony to dispute the testimony of the plaintiff on that matter. Plaintiff tried to call them for cross examination but they were not in the courtroom. No offer was made to produce them or to explain their absence. The jury had a right to take their failure in that respect into consideration and to conclude that the plaintiff’s testimony thereon was correct.

As Mr. Justice Butler said in Mammoth Oil Co. v. United States, 275 U.S. 13, 51, 48 S.Ct. 1, 9, 72 L.Ed. 137, 151, quoting Lord Mansfield in Blatch v. Archer, cowp. pt. pp. 63, 65, 98 Reprint, 968,-“All evidence is to be weighed according to the proof which it was in the power of one side to, have produced, and in the power of the other to have contradicted.” ■

The trial court in its memorandum decision said:

“The question of agency was raised by the defendants in their brief, and the court "* * * ‘ is of the opinion that ■the question of agency can be proved 'by circumstances ' as well as direct statements. Both of these elements are contained in the evidence, which showed that Charles Maier had, in the pres-.enc'e of other people' not interested in this lawsuit, stated that these men were representing him. And that he had also stated in the presence of others that he would guarantee the product ánd accept back any and all unsold mer.chandise. This was not disputed in any way in this case.” .

We agree with the trial court. The order appealed from is affirmed.

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


author: JOHNSON, Judge.

text:
    Harry POZARNISKY and Anna Pozarnisky, Plaintiffs and Respondents, v. M. B. RUDMAN, Defendant and Appellant.
    No. 7496.
    Supreme Court of North Dakota.
    Aug. 25, 1955.
    Harold A. Pollman, Williston, for defendant and appellant.
    Williams & Buehler,, Garrison, for plaintiffs and respondents.
   JOHNSON, Judge.

On October 30, 1952, the plaintiffs commenced an action against ■ the defendant, praying for reconveyance of Vie of the minerals granted by them-and a son by the name-of Ben Pozarnisky to the defendant by mineral deeds dated July 22, 1949. On said-date the plaintiff, Harry Pozarnisky, was the record title owner of the" following described real property, to wit: •

< The Southwest Quarter of the Northwest Quarter (SWi4NW}4) and Lot 4 of Section 3, and the South Half of the Northeast Quarter (SJ4NE14) of Section 4, the South Half of the Northwest Quarter (Si/^NWi/^.) and the South Half of the Northeast Quarter (Si/£NEi4) of Section 10, and the Southwest Quarter of- the Southeast Quarter - (SW14SE14) and the South Plalf of the Southwest Quarter (Sj/á SW14) of Section 10, and the Northeast Quarter of the Northwest Quarter (NEÍ4NW14) -of Section 14,’ all in ' Township 149 North of'Range 81 West of the 5th P.M., McLean County, North Dakota.

The plaintiff, Anna Pozarnisky, was the record title, owner of the following described real property, to wit:

The Northeast Quarter of the Southwest Quarter (NE14SW14) and the ■ North Half of the Southeast Quarter (N14SE14.) of Section- 10, the East -Half of the Southwest Quarter (E14 SW54) and the East- Half of the Northwest Quarter (E14NW14) of Section 15 in Township 149, Range 81-West of the 5th P.M., McLean County, North Dakota.

.On said date, Ben Pozarnisky, a son of the plaintiffs, was the record title owner of the following described real property, to wit:

The South Half of the Southwest Quarter (Si/£SWi4) of Section 4 and the East Half of the Northwest Quarter (Ei/jNWi4) of Section 9, Township 149, North of Range 81, West of the 5th P.M., McLean County, North Dakota.

The plaintiff, Harry Pozarnisky, acquired this property by purchase from Ben Pozar-, nisky, and by reason thereof acquired the right of action of Ben Pozarnisky against the defendant.

The mineral deeds executed by the plaintiffs and their son, Ben Pozarnisky, purported to convey to the defendant an undivided one-half interest in and to all of the oil, gas, and minerals in and under, and that may be produced from the land above described.

The complaint alleges that the mineral deeds were obtained by one W. L. Braun, an agent of the defendant, by fraud. The plaintiffs, in that connection, allege that they are somewhat unfamiliar with the English language; that it is not their native tongue, and that they relied upon certain false and fraudulent representations made, by the agent as to the purpose and effect of said mineral deeds. They set forth representations that the mineral deeds meant nothing; that they merely went with the oil and gas lease; that the deeds would terminate at the end of the period of not more than ten years; that if the lease was canceled for nonpayment of rentals, the deeds would be canceled also; that additional consideration for the deeds would be paid annually for the period they remained in effect; that the deeds did not affect the plaintiff’s right to the oil in or under the land, it only affecting solid minerals as distinguished from oil and gas; that “the legal effect of the lease and deed would be to give the defendant one-half of all minerals and one-sixteenth of all oil and gas produced, thereby implying ¡hat the ownership of the same remained in the plaintiff.” It is alleged that these representations' were false and fraudulent as the agent of the defendant well' knew and that they were made for the purpose of defrauding the plaintiffs; and that the plaintiffs relied on the representations made and signed the mineral deeds without reading them; that they had only recently discovered that such representations were false and fraudulent.

The complaint sets out also that prior to the commencement of this action, the defendant conveyed to a third party a one-sixteenth interest in the minerals purportedly conveyed by the mineral deeds and that the defendant claims to retain a seven-sixteenths interest. The plaintiffs pray that the defendant be ordered to reconvey a seven-sixteenths interest in the oil and gas and minerals to the plaintiffs and that they have such other relief as may be just and equitable together with costs.

The defendant answers specifically denying that any portion of the transaction set forth in the plaintiffs’ complaint was procured by fraud, and .further specifically denying the specific allegations of false and fraudulent representations made to the plaintiffs and asks for a dismissal of the action. This action was tried to the court without a jury on the 6th day of April 1954. The trial court found for the plaintiffs and the defendant appeals and asks for a trial de novo.

This case and the case of Phillip and Elizabeth Fedorenko against the same defendant were consolidated for the purpose of trial. They, however, were briefed and presented separately in this court.

The facts in this case are substantially the same as in the case of Phillip and Elizabeth Fedorenko versus M. B. Rudman. Insofar as they differ they will be discussed herein. Insofar as they are the same, the facts will not be repeated.

Shortly after the plaintiffs in this action had signed the mineral leases and the mineral deeds, the plaintiff, Harry Pozarnisky, and a daughter staying at home, or both, discovered mistakes in the description of the land in both instruments. Mr. Braun was called concerning the mistakes and they were corrected in the original documents. It is, therefore, apparent that the plaintiff, Harry Pozarnisky, did make an examination of the instruments. He persists in asserting that he merely examined the description and did not examine the instruments otherwise. However, he knew that there was an error in the description in both documents. The testimony shows that thereafter Harry Pozarnisky did not look at the instruments until after the payments under the oil and gas lease came due, July 22, 1950. Then he received a notice from the bank. At that time, if not on the first examination of the documents, he discovered that, not only had he and his wife and Ben Pozarnisky, his son, signed oil and gas leases, but mineral deeds as well. He talked to Phillip Fedorenko about this. Phillip Fedorenko consulted with his banker, Pozarnisky did not do that. Neither did Mr. Pozarnisky attempt to contact Mr. Braun. He merely contacted Fedorenko.

Harry Pozarnisky and Phillip Fedorenko were both working as carpenters on a job in Minot, North Dakota, when contacted by the defendant’s agent, W. L. Braun. They talked over the matter of signing oil and gas leases with Mr. Braun.

The facts insofar as they differ in this case from that of the Fedorenko case, do not change the applicable law. It is apparent that Phillip Fedorenko and Harry Po-zarnisky were in close contact involving their transactions with Mr. Braun. They both engaged Mr. Robert Vogel as their attorney and consulted him at the same time either the latter part of May or the first part of June 1951.

The letter written by Mr. Vogel, dated June 30, 1951, relates that he was consulted by Phillip Fedorenko,- Harry Pozarnisky and Ben Pozarnisky in regard to certain oil and gas leases and mineral deeds obtained from them by Mr. W. L. Braun on July 22, 1949.

If the plaintiffs did not discover that they had signed mineral .deeds at the time that Harry-Pozarnisky discovered that there was an error in the description in the oil and gas leases and the mineral deeds of the property involved, presumably they discovered the mistake definitely when they examined and looked at the copies of the instruments that had been left with them by the agent of the defendant about a year after they were dated and found that they had signed min* eral deeds. If the plaintiffs did not have complete knowledge of their rights up to the time that they consulted with Mr. Vogel, they did have complete knowledge thereof when they consulted with him in the latter part of May or the early part of June, 1951. They made no attempt, after consulting him, to rescind the contract by any formal action until one year and four months thereafter.

Under the facts and circumstances, we think that the plaintiffs did not act promptly upon discovering the facts which entitled them to rescind and that they waived their right of rescission.

Since the facts of this case are substantially the same as in the Fedorenko case, except as herein noted, it is unnecessary to discuss them further. The legal principles set forth in the case Of Phillip and Elizabeth Fedorenko versus M. B. Rudman are applicable and apply with equal force to the facts of this case. Reference to them is hereby made and the opinion in that case applies here. Fedorenko v. Rudman, N.D., 71 N.W.2d 332, recently decided.

The judgment of the trial court is reversed and the plaintiffs’ action dismissed.

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


text:
    Matter of Isabelle STEINBORN, a Patient at the North Dakota State Tuberculosis Sanatorium at San Haven, North Dakota.
    No. 7436.
    Supreme Court of North Dakota.
    Aug. 25, 1955.
    Rehearing Denied Sept. 24, 1955.
    M. W. Duffy, State’s Atty., Cooperstown, for appellant Griggs County.
    E. T. Christianson, Atty. Gen., for respondent Berta Baker, State Auditor.
    Theodore F. Kessel, State’s Atty., La-Moure, for respondent LaMoure County.
    Bernard C. Lyons, State’s Atty., Valley City, for respondent Barnes County.
   BURKE, Chief Justice.

This appeal arises out of a controversy among Barnes, Griggs and LaMoure Counties with respect to the responsibility for the care of Isabelle Steinborn, an indigent person, at the State Tuberculosis Sanatorium. The controversy was submitted to the state auditor pursuant to the provisions of Sections 25-0804 and 25-0805, NDRC 1943. The auditor determined that Griggs County was responsible. Griggs County thereupon appealed to the District Court of LaMoure County from the decision of the state auditor. Upon the appeal the decision of the auditor was affirmed. Griggs County has now appealed to this court from the judgment of the district court.

The controversy was submitted to the district court upon a stipulation of facts. These facts, in so far as they are pertinent to a decision in this case, are as follows: Isabelle Steinborn is the daughter of Herbert Steinborn who prior to October 1942 had acquired a residence for poor relief purposes in Griggs County. In October 1942, Herbert Steinborn moved with his family to LaMoure County. At the time he moved he and his family were receiving aid from Griggs County and they continued to receive such aid from Griggs County after the removal to LaMoure County. Isabelle Steinborn became 18 years of age on July 23, 1943. Thereafter aid to dependent children payments for Isabelle were discontinued, but were continued for other children in the family. She continued to live at her parents’ home until she graduated from high school in June 1944. Upon graduating she went to California where she remained until December 1944. On December 7, 1944, she returned to the home of her parents where she remained until January 1, 1945. On January 1, 1945, she went to Barnes County where she resided with a sister until May 30, 1945. On that date she returned to the home of her parents where she remained until June 5, 1945. On that date she left to take employment at Aberdeen, S. D. On October 5, 1945, South Dakota authorities ordered her returned to North Dakota, as an indigent person with active tuberculosis. She was returned to the home of her parents in LaMoure County where she remained until December 20, 1945, on which date she was admitted to the sanatorium at San Haven.

From these facts it is apparent that Herbert Steinborn was at all times mentioned a resident of Griggs County for poor relief purposes. He had acquired a residence in that county for such purpose and under the applicable statute, Section 50-0204, NDRC 1943, could not acquire a poor relief residence in any other county as long as he continued to receive aid from Griggs County.

Section 50-0204, NDRC 1943, which was the statute in effect at that time this controversy arose, provided:

“If no type of public assistance or poor relief, whether county, state, or federal, has been received, residence in a county, for poor relief purposes, shall be gained as follows:
“1. Each male person, and each unmarried female, over the age of twenty-one years, who has resided one year continuously in any county in this state, shall be deemed to have residence in such county;
“2. Each person who had resided one year continuously in the state, but not in any one county, shall have a residence in the county in which he or she has longest resided within such year:
“3. Every minor not emancipated and settled in his own right shall have the same residence as the parent with whom he has last resided.”

The main controversy in this case arises over the construction to be given to the word “minor” as used in subsection 3 of Section 50-0204, supra. Griggs County cites Section 14-1001, NDRC 1943, which defines minors generally as:

“1. Males under twenty-one years of age; and
“2. Females under eighteen years of age.”

Griggs County contends that under the general law Isabelle Steinborn ceased to be a minor on her 18th birthday which was July 23, 1943; that on that date she lost her right to a poor relief residence at the home of her parents; that thereafter she was voluntarily absent from Griggs County for more than one year during which she received no aid or relief from any source and that under the provisions of Section 50-0206 NDRC 1943, she thus lost her residence in Griggs County for relief purposes.

In our view the position taken by Griggs County is unsound. Subsections 1 and 3 of Section 50-0204, supra, must be construed together. Under subsection 1, the only persons who may acquire a residence for poor relief purposes are males and unmarried females, over the age of twenty-one. Under subsection 3, minors, not emancipated and settled in their own right, take the residence of the parent with whom they reside. When these two subsections are considered together the only reasonable construction that can be given to the word “minor” as used in subsection 3 is that minors, for poor relief purposes, included all males arid unmarried females under the age of twenty-one. The construction urged by Griggs County would have made it impossible, while this statute was in force, for an unemancipated unmarried female between the ages of 18 and 21 to gain a residence for poor relief purposes anywhere. Clearly such a result was not intended by the legislature.

Since Isabelle Steinborn was a minor, under the poor relief laws in force at the time she was admitted to the sanatorium, it follows that at that time her residence for poor relief purposes was the same as that of her parents, or Griggs County. There is no contention or proof in this case that Isabelle Steinborn was ever emancipated and settled in her own right.

The judgment of the district court is affirmed.

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


author: LARSON, Justice.

text:
    HY-VEE, INC., Appellee, v. EMPLOYMENT APPEAL BOARD and Diyonda L. Avant, Appellants.
    No. 04-0762.
    Supreme Court of Iowa.
    Nov. 18, 2005.
    Rehearing Denied March 1, 2006.

      Robert C. Oberbillig, Des Moines, for appellant Diyonda L. Avant.
    Thomas J. Miller, Attorney General, and Richard R. Ramsey and Anita M. Garrison, Assistant Attorneys General, for appellant Employment Appeal Board.
    Brian L. Stowe of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.
   LARSON, Justice.

The primary issue presented in this unemployment-compensation appeal is whether an employee who quits, citing health problems attributed to an “intolerable working environment” or “detrimental working conditions” must, as a condition to receiving benefits, inform her employer of her intent to quit if the conditions are not improved. The district court and the court of appeals answered in the affirmative, but we disagree.

I. Facts and Prior Proceedings.

Diyonda L. Avant was employed at Hy-Vee, Inc. from October 1998 to January 2003, when she resigned. Avant’s employment with Hy-Vee was marked by frequent stress, based in part on the employer’s failure to give her pay raises (which the employer claims was based on her poor evaluations). She also complains of hostile working conditions, based largely on her race (she is African-American). Avant filed a complaint with the Iowa Civil Rights Commission, but the complaint was “administratively closed,” then reopened in 2002. The civil rights proceedings are not involved in this appeal, although some of the race-related stress claimed by her in her civil rights complaint was also claimed by her to be part of the detrimental or hostile work environment.

On January 10, 2003, Avant resigned, stating in a letter to Hy-Vee that she resigned because of “deteriorating mental health, which directly stems from the hostile work environment [she] was exposed to at the Hy-Vee, Inc. corporate office.” Following her resignation, Avant applied for unemployment benefits. Iowa Workforce Development determined that Avant was entitled to benefits, despite her voluntary quit, because she had justifiable cause attributed to the employer. Hy-Vee appealed this decision, and an administrative law judge (ALJ) ruled that Avant was not entitled to benefits because she resigned voluntarily without good cause attributable to the employer. Specifically, the ALJ noted that Avant had failed to give notice of her intent to quit if working conditions were not corrected. Avant did not participate in the hearing before the ALJ. However, Hy-Vee introduced evidence, including Avant’s resignation letter, quoted above, that complained about detrimental working conditions. This evidence also included a report by Behavioral Health Resources, an agency designated by Hy-Vee to assess time-off requests. That report stated that “due to emotional stress in her ... she needs an extension in her leave.”

Avant appealed to the Employment Appeal Board (board), which reversed the decision of the ALJ and held that Avant was entitled to benefits. The board found that Avant had given sufficient notice to her employer of the hostile environment and that her decline in health was a result of that environment. The board concluded that Avant resigned with good cause atr tributable to her employer due to “intolerable or detrimental working conditions.” See Iowa Admin. Code r. 871-24.26(4). The board did not address the issue of whether a notice of intent to quit was required.

On Hy-Vee’s petition for judicial review, the district court reversed the board’s holding, concluding that the board’s decision was not supported by substantial evidence because Avant failed to inform Hy-Vee of her intent to quit if the working conditions were not improved. On Avant’s appeal, the court of appeals affirmed the district court, holding that the board’s decision was not based on substantial evidence because it had relied on the bare allegations of Avant’s letter, rather than sworn testimony.

II. Issues.

Two issues are presented: (1) whether substantial evidence supported the agency’s decision that Avant quit for good cause attributed to her employer; and (2) whether Avant was required, prior to quitting, to inform her employer that she would quit if the conditions were not im-' proved, as held by the district court.

A. Sufficiency of the evidence. Avant’s appeal was complicated by the fact she did not participate in the hearing on Hy-Vee’s appeal to the ALJ. However, the record before the board included the statement in her letter of resignation that she was suffering from deteriorating mental health as a result of her “hostile work environment,” and the report by Behavioral Health Resources that noted her emotional distress. It also considered sworn statements provided by Hy-Vee employees that Avant had complained to Hy-Vee regarding unfair treatment, which she believed was because of her race. The board thus concluded that Hy-Vee was “well aware of the claimant’s mental condition, which was documented as being a direct result of the work environment.”

Despite the unorthodox method in which the record was presented, we believe substantial evidence supports the board’s finding of intolerable or detrimental working conditions. The fact that the evidence was produced by Hy-Vee, and not by the claimant, does not diminish the probative value of it. If an agency’s findings of fact are supported by substantial evidence, those findings are binding on judicial review. PanDa Eng’g v. Eng’g & Land Surveying Bd., 621 N.W.2d 196, 198 (Iowa 2001).

Our Administrative Procedure Act defines substantial evidence as

the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.

Iowa Code § 17A.19(10)(/)(1).

In assessing substantial evidence,

[w]e consider all the evidence together, including the body of evidence opposed to the agency’s view.
... [This rule] merely means that support for the agency finding can be gathered from any part of the evidence. Because review is not de novo, the court must not reassess the weight to be accorded various items of evidence. Weight of evidence remains within the agency’s exclusive domain. Under the circumstances great care must be taken by the reviewing court to avoid moving from the prescribed limited review into one that is de novo.

Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993) (emphasis added) (citation omitted); accord Titan Tire Corp. v. Employment Appeal Bd., 641 N.W.2d 752, 755 (Iowa 2002).

Under Iowa Code section 17A.14(1),

[a] finding shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in a jury trial.

See Clark v. Iowa Dep’t of Revenue & Fin., 644 N.W.2d 310, 320 (Iowa 2002) (holding that even hearsay evidence is admissible and may provide substantial evidence); Hamer v. Iowa Civil Rights Comm’n, 472 N.W.2d 259, 262 (Iowa 1991) (holding administrative agency not bound by technical rules of evidence). We believe the evidence submitted by Hy-Vee was the kind of evidence on which reasonably prudent persons are accustomed to rely, and the basis for Avant’s claim was adequately supported in the record.

B. The “intent to quit” issue. An employee who quits her employment without good cause attributable to her employer is disqualified from receiving unemployment benefits. Iowa Code § 96.5(1) (2003). Iowa Code section 96.6(1) provides that “[c]laims for benefits shall be made in accordance with such regulations as the department may provide.” In accordance with that statute, regulations have been adopted governing whether a voluntary quit is with good cause attributable to the employer. See Iowa Admin. Code r. 871-24.26. The relevant provisions state:

The following are reasons for a claimant leaving employment with good cause attributable to the employer:
24.26(2) The claimant left due to unsafe working conditions.
24.26(3) The claimant left due to unlawful working conditions.
24.26(4) The claimant left due to intolerable or detrimental working conditions.
24.26(5) The claimant was laid off by the employer for being pregnant; however, availability must still be determined.
24.26(6) Separation because of illness, injury, or pregnancy.
b. Employment related separation. The claimant was compelled to leave employment because of an illness, injury, or allergy condition that was attributable to the employment. Factors and circumstances directly connected with the employment which caused or aggravated the illness, injury, allergy, or disease to the employee which made it impossible for the employee to continue in employment because of serious danger to the employee’s health may be held to be an involuntary termination of employment and constitute good cause attributable to the employer. The claimant will be eligible for benefits if compelled to leave employment as a result of an injury suffered on the job.
In order to be eligible under this paragraph “b” an individual must present competent evidence showing adequate health reasons to justify termination; before quitting have informed the employer of the work-related health problem and inform the employer that the individual intends to quit unless the problem is corrected or the individual is reasonably accommodated. Reasonable accommodation includes other comparable work which is not injurious to the claimant’s health and for which the claimant must remain available.

(Emphasis added.)

Based on these regulations, Avant argues that she was not required to give notice of her intent to quit because she quit as a result of intolerable working conditions, not health problems. Avant distinguishes Suluki v. Employment Appeal Board, 503 N.W.2d 402, 404 (Iowa 1993), and Cobb v. Employment Appeal Board, 506 N.W.2d 445, 446^7 (Iowa 1993), on the ground those cases involved work-related health problems, not detrimental or intolerable working conditions. In Suluki we stated:

We think it is logical, reasonable, fair and practical to require — as a condition of entitlement to unemployment benefits — an employee to give an employer notice of work-related health problems before quitting....
We hold that, before quitting, an employee must give an employer notice of work-related health problems and that the employee intends to quit unless those problems are corrected or the employee is otherwise reasonably accommodated. Absent such notice, the employee has left work voluntarily without good cause attributable to the employer and is not entitled to unemployment compensation benefits.

503 N.W.2d at 405 (emphasis added). We reaffirmed this holding in Cobb, 506 N.W.2d at 448, which, like Suluki, involved a work-related health quit. The notice of the employee’s intent to quit required by Suluki and Cobb has now been incorporated in Iowa Administrative Code rule 871-21.26(6)(6), as quoted above.

Avant argues that she did not quit for health reasons. Her quit, rather, falls under Iowa Administrative Code rule 871— 24.26(4) — “the claimant left due to intolerable or detrimental working conditions”— so this requirement of a notice of intent to quit does not apply. The Iowa Administrative Code is clear that the two requirements outlined above relate specifically to Iowa Administrative Code rule 871-24.26(6)(&) and do not refer to Iowa Administrative Code rule 871-24.26(4).

The Iowa Administrative Code was amended in 1995 to add an intent-to-quit requirement. See 18 Iowa Admin. Bull. 57-58 (August 9, 1995). Avant notes that Iowa Administrative Code rule 871-24.26(4) (intolerable or detrimental working conditions) was not amended at that time and argues that it was the plain intent of the agency to add this requirement of giving notice of intent to quit only when an employee quits for reasons other than intolerable or detrimental conditions, namely, an “illness, injury, or allergy condition.”

Based on the plain language of the Iowa Administrative Code, we agree; a notice of intent to quit is not required under rule 871-24.26(4). A proposal to add this notice requirement to rule 871-24.26(4) was considered by the agency in response to a 1999 Executive Order to review its rules, but it elected not to do so. See 26 Iowa Admin. Bull. 234 (August 6, 2003).

We conclude that a notice of intent to quit is not required when the employee quits due to intolerable or detrimental working conditions. The court of appeals reached a contrary conclusion in Swanson v. Employment Appeal Board, 554 N.W.2d 294, 297 (Iowa Ct.App.1996), holding that an employee who quit because of unsafe working conditions was 'required to notify her employer of her intent to quit, relying on Suluki However, at the time of the employee’s quit in Swanson, the agency regulations discussed above had not been enacted. Swanson, therefore, is no longer controlling.

We vacate the court of appeals decision, reverse the district court judgment, and remand to the board for further proceedings.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

      . This section basically provides that, when a claimant is compelled to leave employment because of illness, injury, or allergy condition attributable to employment (i.e., factors and circumstances directly connected with employment aggravated these ailments), the claimant will be eligible for benefits if they satisfy several conditions, two of which are that:
      "Before quitting [the claimant] have informed the employer of the work-related health problem and inform the employer that the individual intends to quit unless the problem is corrected or the individual is reasonably accommodated.”