author: NELSON, District Judge.

text:
    NICHOLSON v. ROOP et al.
    No. 7385.
    Supreme Court of North Dakota.
    Feb. 4, 1954.

      W. J. Austin, Bismarck, for plaintiff and appellant.
    Cox, Cox, Pearce & Engebretson, Bismarck, for defendants and respondents.
   NELSON, District Judge.

Plaintiff brings this action for damages for malicious prosecution. In his complaint, after alleging the corporate capacity of defendant bank and that defendant Roop was, ■at all of the times material here, its vice-president, he alleges that because of the acts of the defendants a complaint charging him with the crime of obtaining money by false pretenses was filed with a justice of the peace of Burleigh County, North Dakota ; that under the warrant issued thereon he was brought before said justice and after preliminary hearing had on the charge made against him he was bound over to the District Court of Burleigh County, North Dakota, to answer to said charge and because of his inability to furnish bond for his appearance in said court was incarcerated in the county jail of Burleigh County for more than sixty days; that the criminal action brought against him was dismissed on the application of the State’s Attorney and the proceeding thus terminated in his favor, and by reason of the foregoing facts he suffered actual and special damages in the sum of $26,200 for which he asks judgment and in addition thereto he asks that he be awarded punitive damages in the further sum of $5,000.

Defendants answer jointly and except for admitting the corporate capacity of defendant bank and that defendant Roop was its Vice President as alleged, deny all of the other allegations of the complaint. For an affirmative defense defendants allege that a person describing himself as Plouston Nickelson on August 26, 1947, opened an account in defendant bank by depositing therein a check for $900 drawn on the Exchange State Bank of Glendive and the following day the same person wrote a check on defendant bank in the sum of $400 payable to “Cash” and that defendant bank then paid said person the sum of $400; that the $900 check was returned by the bank on which it was drawn unpaid and marked “No A/C”; that shortly thereafter defendant Roop reported the foregoing facts to the Assistant State’s Attorney of Burleigh County, North Dakota, at whose request said Roop signed a criminal complaint charging Houston Nickelson with the crime of obtaining money by false pretenses; that Houston Nickelson could not then be found and that on August 21, 1951, the State’s Attorney’s office of Burleigh County, North Dakota, received a telegram from the Chief of Police of Portland, Oregon, saying he had Lester I. Nickelson, alias Houston Nic-kelson, in custody, that extradition was waived and requested instructions. The answer further alleges that the defendants never signed any complaint against Lester I. Nicholson nor asked for his arrest and that all matters were handled by the duly and regularly constituted police officers of Burleigh County, North Dakota, and denied that any act on the part of defendants resulted in any damage to plaintiff.

At the close of plaintiff’s case defendants, made separate motions that the action be dismissed, both of which were denied. An action may be dismissed only on one or more of the grounds stated in Section 28-0801 NDRC 1943 and dismissal of the action under this statute leaves the issues undetermined and the plaintiff free to sue again. Westerso v. City of Williston, 77 N.D. 251, 257, 42 N.W.2d 429.

Defendants offered no evidence and after both sides had rested made the following separate motions for directed verdicts which were resisted:

“Defendant, Norman I. Roop, moves that this Court direct the jury to return a verdict of dismissal of the action which is against him on the grounds and for the reasons that the evidence wholly fails to establish a cause of action against the defendant.
“The evidence wholly fails, to show or to establish by a preponderance of the evidence any malice or malicious intent on the. part of the defendant, or any lack or want of probable cause and the defendant, First National Bank of Bismarck, moves that this Court direct the jury to return a verdict in its favor for a dismissal of plaintiff’s cause of action upon the same grounds and reasons that the plaintiff has failed to establish a cause of action against the defendant and 'has failed to prove any malice or. malicious prosecution or lack of probable cause in the institution originating in the orginal criminal proceeding.” (Emphasis ours.)

A ■motion 'for a directed verdict seeks not only the termination of the action but the destruction of the cause of action as well. If granted it puts an end to the claim against which it is asserted. 53 Am.Jur. 255, Sec. 308; Westerso v. City of Williston, supra.

Our statute, Section 28-1509 NDRC 1943, as amended by Chapter 204, SLND 1951, makes it mandatory on the trial court to deny a- motion for directed verdict when resisted. The statute provides:

“When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request.”

The trial court accordingly denied both motions and submitted the case to a jury, which, on July 6, 1952, returned a verdict in favor of plaintiff and against both defendants. Although the court is required to deny the motion in the first instance such ruling is subject to review on a motion for judgment notwithstanding the verdict made within ten days after rendition of the verdict. Section 28-1510 NDRC 1943, as amended by Chap. 204, SLND 1951, 'provides :

“In denying a motion for a directed verdict the court shall be deemed to have submitted the action to the jury subject to a later determination of the questions of law raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict, * * *.”

On July 9, 1952, counsel for defendants filed with the trial judge their written motion for judgment notwithstanding the verdict, setting forth as grounds therefor:

' "1. That the evidence wholly failed to show that there was' want of probable cause for the commencement of the criminal proceeding against Houston Nicholson, and that the evidence conclusively established that probable cause existed.
“2. That the evidence affirmatively establishes that there was no malice on the part of either defendants in the institution of the criminal proceedings.
“3. That the evidence affirmatively establishes that the institution of criminal proceedings was with the advice and consent and approval of the Assistant State’s Attorney of Burleigh County, the county in which the proceeding was commenced.
“4. That the evidence establishes probable cause for the institution of the criminal proceedings by the testimony of the committing magistrate who bound the plaintiff over to the District Court.
“5. That, as a matter of law, probable cause for the commencement of criminal proceedings existed against Houston Nicholson at the time of the commencement of the proceedings, and that subsequent events would have no legal bearing on the question of probable cause.”

Counsel for plaintiff was present in court when the foregoing motion was filed and participated in the hearing then had on such motion. The court granted the mo-1 tion of both defendants for judgment notwithstanding the verdict and ordered judgment that plaintiff’s action be dismissed on its merits. Judgment was thereafter entered in conformity with said order.

Plaintiff appeals from the order granting the motion of both defendants for judgment notwithstanding the verdict and from the judgment entered dismissing his action on the merits.

The denial of a motion for directed verdict does not deprive the trial court of the right to consider it further if, within the time provided by- statute, Chapter 204, SLND 1951, the party making the motion follows it with a motion for judgment notwithstanding the verdict or with a motion for a new trial. The order granting the motion for judgment notwithstanding the verdict amounts to a delayed action directed verdict. Ennis v. Retail Merchants Ass’n Mutual Fire Ins. Co., 33 N.D. 20, 156 N.W. 234; Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455, 458; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456, 458. The defendants having made their motions for dismissal at the end of the plaintiff’s case and having made their motions for directed verdicts at the close of all of the evidence, and their motion for judgment notwithstanding the verdict within ten days after its rendition and before the entry of judgment have taken all of the necessary prerequisites entitling them to have their motion for judgment notwithstanding the verdict considered by the trial court and on this appeal.

Plaintiff in his brief and on oral argument has raised two questions of procedure challenging the sufficiency of the motions for directed verdicts, and for judgment notwithstanding the verdict, which we will note before passing on the merits of the case. First .he asserts that the trial court could not consider the motions for directed verdicts made by the defendants at the close of all of the evidence, because, he says, the motions which challenge the sufficiency of the evidence to sustain a verdict for plaintiff, did not point out the particulars wherqin the evidence was insufficient. Counsel calls our attention to the familiar rule, that motions for directed verdicts will not be considered on appeal — when made on the ground of the insufficiency of the evidence — unless the particulars wherein defendant claims the evidence is lacking is specifically pointed out, and would apply it to the facts and record in this case. The rule is a salutary one and has consistently been adhered to by this court. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558; Westerso v. City of Williston, supra; Jacobs v. Bever, N.D., 55 N.W.2d 512.

This rule has generally been applied to cases where the motion for directed verdict and the companion motion for judgment notwithstanding the verdict have been denied. Jacobs v. Bever, supra; Westerso v. City of Williston, supra, and cases cited in 77 N.D. 259 and 260, 42 N.W.2d 433 and 434, which include the cases cited and relied on by plaintiff. Illustrative of the cases cited by plaintiff, in which the court held the motion for directed verdict not sufficiently specific are: Minder & Jorgenson Land Co. v. Brustuen, 31 S.D. 211, 140 N.W. 251, where the language of the motion was that “No defense has been established in this court against that cause of action.The plaintiff, on the uncontradicted testimony,-is entitled to judgment for such amount.” Davis v. C. & J. Michel Brewing Co., 31 S.D. 284, 140 N.W. 694, 696, where the motion read as follows: “Defendant moves the court to direct the jury to return a verdict in favor of the defendant against the plaintiff, for the reason that the facts proven by the plaintiff are not sufficient to, and do not, constitute a cause of action against the defendant.” and Howie v. Bratrud, 14 S.D. 648, 86 N. W. 747, where defendant moved for directed Verdict “for the reason that the evidence is insufficient to show or constitute' a cause of action.” An examination of the cases cited in 77 N.D. 259, 260, 42 N.W.2d 433, 434, will disclose that they are cases in which the motion for judgment' notwithstanding the verdict was denied. The situation in the instant case is very different. Here the trial court did review the evidence when passing on the motion for judgment notwithstanding the verdict, and must, therefore, of necessity, have reached the- conclusion that the motions for directed verdicts did point out the particulars wherein the evidence was insufficient to sustain the verdict. The motions for directed verdicts specifically state that there is no evidence of malice or want of probable cause. In Smalley v. Rio Grande Western Ry. Co., 34 Utah 423, 98 P. 311, 317, referring to the sufficiency of a motion for a directed verdict the court said:

“We have not been referred to, nor have we seen, any case holding to the contrary.” (That the motion must specify the particular grounds to justify it.) “This, however, does not mean that the movant of the motion or the court is required to state reasons supporting the grounds. If the grounds are sufficiently specified to call attention to the particular defects and the question of law on which the case is taken from the jury, that is all that is required. A mere general statement that, under the evidence, the plaintiff is not entitled to recover, or that the defendant is entitled to a verdict, or that the plaintiff has not made a sufficient case to go to the jury, does not point to anything. If, however, in a case of negligence a specification is made that the evidence is insufficient .to show negligence on the part of the defendant, or that under the evidence the plaintiff is conclusively shown to be guilty of contributory negligence, or that he assumed the risk, etc., such a specification is ordinarily sufficient. If a verdict is directed on the ground that the evidence is insufficient to show negligence on the part of the defendant, it sufficiently is made to appear on what question of law the case was taken from the jury. The making of such a specification ordinarily points out the defect within the meaning of the adjudicated cases.1’ (Emphasis ours.)

The foregoing case involved a question of negligence, but the holding is equally applicable to the case at bar where the motions pointed out that there was no proof of lack or want of probable cause or of malice. The positive statement in each that “there is no proof of lack or want of probable cause or of malice” was sufficient warning to plaintiff so that he could have, had he seen fit to do so, asked to have the case reopened to permit him to introduce further evidence in support of these two necessary elements in his cause of action. Counsel for plaintiff made no such request, nor has he on this appeal suggested that the evidence could be amplified in these respects on a new trial, but has steadfastly maintained that the evidence as now contained in the record is sufficient to sustain the verdict rendered. We must, therefore, assume that further proof of malice or want of probable cause was not available or did not exist, and that hence the lack, of evidence to sustain the verdict cannot be supplied on another trial if one were to be had. The motions for directed verdicts pointed out definitely and specifically that there was in the record neither proof of want of probable cause or of malice. In other words these elements of proof necessary to sustain plaintiff’s cause of action were wholly lacking. This court has held that “The alleged grounds of the insufficiency of the evidence need not be specified in a motion for a directed verdict with the same particularity that is required in a motion for a new trial; it is enough that the insufficiency is pointed out in general terms.” Olson v. Great Northern Railway Co., 56 N.D. 690, 219 N.W. 209, 212. This court has held in a case involving a motion for a new trial that “While [Sec. 28-1809 NDRC 1943], upon a motion for a new trial, requires a specification of insufficiency of the evidence to sustain the verdict to point out wherein the evidence is insufficient, nevertheless, if respondent does not object to this failure, and the trial court considers the evidence and passes upon its sufficiency, the failure to point out wherein the evidence is insufficient becomes immaterial.” Clausen v. Miller, 63 N.D. 778, 249 N.W. 791, 792. We conclude that the statements in the motions for directed verdicts were sufficiently specific under the facts of the case.

The further procedural objection raised by pláintiff is that the motion for judgment notwithstanding the verdict may not be considered because the written motion was not filed with the Clerk of the District Court. The statute, Chapter 204, SLND 1951, does not require that it be filed, and if failure to file it constituted error it is error without prejudice because the record discloses that counsel for plaintiff was present when the written motion was submitted to the trial judge and participated in the hearing then held thereon. Failure to file the written motion for judgment notwithstanding the verdict with the Cleric of the District Court was not, under the facts of the case, a jurisdictional prerequisite to its consideration by the trial court or by this court on appeal.

This brings us to a consideration of the merits of the case. On August 26, 1947, a person claiming to be Houston Nickelson went to defendant bank and opened an account therein by depositing a check for $900 written by himself payable to “Cash” drawn on Exchange State Bank of Glen-dive, Montana, and signed Houston Nickel-son. The following day the same individual withdrew from the account he had opened the sum of $400 by a check for that amount, also written by himself, payable to “Cash” and signed Houston Nickel-son. Defendant Roop was then, and at the time of the trial of this action, a vice president of defendant bank and the individual who handled the original transaction resulting in the opening of the account in the name of Houston Nickelson. Some other officer or employee of the bank handled the transaction when the $400 check was presented and that amount withdrawn from the account. The $900 check was returned unpaid marked “No A/C” and because of the non-payment of the $900 check and the cashing of the $400 check defendant bank suffered a loss in the latter amount. Upon discovery of the loss defendant Roop reported the matter to Alfred Thompson, the Assistant State’s Attorney of Burleigh County, North Dakota, who prepared a criminal complaint charging Houston Nickelson with the crime of obtaining money by false pretenses. The complaint was filed with I. M. Oseth, a justice of the peace in and for Burleigh County, North Dakota, who thereupon issued a warrant for the arrest of Houston Nickelson on said charge and delivered the warrant to the sheriff of said county for service. The person named in the warrant could not then be found and the sheriff issued the customary bulletin to be circulated among law enforcing officers announcing that he had a warrant for the arrest of Houston Nickelson. Nothing further transpired in connection with the matter until August 21, 1951, when the State's Attorney's office of Burleigh County, North Dakota, received a telegram from the Chief of Police of Portland, Oregon, reading: “Lester I. Nickelson alias Houston Nickelson wanted by your office forgery in custody. Waives extradition. Advise”. When the "foregoing telegram was received the original complaint and warrant could not be located. The Assistant State’s Attorney thereupon prepared a new criminal complaint charging Houston Nick-elson with the crime of obtaining money by false pretenses arid took it to the First National Bank in Bismarck and procured its execution by defendant Roop, whereupon the justice issued a new warrant of arrest under which plaintiff herein was apprehended and returned from Portland, Oregon, to Bismarck, North Dakota, where he was placed in custody pending a preliminary hearing on the charge contained in the criminal complaint. The preliminary hearing resulted in plaintiff being bound over to the District Court. Bail was fixed, but being unable to furnish it, plaintiff was committed to jail where he remained for a period of approximately sixty days, at which time the complaint against Houston Nickelson was dismissed by a Judge of the District Court of Burleigh County, North Dakota, on the written application of the State’s Attorney of said county reciting as grounds therefor that the State’s Attorney did not believe there was sufficient evidence available to secure the conviction of Plouston Nickelson. This lawsuit followed.

In considering the evidence for the purpose of determining whether the trial court was correct in its finding that there was no proof of lack or want of probable cause of of malice, we note first that the record is conclusive that the crime of obtaining money by false pretenses had been committed by some one, a fact which is conceded by all concerned. The whole case against these defendants hinges on the identity of the person committing'the crime-and specifically. whether there was probable cau.se for believing that this plaintiff was the person- who had written the checks by means of which the crime .was committed.

Plaintiff denied that he was Houston Nickelson, the person' who signed the checks or the person named in the complaint and warrant. His counsel maintains very strenuously that defendant Roop, testifying at the preliminary hearing, positively identified plaintiff as the person who had been in the bank and who had deposited the $900 check, and he then argues that such positive identification of plaintiff was the basis on which the committing magistrate made a finding of probable cause and bound plaintiff over to the District Court to answer to the charge contained in the complaint. The record, however, does not bear out counsel’s contention. Because the question of identity is the crucial question in the case we quote all of the evidence in the record given by defendant Roop bearing on the identification of plaintiff, all of such testimony having been elicited on cross-examination under the statute, Section 31-0202 NDRC 1943.

“Q. Did you have a personal talk with the man who is — whose signature appears on the bottom of this check, at the time he presented it to you? A. Yes, sir.
“Q. Did you see- him sign the check? A. Yes, sir.
“Q. Is the party who signed this check that man over there? (Indicating the man sitting at plaintiff’s counsel table) A. I can’t say that he is.
“Q. You don’t know that? A. No, sir.”
“Q. Mr. .Roop, you appeared at the preliminary hearing .in the case of State of North Dakota against Houston Nickelson? A. Yes, sir.
“Q. And testified at that hearing under oath? A. Yes, sir.
“Q. As I take it,' there was no record made of that testimony? A. •Not to my knowledge.
“Q. • I see. Were you asked to identify the man being held, in custody ? A. Yes, sir. ...
“Q. By Mr. Thompson, the Assistant State’s Attorney? A. Yes, sir.
“Q. And what was your answer to his question as to identity? A. I— I said there was a similarity as to his stature and mannerism.
“Q. But at that time you made no positive identification? A. No, sir.
“Q. Was there some talk then had in reference to a photograph? A. That was later. Yes, sir.
“Q. And did Mr. Nicholson produce a photograph that he said was* of himself? A. Mr. Thompson gave it to me.
“Q. Did you hear Mr. Nicholson state that that was a photograph of himself? A. Yes, sir.
“Q.' So he identified the photograph which is here, introduced in evidence, which is of being a photograph of himself? A. Yes, sir.
“Q. That is this plaintiff in this lawsuit? A. Yes, sir.
“Q. And were you then asked the question as to whether the man on that photograph was the man who had been in your bank and given you that check ? * * * A. Yes, sir.
“Q. And what was your answer to that question? A. I said there was a similarity.
“Q. Isn’t it true that you said this is the man? A. No, sir I did not.
“Q. And as near as you got to identifying the plaintiff, you said there was a similarity? A. Yes, sir.
“Q. And that— A. The man comes into the bank, if I may state, had black hair and side burns, but in stature he was about the same size. That was my testimony.”
“Q. Now in swearing out this complaint, Exhibit Three, against Houston Nickelson, you were doing so for the purpose of punishing the wrongdoer for falsely obtaining money from the defendant bank, weren’t you ? A. No, sir.
“Q. What was your purpose in swearing out this complaint? A. To have Mr. Houston Nickelson arrested.
“Q. For ■ the commission of that-crime? A. Yes, sir.”
“Q. What was your purpose in swearing out that complaint? A. To have the man arrested who actually signed the check.
“Q. Yes. In other words, Houston Nickelson ? A. That is correct.”
“Q. And do you mean to tell this jury that you did not identify this man as the accused party? A. Yes, sir.
“Q. And that even though you did not testify as to his identity, that the Justice of Peace, still bound him over to the District Court? A. I assume he did.”
“Q. And didn’t you tell him (Thompson,, Assistant State’s Attorney) that you did not intend to testify in this law suit here, that you had not made an absolute identity ? A. Yes, and I still stand by that.”
“Q. And you still say that you did not identify this plaintiff in this law suit as the same and identical man— You still say in this law suit you did not identify the man who was in your bank and opened that account as the same and identical man shown on that snap shot, to the best of your knowledge, information and belief? A. Yes.”

Plaintiff called as witnesses the other persons present at the preliminary hearing, namely the deputy sheriff who apprehended plaintiff, the Assistant State’s Attorney who conducted all of the proceedings in' the criminal action, and the Committing Magistrate, and sought to show by their testimony that defendant Roop had positively identified plaintiff at the preliminary hearing. Their testimony was taken on the trial of this case for the purpose of proving what oral evidence had been adduced at the preliminary hearing such evidence not having been reported in shorthand, reduced to writing, or preserved by the use of any mechanical recording device.

When plaintiff’s counsel asked him to give the substance of the testimony that Roop gave at the preliminary hearing regarding the identity of the plaintiff, the magistrate said:

“Well, I can give the substance of it, hut I, of course, it wouldn’t be verbatim, because it’s a long time ago now. But * * * Mr. Roop, had first declined to identify the defendant in this case, Mr. — the gentleman sitting behind you there now as the person concerning whom he testified when he established the existence of the commission of the offense. Then there was a photograph introduced by another witness, Mr. Hunter, a photograph, snapshot, showing a man without any beard standing besides an automobile and Mr. Hunter testified that when he arrested or about the time he arrested the defendant in this action, Mr. Nicholson had showed him or at least had talked to him about this photograph, and he stated, as I recall it, that it was a picture of himself, taken before he grew his beard. My impression is that he said about 19 months, but I couldn’t be sure about the exact time. That photograph, picture, was introduced in evidence and should be in the record now as one of the Exhibits. Then that photograph was shown to Mr. Roop, and after having examined it, and apparently comparing it with the features of the defendant in this case * * *
“Q. (Interrupting) That is this gentleman here ? A. Yes. (Continuing) and in response to another searching question, by myself, because the identity was of great importance in this case. He finally stated that, to the best of his knowledge and belief, the man in the photograph was the man who had committed the offense concerning which he had previously testified. The charge was obtaining money by false pretenses, as I recall it. Now that was as far as Mr. Roop would go. In the things to the best of his knowledge and belief, and I am not absolutely certain those were his exact words, but that is as close as my memory will permit me to testify.”

The testimony of the Assistant State’s Attorney is substantially the same as that of the magistrate.

The strongest testimony against Roop on the matter of positive identification comes from the deputy sheriff who testified:

“He said that his features resembled very much the man, except that the man before him had no whiskers at the time he was in the bank.”

This witness was then shown the snapshot that is described in the testimony of the magistrate and asked what Roop said at the preliminary hearing with reference to the snapshot and the witness answered:

“I can’t recall the exact words, but Mr. Roop, at that time, — after looking at this picture, indicated that this man was the man that had been in the bank.”

On cross-examination the deputy sheriff said:

“I understood Mr. Roop to say it was the man that was in the bank.”

A careful consideration of all the deputy sheriff’s testimony discloses that he did not positively testify that Roop said that the man in the snapshot was the same man that was in the bank but that the deputy sheriff “understood” that Roop so testified.

The plaintiff argues that this evidence establishes that Roop positively stated that the plaintiff was the person who came into the bank and committed the crime and that the jury having found for the plaintiff, this court is bound thereby as to that fact and that plaintiff having been positively identified by Roop, he is liable to the plaintiff for false imprisonment to the extent of the damages determined by the jury.

We are unable to agree with the plaintiff either as to his contentions of fact or law. The jury were not entitled to take what the deputy sheriff understood Roop’s testimony to be and expand it by inference into a positive identification contrary to the testimony of other witnesses. The evidence does establish, however, that the jury was entitled to reach the' conclusion that Roop testified that the man in the snapshot, who was the plaintiff, was to Roop’s best knowledge and belief the man who bilked the bank. We now pass to the law applicable to the case in order to determine whether the trial court erred in granting defendant’s motion for judgment notwithstanding the verdict.

The plaintiff in a case of malicious prosecution has the burden of proving both lack or want of probable cause and malice, and if probable cause is shown, then the question of malice becomes immaterial, because no amount of malice, if there be probable cause, will render the defendant liable. Mielke v. Rode, 58 N.D. 465, 226 N.W. 507. In considering the evidence we are, however, required to consider it in the light most favorable to plaintiff. Olstad v. Stockgrowers Credit Corp., 66 N.D. 416, 266 N.W. 109; Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803; Bormann v. Beckman, 73 N.D. 720, 19 N. W.2d 455; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456. So far as the evidence of defendant Roop elicited on cross-examination under the statute is concerned we can consider only those parts that are favorable to plaintiff. Marino v. Valenti, Cal.App., 259 P.2d 84, citing Jeppi v. Brockman Holding Co., 34 Cal.2d 11, 18, 206 P.2d 847, 9 A.L.R.2d 1297; Young v. Bank of America, etc., 95 Cal.App.2d 725, 729, 214 P.2d 106, 16 A.L.R.2d 1155.

It is not incumbent on a person making complaint to the proper officers of the commission of a crime that such person should have positive proof, or proof beyond a reasonable doubt, that the person named actually committed the crime, if he has probable cause to believe that such person did commit the crime alleged and acted in good faith and with due regard to the rights of others, including the person charged, in making the complaint. The considerations governing the liability of a person making complaint to the proper officers of the commission of a crime and the effect of the committing magistrate’s disposition of the case on preliminary hearing, are well stated in the case of Krehbiel v. Henkle, 178 Iowa 770, 160 N.W. 211, 213, from which we quote:

“In trials before a justice or upon indictment involving the guilt or innocence of the party charged, a finding that he is not guilty settles only the ultimate fact that the evidence introduced upon the trial does not show beyond a reasonable doubt that he is guilty. Such finding does not involve a determination of a question as to whether the prosecuting witness had probable cause for believing him guilty at the time the information was made or the indictment found. The court, sitting as a committing magistrate, and conducting a preliminary hearing, has before him for consideration the question of probable cause, and if, upon the preliminary hearing, he finds that a crime was committed, and that the evidence shows probable cause for believing the defendant guilty of the commission of the crime, the magistrate binds the defendant over to answer to the grand jury. If he finds no probable cause for so believing, he discharges the accused. The magistrate, after a full hearing, determines that upon such hearing there is no probable cause, in fact, for believing the party guilty of the offense charged, and upon this finding, based on the evidence adduced, he discharges the defendant. He finds the ultimate fact that there was no probable cause for believing the defendant guilty of the charge, but he cannot and does not determine, even in such a finding, that the prosecuting witness had no probable cause for believing him guilty at the time of the filing of the information. The finding of the justice rests upon a hearing made. The belief of; the prosecuting witness rests upon facts, matters, and information which had come to, his knowledge before the filing of the information which, supposing him to be a, man of ordinary prudence, judgment, and discretion, were sufficient to lead him to believe the party guilty of the offense charged.
“There is a clear distinction between a finding that there was in fact no probable cause for holding the defendant to answer and the assertion thát the party filing the information at the time, was not justified, acting as a reasonably prudent man would act under like circumstances, in believing the party guilty of the offense. The justice determines, when sitting as a committing magistrate, not the guilt or innocence of the accused, but whether the facts exposed on the' trial were such as tended to show that the accused was probably guilty of the commission of a public offense. Thus it has been repeatedly held by this court that, if the defendant honestly thought the facts alleged in the information or in the affidavit in this case were true, and this belief was based upon a knowledge of facts and circumstances tending to show that they were true, which was sufficient to induce an ordinarily reasonable and cautious person to believe them true, and he did so believe them true, he is justified in commencing the prosecution, and cannot be said to be without probable cause for so doing.”

In this case the record conclusively shows that all proceeding for the arrest, apprehension and binding over of plaintiff herein were handled by the regular and duly constituted law enforcing officers. Defendant bank participated not at all and defendant Roop only to the extent that he was asked to do so by the law enforcing officers. In his brief and on oral argument counsel for plaintiff virtually concedes that the original arrest of the plaintiff was justified, but predicates his right to recover on the theory that defendant Ropp was responsible for continuing the prosecution of the criminal case against plaintiff after receiving information indicating that the plaintiff in the present action was not Houston Nickel-son the person charged in the complaint signed by defendant Roop. In support of this claim counsel cites a number of cases, and other authority, on the general proposition that even' though there may have been probable cause for the arrest in the first instance a defendant maybe held liable if, without probable cause, he continues the prosecution. We do not question the correctness of the rule of law for which counsel contends, but we fail to see where it is applicable to the facts in this case, showing, as they do, that the only participation of either defendant in the prosecution of the criminal case was in defendant Roop signing the complaint when requested to do so, and appearing and testifying at the State’s Attorney’s request at the preliminary hearing. This was not such a participation in the continuance of the prosecution as the cases contemplate. Under the law of this state once a prosecution on a felony charge has been initiated the complaining witness loses all control over it. A complaint charging the commission of a public offense, including a felony, must be dismissed by the committing magistrate if it appears that a public offense has not been committed or if there is not sufficient cause to believe the defendant guilty thereof, Sec. 29-0718, NDRC- 1943, and can be dismissed only by the judge of the district court of the county where the action is pending after the defendant has been bound over, and then only on the written application of the State’s Attorney of such county therein setting forth good reasons for the discontinuance of the prosecution. Section 29-1801 NDRC 1943 and Section 29-1804 NDRC 1943.

In the case before us, if Houston Nickelson and Lester I. Nicholson actually are different individuals there has been a mistake as to the identity of this plaintiff, but the mistake, if any, originated with and was continued by the public authorities having charge of the case.. If Houston Nickelson and Lester I. Nicholson are different individuals the initial mistake of identity was made by the Police Department of Portland, Oregon. The record is silent as to just why the members of that Department concluded that Lester . I. Nicholson and Houston Nickelson was the same individual. Plaintiff was a witness in this case in his own behalf and testified that he was not in the State of North Dakota during the month of August, 1947. He did not testify where he was during that month nor did he offer any evidence whatsoever to corroborate his claim of an alibi. Neither defendant ever made any charge against Lester I. Nicholson, signed no complaint charging him with the commission of any crime, nor did they ask that Lester I. Nicholson be arrested. The only charge made by either defendant was a charge against Houston Nickelson, as to whom there was conclusive evidence of probable cause. These defendants can not be held liable for a case of mistaken identity committed by the law enforcing officers having the matter in charge.

The situation here is not different from that present in the case of Hughes v. Oreb, 36 Cal.2d 854, 228 P.2d 550, 553, from which we quote:

“Plaintiff contends that the nonsuit as to defendant Oreb was improper, and he relies on the rule that a person who participates in an unlawful arrest, or who causes or procures or instigates it, is liable for false imprisonment. (Citing cases.) The cases make it clear, however, that the defendant must have taken some active part in bringing about the unlawful arrest and that he is not liable if, acting in good faith, he merely gives information to the authorities. (Citing cases.) It was pointed out in the Miller case [Miller v. Fano] that every person is entitled to give information to the proper officers and that it would be unjust to impose liability for an honest mistake in identification even where the identification may have been the principal cause of the wrongful arrest. 134 Cal. [103] at pages 106-407, 66 P. 183. Particularly pertinent with regard to what constitutes instigating or participating in an unlawful arrest is the language of Gogue v. MacDonald that where ‘the defendant reports the facts to the magistrate, takes no active part in the arrest but leaves the matter to the public officials and no bad faith appears, he is not liable merely because the facts he has stated to the magistrate do not constitute a public offense.’ 35 Cal.2d [482] at page 487, 218 P.2d [542] at page 545 [21 A.L.R.2d 639].
“In the present case there is evidence that defendant Oreb called the police and pointed out plaintiff as the man who was spending silver dollars, but there is nothing to indicate that he gave any false information to the officers or that he took any active part in bringing about the arrest. It might be inferred that Oreb requested the officers to make an investigation, but it is clear from the cases discussed above that his conduct was not sufficient to render him liable for false imprisonment even though the subsequent arrest may have been unlawful. The nonsuit as to Oreb, therefore, was properly granted.”

In Miller v. Fano, 134 Cal. 103, 107, 66 P. 183, 184, being one of the cases cited in the foregoing quotation, the court said: “It would be a hard and unjust law that would hold a party responsible in damages for false imprisonment for an honest mistake as to the identity of a party.” In Turner v. Mellon, 257 P.2d 15, 17, a case of false imprisonment, the Supreme Court of California said:

“All that Mellon did here was to report the commission of the crimes and state to the police officers his honest but mistaken opinion that plaintiff was the robber. This conduct did not in law amount to taking ‘some active part in bringing about the unlawful arrest,’ and since Mellon did not participate in the false imprisonment neither he nor his employer, whose only liability would necessarily rest on the doctrine of respondeat superior, is liable therefor.”

The court went on to say:

“Plaintiff relies upon Turner v. Elliott, 1949, 91 Cal.App.2d 901, 904, 206 P.2d 48, wherein understandable and commendable concern is shown for the victims of mistaken identification and ensuing false arrest. We share this concern but we think that proper concern for the victim in such a case must stop at some point along the line where to support his claims further would contravene the public interest. We think it serves the public interest — and, hence, the line should be drawn here — that citizens who have been criminally wronged may, without fear of civil reprisal for an honest mistake, report to the police or public prosecutor the facts of the crime and in good faith, without malice, identify to the best of their ability to such public officers the perpetrator of the crime. Investigation and action from then on are the responsibility of the public employes who are skilled in that work and who are paid to perform it. The victims of crimes should not be held to the responsibility of guarantors of the accuracy of their identifications.”

Schnaufer v. Price, Tex.Civ.App., 124 S.W.2d 940, is very much in point. In that case, as in the case at bar, a swindle had been perpetrated on a bank official. The arrest of the plaintiff was made solely by and upon the responsibility of public officials. But he was the wrong man. After his arrest the bank official positively identified the plaintiff as the swindler, while in the case at bar the identification is not positive. The plaintiff in that case was later released upon the opinion of a handwriting expert to the effect that he did not sign a note involved in the swindle. The court held that the plaintiff failed to establish a cause of action for false .arrest and imprisonment. That case is cited in the following annotations: 10 A.L.R.2d 756; 21 A.L.R.2d 711.

On the question of identity and the effect of the action of the committing magistrate in binding a defendant over see the case of White v. Pacific Telephone & Telegraph Co., 162 Or. 270, 90 P.2d 193, 197, where the Oregon court, among other things, said:

“Since it is undisputed that a preliminary examination was held and the plaintiff was bound over to appear before the grand jury by the committing magistrate and there being no evidence that the action taken by the committing magistrate was obtained by false testimony, fraud or other improper means, upon this ground alone, the plaintiff cannot prevail in this action.”

For further authority on the question of liability in the case of mistaken identity see 34 Am.Jur. 733, Sec. 49; Annotation in 65 A.L.R. 225; Foulke v. New York Consol. R. Co., 228 N.Y. 269, 127 N.E. 237, 9 A.L.R. 1384.

The dismissal of the criminal prosecution on the application of the prosecuting attorney would not be evidence against the defendant on the issue of want of probable cause in commencing the proceeding. 34 Am.Jur. 742, Sec. 62. See also annotation 114 A.L.R. page 889.

The plaintiff failed to prove lack or want of probable cause or malice. It follows that the judgment of the District Court must be and is affirmed.

Judgment affirmed.

MORRIS, C. J., GRIMSON, CHRIS-TIANSON and SAT.HRE, JJ., and NELSON, District Judge, concur.


source: Caselaw Access Project

author: GRIMSON, Judge. PER CURIAM.

license: Public Domain

text:
    KELLY v. LANG et al.
    No. 7366.
    Supreme Court of North Dakota.
    Aug. 18, 1953.
    On Rehearing March 1, 1954

      Wattam, Vogel, Vogel, Bright & Peterson, Fargo, with Myers & Snerly, Chicago, Ill., for appellant.
    Duffy & Haugland, Devils Lake, for respondent.
   GRIMSON, Judge.

This is, á suit for the alleged conversion of 39 feeder lambs. There is very little conflict in the evidence. The plaintiff and Clarence and Francis Longie entered into an agreement in the fall of 1949 for the raising of sheep on shares. The Longies and plaintiff each owned one-half of the sheep and were to share equally in the proceeds of sale of wool and sheep. To raise their share of the purchase price the Long-ies mortgaged their one-half interest in the sheep together with some other property they owned to the Northern Investment Corporation of North Dakota of which Kelly was an officer and in which he was financially interested. At different subsequent times, when the Longies needed cash, advances were made to them by the Northern Investment Corporation of North Dakota. Such advances were included in the renewal mortgages. These mortgages were duly filed with the Register of Deeds of Benson County where the sheep ranch was located and where the Longies lived. Clarence Longie withdrew from the enterprise in 1950 after which it was carried on by his wife, Francis Longie. She afterwards renewed the mortgage. Sales of wool and sheep were made in the names of Kelly & Longie and the proceeds divided one-half to Kelly as owner of an undivided one-half interest ¡and one-half to the Northern Investment Corporation of North Dakota to apply on the Longie mortgages.

On Oct. 5, -1951, the defendant, Weiller & Weiller Company, accepted’ and sold a consignment of the sheep of the joint enterprise and issued a check in payment thereof to Kelly & Longie in accordance with their agreement. On Dec. 3, 1951, Mrs. Longie engaged the defendant, Fred Lang, who . defaults, to truck 39 feeder lambs:of the joint enterprise to.the stockyards at Fargo, North Dakota, where the lambs were consigned to, and on Dec. 4th sold by the defendant, Weiller & Weiller Company and net payment of $787.40 was made to Francis Longie.' Except as inference might he drawn from the previous- sale and the constructive, notice of the mortgages as filed, the defendant company, had no knowledge -of Mrs. Longie’s defective title. When the plaintiff learned of this last sale he notified the defendant, Weiller & Weiller Company of his interest in the lambs and made demand upon it for said lambs which was refused. It further appears that at the,time of this shipment and sale of the 39 lambs there were at least 44 lambs of the same kind as those sold left on the ranch.

Defendant company made motions both at the close of the plaintiff’s testimony and at the close of the case for a dismissal and for a directed verdict on the grounds that the evidence showed defendant company was a marketing agency immune from liability; that the evidence showed a waiver of any lien made under the mortgage and that Mrs. Longie was an agent of plaintiff in making the sale. The motions were denied.

' The plaintiff also, at the close of the case made a motion for a directed verdict in.favor of the plaintiff which w;as denied. Thereupon, instead of submitting the case to the jury for a general verdict the court submitted only the following questions to determine the disputed facts:

“No. 1, What was the unpaid balance on the note, Exhibit 3, on Dec. 4, 1951? The jury answered ‘$3751.35.’
“No. 2, What was the value of the remaining property described in the mortgage, Exhibit 1, on Dec. 15, 1951? The jury answered ‘$4156.50.’
“No. 3, Did the plaintiff, D. W. Kelly, constitute Francis Longie his agent with authority to sell sheep in their joint names? The jury answered, ‘Yes.’
“No. 4, Did the plaintiff, D. W. Kelly, constitute Francis Longie his agent to sell the sheep sold to Weiller & Weiller Company on Dec. 4, 1951 in her name? The jury answered, ‘No.’ ”

Based upon.these answers the court ordered judgment for the plaintiff for •$401.49, damages and interest for plaintiff’s undivided one-half interest in the sheep and $29.65 costs, amounting in all to $431.14. Thereafter defendant made motions to set aside the Order for Judgment in favor of the plaintiff and for an Order for Judgment for the defendant for a dismissal of the action, which motions were denied.

The defendant appeals from the judgment and from the orders denying his motion to set aside the Order for Judgment in favor of the plaintiff and his motion for judgment of dismissal on the special verdict.

As specifications of error defendant alleges error in the denial of his motions before and after verdict and the insufficiency of the evidence to support the decision of the court.

The defendant, Weiller & Weiller Company’s first contention is that it is a marketing agency licensed and operating under the federal law; that under said law and the federal regulations it is required to serve all comers and does not have the opportunity to examine the title of the consignor; that 'it had no knowledge at that time of any defect in Mrs. Longie’s title. On these grounds it is claimed that said defendant is immune from liability for conversion of the property passing through its hands.

That question has been before the courts on numerous occasions. The rule at common law was that a factor or commission merchant who receives property from the consignor and sells it under his instructions and pays him the proceeds is guilty of conversion if the consignor, had no right to sell the property even though he acted in ignorance of the consignor’s want of title.

The question is whether the Federal Packers & Stockyards Act of 1921, 7 U.S.C.A. § 181 et seq., which makes it the duty of the marketing agency to furnish, upon reasonable request without discrimination, reasonable stockyard services, .op-, erates to relieve such agencies from the common law rule of liability. The rule adopted by' the majority of the courts is that it does not. See-Anno. 2 A.L.R.2d 124 and cases, cited.

In Mason City Production Credit Association v. Sig Ellingson and Company, 205 Minn. 537, 286 N.W. 713, 717, the liability of the marketing agency was sustained and it is further held that the “Packers and Stockyards Act was not intended to and does not disturb or supersede local or state law in respect .to chattel mortgages”. The Supreme Court of the United States twice denied the petitions for a writ of certiorari in that case. That case has been followed in- First National Bank of Pipestone v. Siman, 67 S.D. 118, 289 N.W. 416, and Moderie v. Schmidt, 6. Wash.2d 592, 108 P.2d 331. See also Citizens State Bank of Dalhart v. Farmers Union Livestock Coopera tive Co., 165 Kan. 96, 193 P.2d 636; Birmingham v. Rice Bros., 238 Iowa 410, 26 N.W.2d 39, 2 A.L.R.2d 1108. This decision is also in harmony with the holdings of this court in cases involving marketing agencies engaged in interstate commerce. See Kastner v. Andrews, 49 N.D. 1059, 194 N.W. 824; Carson State Bank v. Grant Grain Co., 50 N.D. 558, 197 N.W. 146; Hovland v. Farmers Union Elevator Co., 67 N.D. 71, 269 N.W. 842.

Defendant next contends that the lambs were severable property and that either co-owner could separate his share of the lambs without the consent of the other as long as he did not take to exceed the one-half rightfully belonging to him. ■

“The general rule of common law is that property held in common can be divided only by the consent of the owners of by a proceeding in a court of equity; and it appears that this rule .still prevails where the common property embraces several things of different warrants and values, or consists-of but a single object that cannot be divided without destroying its character or identity. But where personal property is severable in its nature and common bulk and of the same quality each tenant may sever and appropriate his share,- if it can be determined by measurement or weight, without the consent of the others.” 14 Am.Jur. Co-tenancy, Sec. 22, p. 92.

The question ■ is whether ' spring lambs come within the exception to the rule to the extent of saying that they are so alike that they could be easily divided by count. In the case of Deutscher v. Broadhurst, 69 S.D. 554, 12 N.W.2d 807, it was held they were not. In that case the court held that the lambs were common property of the co-owners and that each of them owned an undivided one-half interest in each and every one of the lambs and that the counting of them without any mention or attempt at separation did not vest sole title in either one to any of the lambs. In 4he instant case there were 83 lambs. Mathematically they could not be separated and divided equally by any method of separation. At least one would have to be held in joint ownership. While the testimony shows that these lambs were much alike yet there necessarily is some difference. There is usually some difference in their ages. There may be difference in their condition owing to health or development. The testimony shows that these lambs were to be sold when in proper condition yet they were sold in small bunches indicating that they were not all in condition at the same time. We hold that in this case the lambs were not separable and one co-owner had no right to count out and sell any of them without authority from the other co-owner.

Defendant claims that the evidence shows that Mrs. Longie was really the agent of the plaintiff in making the sales of their common property. We cannot find any evidence to sustain that. The fact that she did have authority to sell the common property in their joint names does not constitute authority to sell any of it in her own name. The jury found as a matter of fact that she did not have such authority. The arrangement between them as shown by the evidence made,them joint adventurers in this sheep enterprise.

“A party to a joint adventure has no right to dispose of the property of the adventure, or at any rate, of his co-adventiirers’ interest therein, to a third person, without the consent of his co-adventurers.” 30 Am.Jur., Joint Adventures, Sec. 43, p. 700.

Clearly, one joint adventurer may not appropriate the joint property, or deprive his co-adventurers of the benefit thereof. See Anno. 62 A.L.R. 23.

Defendant company claims that plaintiff’s damages are fully mitigated, and cites the special verdict of the jury. The jury found that on Dec. 4, 1951 the balance due on Mrs. Longie’s note to the corporation was $3751.35 and that the value of the remaining property described in the mortgage on Dec. 15, 1951 was $4156.50. That would leave an excess value of the remaining property over the mortgage debt of $405.15. That there was property of that value remaining, the defendant company claims would not only mitigate plaintiff’s damages because of the sale of the mortgaged half interest in the 39 lambs but also offset the damages caused plaintiff by the sale of his undivided half interest in those lambs.

It appears according to the valuations of the jury that there was sufficient of the property included in the mortgage remaining so that the mortgagee and its assignee could recover out of that property a sufficient amount to pay up the mortgage without considering the 49 lambs. That fact could properly be claimed by the defendant company in mitigation of the damages caused by the sale of the mortgaged half of the property. In Coan v. Plaza Equity Elevator Company, 61 N.D. 627, 239 N.W. 620, 624, this court said:

“It is well settled that the owner of the property that has been converted by another can only recover his actual loss, and facts which would go to mitigation of damages are competent evidence on the trial of an action in conversion.” (Citing cases.)

On the strength of that evidence the district court held and the plaintiff concedes that plaintiff’s damages on account of the sale of the mortgaged half interest in the lambs were mitigated. That reduced the damages that plaintiff claims by one-half and left his claim of damages for the sale only of his undivided half interest in the lambs which was the amount for which the court allowed plaintiff judgment.

The defendant company claims that the valuation over the mortgage debt of $405.15 would offset plaintiff’s damages on account of the sale of his half interest' in the lambs and that the plaintiff by his actions so applied the property and waived any objections to the sale; that he in effect ratified the sale so that he is now estopped from making any claim against the defendant company for any damages. It claims that plaintiff did this by taking absolute possession of all of the property as his own.

Before the making of this sale a report of Mrs. Longie, dated 8-6-51, disclosed that “There existed a shortage of 38 ewes in the flock owned by D. W. Kelly and myself.” Mrs. Longie, according to the agreement was liable for all losses above 3 per cent. She admitted that this loss seriously impaired her loan and gave a new “On demand” note and mortgage covering all of her property, including her undivided one-half interest in the sheep. She also writes to the Northern Investment Corporation of North Dakota “and/or” D. W. Kelly:

“I further place with you a bill of sale to all my property and hereby irrevocably authorize you, the Northern Inv. Corp. of N. Dak., to accept, at any time you see fit, a sum of money that will pay my loan in full. When this sum is paid by D. W. Kelly or any party willing to assume my financial burden, to you, you are to hand the payer a bill of sale to all my property.”

After this and the sale of the lambs involved in this action Kelly came to the conclusion that the arrangement between them must be dissolved. Mrs. Longie tried to make arrangement with one Wayne Rig-gin to take over her deal with Kelly and the Northern Investment Corporation of North Dakota. On Dec. 4, 1951, she signed a bill of sale to Riggin covering her undivided one-half interest in the sheep and her whole interest in some other property on the ranch owned solely by her. The express consideration in the bill of sale was $3751.35 with the following explanation: “It being understood that I am transferring everything left on Kelly ranch in which I may have an interest; that Wayne Riggin is assuming my debt with'-the exception of a $75.00 check given to Kelly Offices and returned by the bank with notation, ‘NSF.’-” Mr. Riggin refused to take over the deal when he found- out how deeply Mrs. Longie was involved, and writes Mr. Kelly:

“Francis Longie has'proffered me a bill of sale to her undivided one-half interest in sheep and full interest in some other personal property; all of which is mortgaged to the Northern Investment Corp. of N. Dak. I am unable to accept this bill of sale because the price she wanted'is more than the now remaining property is worth.”

Mrs. Longie finally went to Montana leaving all of the mortgaged property on the Kelly ranch. Mr. Riggin agreed to take care of the sheep and property under an arrangement with Mr. Kelly. The sheep and the rest of Mrs. Longie’s property were still being taken care of by Mr. Riggin at the time of the trial. No foreclosure had been had by Northern Investment Corporation of North Dakota or its assignee, the plaintiff. Mrs. Longie still owned her undivided one-half interest in the mortgaged property. She had tried to sell it to Mr. Riggin but failed because he thought she owed more on it than it was worth. She had given plaintiff a bill of sale in blank of not only her one-half interest in the sheep but her other personal property on the ranch to turn over to anyone who would pay her obligation to the investment corporation in full. There is no evidence that anyone had accepted her offer.

There is no evidence that the plaintiff converted the property or took it over as his own. He has not accepted the blank bill of sale authorized by Mrs. Longie but if he had done so that would only satisfy the mortgage debt in full and would mitigate only plaintiff’s claim as to the mortgaged half interest in the lambs. If he foreclosed, the amount brought on foreclosure would be a matter only between him and Mrs. Longie. The defendant company would not have; any claim-to any excess in the proceeds over the mortgage debt any more than it could be held liable for any deficiency: Mrs. Longie might be entitled to an accounting but the defendant company could not take any advantage thereof. . ■

The legal aspects of the situation are the same as if 'the mortgage was held by thé original mortgagee; a separate and different entity. Plaintiff’s rights under-his co-ównership are different from his rights as' ah assignee of the mortgage. While the evidence shows his damages under the mortgage may be mitigated that has nothing to do with his damages by virtue of his co-ownership of a half interest in the lambs. Those rights remain- as if he had never Owned the mortgage and when so considered, plaintiff’s interest as half owner of the lambs was clearly converted by the sale of the lambs by Mrs. Longie and the defendant.

The evidence does not show that there was any ratification of the sale by the plaintiff or that his actions created any waiver or estoppel on the part of plaintiff.

. The judgment of the district court is affirmed. .. -

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

On Rehearing

PER CURIAM.

We granted a rehearing in this matter. Wé heard arguments by counsel and reexamined the briefs and record. We have given the whole matter further consideration and abide by our original decision.


author: GRIiMSON, Judge.

text:
    BREITWIESER v. STATE.
    No. 7406.
    Supreme Court of North Dakota.
    Feb. 26, 1954

      Johnson & Rausch, Bismarck (Peterson & Davies, Grand -Forks, of counsel), for appellant. '
    E. T. Christianson, Atty. Gen., Paul M. Sand, Asst. Atty. Gen., Bismarck, for appellee.
   GRIiMSON, Judge.

J. V. Breitwieser, Dean of the College of Education of the University of North Dakota, on March 7, 1950, while in the course of. his employment, received fatal injuries in a Northwest Airlines plane crash in St. Paul, Minnesota, and died immediately. He left surviving him his widow, this appellant, and five children, all of whom were of age.

The University of North Dakota had contributed to the workmen’s compensation fund of the State of North Dakota, for the protection of its employees, as provided by the workmen’s compensation law, Title 65, NDRC 1943, and also carried for them the extra territorial coverage while working outside the state as provided by Sec. 65-0101, NDRC 1943. On March 27, 1950, Mrs. Breitwieser applied to the North Dakota Workmen’s Compensation Bureau for compensation under the provisions of that law on account of the death of her husband upon whom she was wholly dependent.

Before any action was taken on this claim by the Bureau Mrs. Breitwieser instituted proceedings to recover damages for the death of her husband from the Northwest Airlines under Mason’s Minnesota Statutes of 1927, 1944 Supp. Vol. 4, Sec. 9657, as -amended Act Apr. 20, 1943, c. 538,' Sec. 1, M.S.A. § 573.02, governing damages for death by wrongful act.' She was his personal representative by virtue of her appointment as executrix of her husband’s will. She also was his only dependent. Those negotiations were successful and the Northwest Airlines or its insurance carrier paid her the sum of $10,-000, in accordance with the provisions' of that law.'

Thereafter the Workmen’s Compensation Bureau made its order awarding the claimant, Mrs. Breitwieser, compensation ,of; $15.75, per-week but, finding that the workmen’s compensation fund was subro-gated to the rights of Mrs. Breitwieser to the $10,000 received by her from the Northwest Airlines, ordered that no payments should be made until the amount determined by the Bureau to be due to the claimant equals the sum of $10,000.

There is no dispute over the determination of the Workmen’s Compensation Bureau as to the amount of weekly payments to which claimant is entitled but issue is taken with the determination of the Bureau that the fund is subrogated to the rights of Mrs. Breitwieser to the $10,000 received under the Minnesota wrongful death statute and to the application of that sum to the compensation due the claimant. It is claimed that in effect such determination amounts to a denial of compensation, as the claimant was 65 years of age and under the award of the Bureau she would not receive any payment from the fund for 12 years and 17 weeks which is beyond her life expectancy.

From this award the claimant, Mrs. Breitwieser, appealed to the district court of Burleigh County. The district court affirmed the award and findings of the Workmen’s Compensation Bureau and ordered judgment accordingly. From that judgment the claimant appeals. No question is raised as to the right of the claimant, hereinafter called appellant, to appeal from this award by the Workmen’s Compensation Bureau.

The sole issue on this appeal is whether the workmen’s compensation fund is entitled to be subrogated to the rights of the appellant to the sum of $10,000, received by her under the wrongful death statute in Minnesota. The determination of that issue involves the consideration of two statutes, the workmen’s compensation statute of North Dakota, and the wrongful death statute of Minnesota as they have been construed by the courts of the respective states and their application to the facts in this case.

The North Dakota workmen’s compensation law was enacted in 1919 for the purpose of providing sure and prompt relief for workmen injured in hazardous employments and for their dependents. The object was to make an industry carry the damages resulting from injuries therein. Both employer and employee gave up certain common-law rights in order to achieve the objects of the law. Instead of the uncertain action for damages from the employer for injuries received in the employment the act made provisions for the allowance of compensation for such injuries regardless of the question of fault. It then placed on the employer the responsibility of providing a fund out of which the compensation would be paid. He had to contribute premiums in proportion to the hazard existing in his employment as found by the Workmen’s Compensation Bureau, Sec. 65-0401, NDRC 1943, and his liability is limited to that. The fund then became the insurer of the employer for injuries or death occurring in his employment. Provision was also made for suits against third-party wrongdoers responsible for such injuries or death.

On that subject the provision of the North Dakota workmen’s compensation law, in force at the time involved in this lawsuit, reads as follows:

“When an injury or death for which compensation is payable under the provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents may claim compensation under this title and obtain damages from, and proceed at law to recover damages against, such other person. If compensation is claimed and awarded, under this title, the fund shall be subrogated, pro tentó [pro tanto] to the rights of the injured employee or his dependents to the extent of amount of compensation paid. The action to recover such damages against such other person shall be brought in the name of the injured employee, or his dependents in the event of his death, in his or in his dependents' own right and name for the balance of compensation due him and as trustee for the workmen’s compensation bureau for what it has paid on such claim. Expenses and costs of such litigation shall be prorated between claimant and bureau, should any damages be awarded. If no damages are awarded, the cost of the litigation shall be paid by the employee.” Sec. 65-0109, 1949 Supplement NDRC 1943.

Under this provision of the law if the employee claimed compensation and sued a third party the fund was subrogated pro tanto to the recovery of the employee in such lawsuit.

The purpose of this provision for subrogation is to make the wrongdoer who caused the injury, contribute to the payment of compensation for that injury to employee or his dependents whenever possible. This subrogation is a part of the rights yielded by the employee for the right of speedy compensation without regard to his own fault. The injured employee or his dependents receive compensation allowed by law irrespective of the result of the lawsuit. If recovery is made that reimburses the fund for the compensation allowed the employee or his dependent. Anything recovered above that is retained by the employee or his dependent.

Mrs. Breitwieser could have brought her action in Minnesota without coming under the North Dakota workmen’s compensation act. She could not, however, have come under that act except for the contract made by the University and the bureau for extraterritorial protection of her husband.

When Mrs. Breitwieser made her application for compensation under the North Dakota workmen’s compensation law she elected to come under that law. She accepted the terms thereof which included the subrogation clause. She was taking advantage of the actions of the University in making contributions to the workmen’s compensation fund and providing for extra territorial coverage both of which were to provide speedy compensation for her. She became bound by the law and assumed her obligation as a dependent of her husband.

The rights conferred on employers and employees under workmen’s compensation statutes are controlled by the statutes of the state of the primary employment. Betts v. Southern Ry. Co., 4 Cir., 71 F.2d 787; Bradford Electric Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696. Those rights are purely statutory and while the provisions of the act are to be construed liberally in favor of the workmen, State v. E. W. Wylie Co., N. D., 58 N.W.2d 76, the intent of the statute must be carried out.

In Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W.2d 198, 203, the following construction of the subrogation clause from Tandsetter v. Oscarson, 56 N. D. 392, 217 N.W. 660, was quoted with approval :

“If compensation is claimed and awarded, the North Dakota workmen’s compensation fund is subrogated to the rights of the injured employee or his dependents to recover against that person. (The third party wrongdoer.) The statute is not ambiguous. It does not say that the workmen’s compensation fund shall have the right to recover, it does not extend the right to ■both parties, but it says the workmen’s compensation fund shall be subrogated to the rights of the injured employee, and it follows that all the rights which the injured employee had to bring such action are in law conveyed to the workmen’s compensation fund. ‘Subrogation in its broadest sense is the substitution of one person in place of another with reference to a lawful clarim of right’ 25 R.C.L. 1311.”

It is, however, contended by the appellant that the subrogation clause in Sec. 65-0109, supra, is not applicable in this case because the action for wrongful death was pursued by the appellant in the State of Minnesota and under the Minnesota law. Counsel for appellant argues that neither Mrs. Breit-wieser as a dependent nor the Workmen’s Compensation Bureau for the fund have any right to bring an action for damages under the Minnesota wrongful death act. That act reads as follows:

•“When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefor if he might have maintained an action, had he lived, for an injury caused by the same act or omission. The action may be commenced within two years.after the act or omission. The damages therein cannot exceed $10,000.00, and shall be for the exclusive benefit of the surviving spouse and next of kin, to be distributed to them in the same proportion as personal property of persons dying intestate ; but funeral expenses, and any demand for the support of the decedent other than old age assistance, duly allowed by the probate court, shall first be deducted and paid. Provided, that if an action for such injury shall have been commenced by such decedent, and not finally determined during his life, it may be continued by his personal representative for the benefit of the same persons and for recovery of the same damages as herein provided, and the court on motion may make an order, allowing such continuance, and 'directing pleadings to be made and issues framed conformably to the practice in action begun under this section.” Mason’s Minnesota Statutes of 1927, 1944 Supp. Vol. 4, Sec. 9657, as amended, Act Apr. 20,' 1943, c. 538, Sec. 1, M.S.A. § 573.02.

All the matters pertaining to the right of recovery for wrongful death are controlled by the laws of the state where the cause of action arose. Where an injury has been suffered in' a sister state the laws of that state govern to the extent of the remedy. Dowell v. Cox, 108 Va. 460, 62 S.E. 272; State of Maryland for Use of Joynes v. Card, 175 Va. 571, 9 S.E.2d 454; Betts v. Southern Ry. Co., 4 Cir., 71 F.2d 787; Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N.W. 275, 171 N.W. 935; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N.W. 664, 34 L.R.A. 503.

The Minnesota statute above quoted under which Mrs. Breitwieser’s proceedings were had controls not only the right of action but the party in whom that right of action is vested and for whose benefit any recovery will accrue. We must, therefore, look to the construction given this Minnesota act by Minnesota courts to see who may bring such action and for whose benefit.

The Supreme Court of Minnesota in construing the wrongful death statute of that state has held that that statute does not vest a cause of action for wrongful death exclusively in the personal representative of the deceased but that such action may be maintained by a dependent of the deceased as well, and that where a dependent, who is entitled to and has claimed workmen’s compensation for his loss, recovers damages in such an action, the employer of the deceased is entitled to subrogation to the. extent of his liability to such dependent under the workmen’s compensation law. In the case of Fidelity & Casualty Co., v. St. Paul Gas Light Co., 152 Minn. 197, 188 N.W. 265, the court said:

“A careful reading of the pertinent provisions of the Compensation Act discloses no language indicating a legislative purpose or intent by the third party provisions thereof of creating any new remedy for the death of an employee by the .negligent act of a person other than his employer. A remedy for a wrong of that character existed at the time of the passage of the compensation statute, under the death by wrongful act statute, just referred to, and there was no occasion for supplementing or adding thereto by further legislation. The act expressly recognizes the existence of the ’ remedy, and provides that cm injured employee or his dependents, where death results from the negligent or Wrongful act of a third person, may at his or their option pursue it against the third person, or demand compensation from the employer. * * * (Italics ours.)

The plaintiff in that case had insured the employer and under the statute became subrogated to the right of the employer to reimbursement from the third-party wrongdoer for the amount awarded to the dependent of the deceased under the Minnesota workmen’s compensation act.

In the instant case, the workmen’s compensation fund, being entitled to subro-gation under our act, is in a position similar to that of the plaintiff who was the insurer in the Minnesota case and is entitled to be subrogated to the right of the dependent, Mrs. Breitwieser, to recover under the Minnesota wrongful death statute. . Mrs. Breitwieser, as the personal representative and dependent of her deceased husband, had a cause of action in either capacity under that statute. She recovered damages against the negligent third party under that statute. To the extent that the North Dakota workmen’s compensation award covers the same injury that she suffered through the loss of her husband by his wrongful death, her recovery, as represented by the amount actually paid to her, inures to the benefit of the insurer, the North Dakota workmen’s compensation fund. , It follows that the bureau may properly insist that the amount so received by her shall first be exhausted in accordance with the terms of the award before the bureau be required- to make further payment. In other words, she must exhaust the sum received by her which represents a right of recovery to which the fund would be subrogated under ,our workmen’s compensation law before she is entitled to payment by the bureau under the award.

Counsel for the appellant relies on the case of Anderson v. Miller Scrap Iron Co., 176 Wis. 521, 182 N.W. 852, 853, in support of his position. In that case the question involved was whether the employer qr' his insurer under 'the Wisconsin Workmen’s Compensation Act had ’ succeeded to the rights of the injured employee and could bring an action for damages under' the

wrongful death statute of Michigan where the fatal injury occurred. The Miller Scrap Iron Ca was, the employer and claimed to have acquired the cause of action against Herman Miller, the third-party wrongdoer by the Wisconsin workmen’s compensation act, Sec. 2394-25, Wisconsin Statutes 1919, which provides:

“ ‘The making of a lawful claim • against an employer ' or compensation insurer for compensation under sections 2394-3 to 2394-31, inclusive, for the injury or death of an employé shall operate as an assignment of any cause of action in tort which the em-ployé or his personal representative may have against any other party for such injury or death; and such employer or insurer may enforce in their own name or names the liability of such other party for their benefit ás their interests may appear.’”

The court held that this section operated as an assignment of any cause of action that the employee or his personal representative might have against a third party where the employee or his personal representative is the applicant for compensation under the w'ofkmen’s compensation act of Wisconsin and that an action under the wrongful death statute might be brought by the employer or insurer as such as-signee in Wisconsin. The court says that while an employee cannot by" contract in his lifetime assign a cause of action created for the benefit of those who survive him because he has' no interest therein as it does hot accrue' until his death yet the “cause of action is at all times under the control of the Legislature of this state, which body may provide a different remedy under certain conditions, and provide that, when the employer pays compensation, the cause of action which the personal representatives of the deceased had against a third party shall stand assigned to the employer.” The court also says: “When the employer pays the compensation required by the terms of the Compensation Act, the cause of action created by section 4255 (Wrongful death statute of Wisconsin) against the third . party shall be assigned to him as a matter, of law. * * * ” Apparently no such change had been made by the legislature in Michigan. The court held that the liability in Michigan under the wrongful death statute was in favor of the decedent’s estate and was under control of the administratrix who was the plaintiff in the case and that she was only one who could bring such an action. Under that interpretation neither the employee or his dependent nor the employer had any right to bring an action under the wrongful death statute of Michigan. That is not the situation in the instant case .where as we have shown an employee or his dependents may bring an action under the wrongful death statute in Minnesota.

There is, however, as contended by counsel for the appellant, one feature of the Minnesota wrongful death statute which is in conflict with the North Dakota workmen’s compensation act and on which appellant’s counsel is supported by the Anderson case. Under the North Dakota statute all of the compensation goes to the dependents. Under the Minnesota wrongful death statute any recovery goes to the “surviving spouse and next of kin” and is to be divided in the same proportion as personal property of persons dying intestate that is one-third to the widow and two-thirds to the heirs. 3 Mason Minniesota St.1938 Supp. Sec. 8992-29, M.S.A. § 525.16. In accordance therewith only the one-third of the amount received could be distributed to Mrs. Breitwieser, the only dependent. The rest of the money was to be distributed to the other legal heirs.

On this matter of the distribution of the recovery the Minnesota law must govern because that is where the cause of action arose. Any application of the North Dakota law on the matter of distribution of recovery under Minnesota law would be to give the North Dakota law extraterritorial power.

On this point the court in Anderson v. Miller Scrap Iron Co., supra, said:

“To recognize the right of the Legislature of this state (Wisconsin) to say that * * * it (the cause of action) shall inure to the benefit of any except those specified by the law of Michigan is to ascribe to the Legislature of this state extraterritorial power. To apply the provisions of the Workmen’s Compensation Act to the present cause of action is to take away from some of the beneficiaries of that cause of action the benefits thereof and confer them upon another. Neither the Legislature nor the courts of this state have power to interfere with the cause of action created by the laws of a sister state.”

In an action brought by the adminis-tratrix of a resident of Alabama for damages under the wrongful death statute of Florida, F.S.A. §§ 768.01, 768.02, the court held: “As to the objection grounded on the different disposition of the fund by the laws of Florida and the laws of Alabama, it is enough to say that the law of Florida which' gives the right, and gives direction to the proceeds of such a recovery, is the law of the case both as to the recovery and to the disposition of the proceeds.” Florida Central & Peninsular Railroad Co. v. Sullivan, Adm’x, 5 Cir., 120 F. 799, 801, 61 L.R.A. 410. See also A.L.I. Conflict of Laws, Chapter 9, p. 481; 16 Am.Jur., Death, Secs. 247, 248, p. 170.

The Minnesota Supreme Court has passed on the manner of the distribution of recovery under the Minnesota wrongful death act in the case of Joel v. Peter Dale-Garage, 206 Minn. 580, 289 N.W. 524. One Martin Joel, insured under the Minnesota Workmen’s Compensation law, sustained fatal injuries in an automobile collision. The widow, Dora Joel, as administratrix, brought action for wrongful death against the wrongdoer and recovered $9,500. That recovery was distributed one-third to the widow. The remaining two-thirds was equally divided among eight children, three of whom were minors. Then Mrs. Joel claimed benefits under the workmen’s compensation law of Minnesota. The employer and his insurer admitted liability but claimed credit on the compensation for the entire net proceeds of the settlement including the sums received by the five children who were not dependents. The district court held that the employer and insurer were entitled only to credit for the share received by the dependents — the widow and the three minor children. On an appeal the supreme court held that the Minnesota workmen’s compensation act did not amend the wrongful death act as to the distribution of proceeds and the order of the district court allowing only the share of the dependents on the compensation was affirmed.

It is, therefore, clear that only the amount awarded under the Minnesota statute to Mrs. Breitwieser, the dependent, can be claimed as credit on the compensation due her under the workmen’s compensation act. One-third of the recovery less one-third of the expense of the settlement is all she recovered. The workmen’s compensation fund is subrogated only to that extent.

It is, however, contended by counsel for the appellant that the workmen’s compensation fund was not entitled to be subrogated to Mrs. Breitwieser’s right of recovery in the instant case because no payments had been made out of the fund on the compensation and that payment of the compensation was a prerequisite to subrogation. Sec. 6S-0109, supra, provides: “If compensation is claimed and awarded under this title, the fund shall be subrogated pro tentó [pro tanto] to the rights of the injured employee or his dependents to the extent of amount of compensation paid.” Then this section says that the action against a third party shall be brought by the dependent for “the balance of compensation due him and as trustee for the workmen’s compensation bureau for what it has paid on such claim.” That does not mean that no third-party action can be brought until the compensation is paid in full. The workmen’s compensation act must be interpreted as a whole and not by taking a single word here and there to determine its true meaning. In re Milwaukee Chapter, Izaak Walton League of America, 194 Wis. 437, 216 N.W. 493, 495. iWhen that section is construed as a whole it means that the dependent must refund out of her recovery anything she has been paid on the compensation due her and keep the balance to apply on the compensation awarded and not paid. That is just what the bureau has attempted to do in this case. Nothing has been paid to the claimant so there is no reimbursement to be made to the fund. The bureau is trying to apply the whole of the recovery on the amount that has been awarded as compensation. It can however, apply only the amount actually received by Mrs. Breit-wieser as a dependent, as hereinbefore shown.

The judgment of the district court is modified and the case is remanded to the district court with directions to vacate the judgment herein and to remand the case to the workmen’s compensation bureau with directions to modify its award of compensation to the claimant by crediting thereon only the net one-third of the amount of the recovery in the Minnesota action.

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