text:
    Dorothy B. CARLSON, et al., Appellants, v. Darlene CHERMAK, Douglas County Recorder, et al., Respondents.
    No. C8-01-1475.
    Court of Appeals of Minnesota.
    Feb. 26, 2002.

      James M. Neilson, Babcock, Neilson, Mannella, LaFleur <& Klint, P.L.L.P., Ano-ka, MN, for appellants.
    Paul Donald Reuvers, Iverson Reuvers, L.L.C., Bloomington, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge, HANSON, Judge, and FOLEY, Judge.
   OPINION

FOLEY, Judge.

Appellant landowner Dorothy Carlson unsuccessfully sought a variance from respondent Douglas County’s shoreland development ordinance. She did not appeal the denial by the Douglas County Board of Adjustment (BOA), but five months later, after the 30-day statutory period for appeal had run, she commenced this declaratory-judgment action challenging the applicability and enforceability of the shoreland ordinance to her property. The district court assumed subject-matter jurisdiction and dismissed the action on the merits, concluding the ordinance was applicable to Carlson and the county had authority to enforce the ordinance against her property. Because we conclude that Carlson’s declaratory-judgment action presented claims arising out of the denial of the variance that should have been raised on direct appeal from the BOA’s variance denial, we affirm the dismissal on the ground of lack of subject-matter jurisdiction.

FACTS

Appellant Dorothy Carlson originally owned one parcel of land on Lake Louise in Douglas County. In 1979, the parcel was platted as “Carlson’s Shore” and divided into five lots.

In 1990, the Minnesota Legislature declared shoreland development a state concern and established new restrictions on shoreland development requiring counties to adopt state standards in their zoning ordinances. 1990 Minn. Laws ch. 391, art. 6 §§ 25-29 (now codified at Minn.Stat. §§ 103F.201 (regulatory purpose of shore-land development), .211, .215 (listing criteria for subdivision, use, and development of shoreland, which must be incorporated by commissioner of natural resources into standards and model ordinance for counties) (2000)). Compliance with the shore-land development legislation was ensured by providing that counties failing to adopt an adequate shoreland development ordinance would have to pay the cost incurred by the commissioner in adapting the state model ordinance to the county. See Minn. Stat. § 103F.215, subd. 4.

Douglas County opted to approve a zoning ordinance using identical language to that found in the model. The pertinent part of the Douglas County ordinance tracks with the model, stating that “[i]f, in a group of two or more contiguous lots under the same ownership, any individual lot does not meet the [20,000 square feet minimum requirement], the lot must not be considered as a separate parcel of land for the purposes of sale or development.” Minn. R. 6120.3300, subpt. 2D; Douglas County, Minn., Zoning Ordinance §§ III.C.9, V.F.5.C (May 9, 1983). The Douglas County ordinance clearly stated that this and other performance standards were designed to encourage a high standard of development and to prevent and eliminate any incompatible conditions. Douglas County, Minn., Zoning Ordinance § V.

After Carlson sold Lot 1, a shoreland parcel, on May 14, 1999, respondent Douglas County Recorder refused to record the warranty deed, noting on the deed: “Held. Per zoning. Needs to sell both lots — cuz non-conforming. Need variance.” Carlson then sought a variance from the BOA. Her application requested that she be allowed to subdivide her land to create a nonconforming parcel. Because Lot 1 was 8,300 square feet and contiguous Lot 2 was 8,700 square feet, separate or combined, her lots were still less than the required 20,000 square feet for a conforming parcel.

After a hearing, including comments by Carlson’s representative, the BOA denied the variance with seven accompanying findings of fact. The BOA specifically stated that approval of the requested variance would only strengthen a nonconformity and would require future variances with regard to improvements. It also found that Carlson could continue to own the property and rent the structure on Lot 1, but could not sell Lot 1 without violating the Department of Natural Resources’ (DNR) model rules, the county’s comprehensive plan, and its subdivision and zoning ordinances.

Seven months later, Carlson filed a district court action for mandamus to compel the county recorder to record the deed and for a declaratory judgment that the recorder cannot refuse to record the deed. That action was rendered moot by Carlson and the Douglas County Recorder’s stipulation that the county could record the deed. The stipulation also reserved the county’s right to take action to enforce the ordinance, and Carlson’s right to amend the complaint to bring a declaratory-judgment action “concerning the county’s entitlement to enforce any state or local zoning regulations after a deed is recorded concerning the property which is the subject of this lawsuit.” In line with the stipulation, Carlson amended her complaint to allege that the county cannot enforce its ordinance against her property.

On cross-motions for summary judgment, the district court concluded that Carlson could not challenge the denial of the variance because she had failed to file a timely appeal. Nevertheless, the court proceeded to the merits of the action challenging the county’s authority to enforce its ordinance against her. The court concluded that the county had authority to do so and dismissed the action. This appeal followed.

ISSUE

Did the district court correctly conclude that it had subject-matter jurisdiction to determine whether the county had the authority to enforce the zoning ordinance against Carlson?

ANALYSIS

In their briefs on appeal, neither party raised the issue of the district court’s subject-matter jurisdiction over the declaratory-judgment action. They both apparently relied on their stipulation as a basis for the district court’s exercise of limited subject-matter jurisdiction. At oral argument, however, the county stated that the district court’s lack of subject-matter jurisdiction was dispositive and justified dismissal of the district court action.

An appellate court will determine jurisdictional facts on its own motion even though neither party has raised the issue. Davidner v. Davidner, 304 Minn. 491, 493, 232 N.W.2d 5, 7 (1975). Subject-matter jurisdiction is a question of law, which this court reviews de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). If the district court did not have jurisdiction to decide the declaratory-judgment action, its action is void and this court cannot review the district court’s decision. Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn.App. 1994) (district court judgment vacated because appellant failed to timely obtain a writ, which was only available method to obtain judicial review), revieiv denied (Minn. Oct. 27,1994).

The district court concluded that Carlson’s failure to appeal from the denial of the variance precluded her from challenging the denial of the variance and from raising “[a]ny arguments of authorization, constitutionality or hardship.” Nevertheless, the court went on to decide the issue framed in the parties’ stipulation, namely, whether the county had authority to enforce the zoning ordinance and prevent the sale of Carlson’s property. We conclude the court erred in treating the declaratory-judgment claims as distinct from those arising out of the variance proceeding.

Parties cannot confer subject-matter jurisdiction on a court by consent. No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 321 (Minn. 1977). The district court must have had an independent source of subject-matter jurisdiction to entertain the declaratory-judgment action. While the grant of subject-matter jurisdiction to the district courts is broad, the district court has only that jurisdiction conferred by the Minnesota Constitution or by law. Minn. Const, art. VI, § 3; Minn.Stat. § 484.01, subd. 1 (2000).

Here, the legislature specifically provided for district court appellate jurisdiction over questions of law and fact arising out of the denial of a variance by the BOA. MinmStat. § 394.27, subd. 9 (2000). Such a provision is in line with case law recognizing that quasi-judicial decisions, like variances and special use permits, are appropriately subject to direct judicial review, whereas legislative decisions, like rezoning decisions, are properly reviewed by a declaratory-judgment action. See In re Merritt, 537 N.W.2d 289, 290 (Minn.App. 1995) (distinguishing request for variance and request for rezoning and appropriate method of review for each). Deference to the authorizing statute that specifically provides for direct appeal of this variance decision, therefore, is appropriate. City of Hibbing v. Baratto, 620 N.W.2d 58, 60 (Minn.App.2000). Because it is undisputed that Carlson failed to appeal within the statutory period, the district court could exercise subject-matter jurisdiction over only those claims in the declaratory-judgment action that were independent of the denial of the variance.

We see no distinction between the issues raised in Carlson’s declaratory-judgment action and those that could have been brought on appeal from the BOA’s action denying the variance. See, e.g., Graham v. Itasca Co. Planning Comm’n, 601 N.W.2d 461 (Minn.App.1999) (district court’s appellate jurisdiction over denial of variance included constitutionality of ordinance and reasonableness of county’s action). First, both were personal challenges to the applicability and enforceability of the ordinance as applied to Carlson and her land. Second, both requested the same relief — excluding her property from the effect of the ordinance. Although Carlson uses slightly different language to frame the issues in her declaratory-judgment action, her challenge remains the same. Therefore, we conclude the district court did not have subject-matter jurisdiction over the declaratory-judgment action.

DECISION

The district court did not have subject-matter jurisdiction over a declaratory-judgment action raising questions of law and fact arising out of a board of adjustment’s denial of a variance.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Carlson’s citations to enforcement actions as support for bringing a separate action for declaratory relief are misplaced. In the distinct procedural posture of a county's action to enforce an ordinance against landowners, aggrieved parties may raise constitutional, equitable, and other defenses to enforcement whether or not they appealed denial of a variance within the statutory appeal period. See County of Freeborn v. Claussen, 295 Minn. 96, 98, 203 N.W.2d 323, 325 (1972) (landowner who failed to timely appeal denial of petition to rezone could raise constitutional issues in defending enforcement action brought by county); accord County of Barry v. Edmonds, 25 Mich.App. 589, 181 N.W.2d 599 (Mich. App.1970) (taxpayer who failed to timely appeal denial of variance could raise constitutional defense by counterclaim in action by county to enjoin his violation).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    MICKMAN BROTHERS, INC., et al., Respondents, v. FARM BUREAU MUTUAL INSURANCE CO., Appellant, Douglas Prince, Defendant.
    No. C0-01-1499.
    Court of Appeals of Minnesota.
    Feb. 26, 2002.

      Timothy P. Tobin, Gislason & Hunter, LLP, Minnetonka, MN, for respondents.
    Suzanne Wolbeck Kvas, Stringer & Roh-leder, Ltd., St. Paul, MN, for appellant.
    Steven M. Fuller, Kief, Fuller, Baer, Wallner & Anderson, Bemidji, MN, for defendant Prince.
    Considered and decided by TOUSSAINT, Chief Judge, HANSON, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge.

Mickman Brothers, Inc. and Auto Owners Insurance Company brought a declaratory-judgment action against Farm Bureau Mutual Insurance Company, seeking a declaration that Farm Bureau had a duty to defend and indemnify Mickman Brothers in an action for damages arising out of two automobile accidents. The district court granted summary judgment in favor of Mickman Brothers and Auto Owners, reasoning that the policies Farm Bureau had issued contemplated the risk and were primary. Because the Farm Bureau policies provide coverage for both accidents and were issued to satisfy the requirements of motor-carrier regulations, we affirm.

FACTS

Douglas Prince is an independent trucker who contracted orally with Mickman Brothers, Inc. to transport balsam boughs intrastate for a fixed price per load. Prince transported the boughs in self-unloading hydraulic trailers provided by Mickman Brothers. In 1998, Prince was towing a trailer Mickman Brothers had leased from Mastell Trailer Sales and provided to Prince for transportation of its boughs, when a motorist hit the trailer. The motorist was injured and his car was damaged. In 1999, Prince was similarly towing a trailer Mickman Brothers had leased, this time from Sylva Corporation, Inc., when a motorist hit the trailer and was fatally injured.

The Farm Bureau Policies

At the time of both accidents, Prince was the named insured under nearly identical Farm Bureau automobile policies. Both the 1998 and 1999 policies provided coverage for damages arising out of the use of the “owned motor vehicle.” The policies defined “owned motor vehicle” as “the motor vehicle or trailer” described in the declarations page. Prince’s 1990 semi-tractor was described in the declarations page of both policies. The Sylva trailer was also described in the declarations page attached to the 1999 policy. Exclusion J in both policies, however, precluded liability coverage for accidents in which Prince’s semi-tractor was used to tow any trailer “owned or hired” by the insured but not covered by Farm Bureau.

Pursuant to the requirements of the Motor Carrier Act and the rules and regulations of the Federal Highway Administration and the Interstate Commerce Commission (ICC), the 1998 and 1999 policies contained an endorsement for Motor-Carrier Policies of Insurance for Public Liability, indicating that the Farm Bureau policies provided primary coverage for accidents involving the owned motor vehicle. The policies also contained an endorsement (Form F) verifying the existence of coverage in accordance with state motor-carrier laws. Farm Bureau filed Form F with the state to allow Prince to obtain operating authority.

The Auto Oimers Policies

In 1998 and 1999, Mickman Brothers was the named insured under automobile-liability policies issued by Auto Owners. The applicable Auto Owners policies provided coverage for bodily injury and property damage for which Mickman Brothers or another person could be liable because of the operation of Mickman Brothers’ automobile when used with Mickman Brothers’ permission. The policies defined “automobile” to include a commercial trailer. But the policies excluded coverage when Mickman Brothers’ trailers were used with automobiles Auto Owners did not insure.

The 1998 and 1999 Auto Owners policies contained a Hired-Automobile-Liability-Coverage endorsement extending coverage to automobiles (including trailers) Mick-man Brothers “hire[d], lease[d], or borrow[ed] for use in [its] business.” But the coverage the Hired Automobile endorsements provided was expressly designated as excess over other insurance available to Mickman Brothers.

The Auto Owners policies excluded from coverage persons subject to the security requirements of motor-carrier laws because of transporting Mickman Brothers’ merchandise.

The present action

In April 2000, Mickman Brothers and Auto Owners brought a declaratory-judgment action seeking a declaration that (1) Farm Bureau had a duty to defend and indemnify Mickman Brothers for claims arising out of the 1998 and 1999 accidents; and (2) the Farm Bureau policies were primary. Shortly after, the parties brought cross-motions for summary judgment. The court granted summary judgment in Mickman Brothers’ and Auto Owners’ favor, reasoning that the tractor had caused the accident, that it was expressly mentioned in the declarations page attached to the Farm Bureau policies, and that the premium Farm Bureau charged contemplated the exposure because the risk was inherently part of the business operation for which Prince had obtained the policy. The court also noted that although the Auto Owners policies covered the trailers, they were not intended to provide primary coverage. This appeal followed.

ISSUES

I. Are the trailers Mickman Brothers provided Prince to transport its merchandise “hired” by Prince within the meaning of Farm Bureau policy Exclusion J?

II. Do the Farm Bureau policies provide primary coverage for the 1998 and 1999 accidents by virtue of the Certificate of Insurance Farm Bureau filed with the state and federal governments pursuant to motor-carrier regulations, indicating that its policies’ coverage was primary?

ANALYSIS

On appeal from summary judgment, the reviewing court must determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. The interpretation of an insurance policy raises a question of law, which we review de novo. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.1991).

Insurance policies must be interpreted as a whole. Hubred v. Control Data Corp., 442 N.W.2d 308 (Minn.1989). In interpreting insurance policies, courts must give unambiguous terms their plain, ordinary, and popular meaning, unless the parties establish a contrary intent. See Austin P. Keller Constr. Co. v. Commercial Union, 379 N.W.2d 533 (Minn.1986). Ambiguous terms, by contrast, must be construed in favor of coverage. Safeco Ins. Co. v. Lindberg, 394 N.W.2d 146, 148 (Minn.1986). Terms are ambiguous if they are susceptible of more than one meaning. Nordby v. Atl. Mut. Ins. Co., 329 N.W.2d 820, 822 (Minn.1983).

I.

Farm Bureau first argues that liability coverage for the 1998 accident is precluded by policy Exclusion J, which provides that the Farm Bureau policy does not apply “while the owned motor vehicle is used for the towing of any trailer * * * owned or hired by the insured and not covered by like insurance in the company.” Farm Bureau claims that the trailer Mick-man Brothers provided Prince to transport its boughs was “hired” by Prince because the price Prince charged Mickman for transporting its goods in trailers Mickman provided was lower than the price he would have charged had Prince been required to provide his own trailer. The reduced price thus reflected the cost of “hiring” the trailer.

Accordingly, whether Exclusion J applies depends on the meaning of the term “hired.” Minnesota courts have not construed the term “hired” within the meaning of an automobile-policy exclusion similar to the one at hand or in the unique context of intrastate trucking. But courts in other jurisdictions have. According to these courts, a vehicle is “hired” within the meaning of an exclusion identical to Exclusion J when, in addition to a contract for services, the parties have a contract by which the vehicle is hired or leased to the insured for his or her exclusive use or control for a fixed sum. See Penn. Threshermen & Farmers’ Mut. Cas. Ins. Co v. Hartford Accident Indem. Co., 310 F.2d 618, 620-21 (4th Cir.1962) (trailer employer furnished independent trucker to haul gasoline tanks for employer for a fixed sum was not “hired” within meaning of liability-policy exclusion for trailers “hired” by insured and not covered by like insurance in the company, where insured paid employer no rental or other compensation for use of truck); Boyington v. Am. Liberty Ins. Co., 284 Ala. 581, 226 So.2d 640, 642 (1969) (trailer provided to insured by employer to haul pulpwood for mutual benefit of parties not “hired” within meaning of liability-policy exclusion where insured paid nothing for use of trailer and charged usual sum for hauling pulpwood); Hanagriffs Mach. Shop, Inc. v. Slaw Constr. Co., Inc., 380 So.2d 146 (La.Ct. App.1979) (trailer furnished by shipper to named insured to haul sugar cane did not constitute “hired trailer” within meaning of liability-policy exclusion where shipper hired insured’s tractor, furnished trailer, and paid insured less than it would have paid haulers providing their own trailer).

We agree that a vehicle is “hired” within the meaning of a hired-automobile exclusion only when the parties have a separate agreement by which the vehicle is leased to the insured for his or her exclusive use or control for a fixed sum. Under this definition, Prince did not “hire” the trailer for purposes of Exclusion J because he did not have a separate agreement by which he procured the trailer for his exclusive use and control for a fixed sum. Independently of whether a separate agreement existed, the record contains no evidence that Prince compensated Mickman Brothers for the use of the trailers, or that Mickman Brothers provided the trailers to Prince for any purpose other than to advance Mickman Brothers’ specific business objectives. “To hire” means “[t]o procure the temporary use of property, usu[ally] at a set price.” Black’s Law Dictionary 735 (7th ed.1999). The plain and ordinary meaning of the term “imports a monetary consideration or its equivalent.” Boyington, 226 So.2d at 642. The record contains no evidence that Prince provided Mickman Brothers monetary consideration or its equivalent for the use of the trailer.

Our interpretation of the term “hired” also serves the evident purpose of a hired-automobile exclusion. The exclusion ensures that a trucker who hauls a trailer he or she owns or has exclusive control over maintains proper liability coverage on both the semi-tractor and the trailer. But if a trucker uses a trailer a shipper provides at no charge and for a specific purpose, then a hired-automobile exclusion should not apply.

Farm Bureau argues that Prince compensated Mickman Brothers by charging it a lower price per load than he would have charged had he provided his own trailer. According to Farm Bureau, the term “hired” is ambiguous because it is unclear whether coverage exists when an employer furnishes an insured a trailer and the insured receives less pay for transporting the employer’s goods than he would have received had he provided his own trailer. We disagree.

First, the record contains no evidence that Prince received less money per load than he would have received had he provided his own trailer. Alternatively, if the term “hired” is ambiguous, the ambiguity must be resolved in favor of the insured. See Safeco, 394 N.W.2d at 148. Farm Bureau prepared the policy and had the option of using its own words in drafting the exclusionary provisions. Insurers should expect only the interpretation commonly accepted in a popular and ordinary sense, and not some strained, unusual, or technical interpretation. The commonly accepted interpretation of the term “hired” imports monetary consideration or its equivalent. Because the record does not establish that Prince provided Mickman Brothers monetary consideration or its equivalent for the use of the trailers, the trailers were not “hired” within the meaning of Exclusion J.

The Farm Bureau policies thus initially provide Prince liability coverage for the 1998 accident. Farm Bureau concedes that its 1999 policy provides coverage for the 1999 accident because it lists the Sylva trailer as one of the owned motor vehicles. Auto Owners similarly concedes that its policies provide Mickman Brothers liability coverage for both accidents. Both insurers claim, however, that their coverage is not primary.

II.

In determining whether an insurance policy provides primary coverage, we first look at the policies’ internal rules of priority, generally contained in the “other-insurance” clauses. See U.S. Fire Ins. Co. v. Fireman’s Fund Ins. Co., 461 N.W.2d 230, 233 (Minn.App.1990), review denied (Minn. Dec. 17, 1990). If the internal rules of priority conflict in a motor-carrier case, we then look at the insurance carriers’ regulatory filings. Id. We may rely solely on the motor-carrier regulatory filings in determining priority. Id. at 234. Or we may conduct a “closest-to-the-risk” analysis and rely on the motor-carrier regulations in determining which policy is closest to the risk, i.e., which policy had the primary purpose of insuring for the risk that occurred. Id.

The Farm Bureau and Auto Owners policies contain conflicting “other-insurance” clauses applicable to liability claims. The Farm Bureau “other-insurance” clause provides that:

The company shall not be liable under Part I [the liability coverage section] for a greater proportion of any loss than the applicable limit of liability stated in the Declarations bears to the total applicable limit of liability of all collectable insurance against such loss; provided, however, the insurance with respect to Paragraph (a) a temporary substitute automobile or non-owned automobile shall be excess insurance over any other collectible insurance, Paragraph (b) a newly acquired automobile shall not apply to any liability against which the insured has other collectible insurance applicable thereto in whole or in part.

The Auto Owners “other-insurance” clause similarly provides that coverage is “excess over any other insurance available to [Mickman Brothers].”

This court has clearly stated, however, that insurance coverage a motor carrier acquires to satisfy the mandates of motor-carrier regulations is primary over other non-mandatory coverage insuring an identical risk. Id. at 233 (“We believe that implicit within the mandate requiring an entity to procure insurance is the designation of that entity as ultimately financially responsible for liability arising out of its operations.”)

Minnesota law requires a regulated motor carrier like Prince to provide insurance in a set amount to cover “injuries and damage to persons or property resulting from the operation or use of motor vehicles, regardless of whether each vehicle is specifically described in the policy.” Minn. Stat. § 221.141, subd. 1 (2000). The motor carrier must file a certificate of insurance with the state verifying the existence of public-liability insurance in the prescribed amount. Id. Farm Bureau filed the required certificates of insurance on Prince’s behalf. And on each certificate of insurance, Farm Bureau indicated that its policies provided primary coverage.

Mickman Brothers, by contrast, was not legally required to obtain insurance for Prince’s semi-tractor or the trailers. See Minn.Stat. § 65B.42 (1) (2000) (requiring owners to maintain automobile-insurance policies). Its coverage was non-mandatory and only incidentally provided. Accordingly, under this court’s holding in U.S. Fire, the Farm Bureau policies are primary and the Auto Owners policies excess. Because Farm Bureau expressly indicated in its regulatory filings that its policies provided primary coverage, we need not conduct a “closest-to-the-risk” analysis.

DECISION

The Farm Bureau policies provide primary coverage for the 1998 and 1999 accidents.

Affirmed.

      . Cf. Bituminous Cas. Corp. v. Travelers Ins. Co., 122 F.Supp. 197, 202-03 (D.Minn.1954) (interpreting term "hired” as defined in policy); Woodrich Constr. Co. v. Indem. Ins. Co., 252 Minn. 86, 89 N.W.2d 412 (Minn.1958) (same).

      . Courts construing the term “hired” in the context of other policy provisions have also defined the term to require a separate contract by which the vehicle is hired or leased to the named insured for his or her exclusive use and control. See Sprow v. Hartford Ins. Co., 594 F.2d 418, 422 (5th Cir.1979); Canal Ins. Co. v. Liberty Mut. Ins., 395 F.Supp. 962 (N.D.Ga.1975); Wostal v. Travelers Ins. Co., 239 F.Supp. 395 (S.D.Tex.1965); Citizens Mut. Auto. Ins. Co. v. Fireman’s Fund Ins. Co., 234 F.Supp. 931 (W.D.Mich.1964); S. Gen. Ins. Co. v. Alford, 234 Ga.App. 615, 507 S.E.2d 179, 181-82 (1998); Sampay v. Morton Salt Co., 482 So.2d 752 (La.Ct.App.1986); Consolidated Mut. Ins. Co. v. Bankers, Ins. Co., 244 Md. 392, 223 A.2d 594 (1966).


author: MORRIS, Chief Justice.

text:
    RASZLER v. RASZLER.
    No. 7347.
    Supreme Court of North Dakota.
    April 21, 1954.

    Rehearing Denied May 26, 1954.
    T. A. Sailer and John A. Richardson, Hazen, for plaintiff and respondent.
    Floyd B. Sperry, Golden Valley, for defendant and appellant.
   MORRIS, Chief Justice.

The plaintiff seeks a divorce from the defendant on the grounds of habitual intemperance and extreme cruelty. The parties were married in 1925. They have five living children whose names and ages, given at the trial June 10, 1952, are as follows: Arthur aged 26, Delores 25, Al-bin 18, Wilma 16, and Edna 14. The plaintiff’s age was given as 47 and the defendant’s 51. Neither of the parties is in good health. The plaintiff is extremely nervous and the defendant is afflicted with skin cancer which has resulted in an operation on his lip and requires medical treatment from time to time. The defendant earns his living by farming and part time work with the State Highway Department. He has supported his family reasonably well and provided an adequate residence in which to live.

The plaintiff testifies that the defendant has been a consumer of intoxicating liquor for the last fifteen years in progressively increasing amounts; that during the last two years he has come home in an intoxicated condition once or twice a week and on these occasions brings liquor home. This is whiskey in half pint bottles, and sometimes pints. On these occasions he swears at the plaintiff and calls her all kinds of names. Sometimes this has taken place in front of the children, particularly the daughter Wilma. The defendant has threatened to strike the plaintiff at times and on one occasion twisted her arm. He was not seeking to compel her to imbibe but he was trying to force her to go to the bars and check on how many drinks he had had. As a result of this conduct the plaintiff became extremely nervous. She was finally compelled to leave the family abode and move into a house which she had inherited in the Village of Beulah. The younger children accompanied her. The defendant remained in the house which he owns, located on a tract of land consisting of thirty-six acres lying adjacent to the Village of Beulah. The children visit the defendant frequently and do some housekeeping for him. The plaintiff had been living apart from the defendant about seven months prior to the trial. Her nervous condition is now improving.

In addition to the property already mentioned, the defendant owns a section of land about six miles north of Beulah, a full line of farm machinery, forty-five head of cattle, a car, a truck, and some cash.

The testimony of the daughter Wilma corroborates the plaintiff as to the defendant’s drinking but places the incidents as three or four times a month. She was also a witness to the arm twisting episode and says that her mother screamed with pain and that afterwards her arm was swollen up on the shoulder. She also heard her father curse her mother and call her filthy names. That was in August 1951. The eldest son, Arthur Raszler, testified that he lives out on the farm, consisting of six hundred forty acres, about five miles from his father’s home; that he farms half of the section of land and his father farms the other half; and that his father comes home intoxicated three or four times a month and is incapacitated from one to three days at a time and to that extent his father’s intoxication interferes with the working operations of the farm. He never saw his father strike his mother but did hear him curse her and abuse her on more than one occasion.

The defendant categorically denies that he drinks to excess; that he ever twisted plaintiff’s arm or hurt her in any way. He says that, while he has occasionally taken a drink of intoxicating liquor, he has never become abusive to his family; that he has never been arrested for drunkenness; that he drives a car and a truck and has never been put in jail for driving while under the influence of liquor. He says that he never swore at his wife or called her vile names but that she is highly nervous and irritable and they have had some arguments. He denies that he had ever missed work because of drinking. He produced several witnesses from around the Village of Beulah, two being former chiefs of police, who said they had never seen him intoxicated. On the other hand, the present chief of police testified that on one occasion in the spring of 1952 the defendant was too drunk to drive his car and the chief took him home after warning him not to drive.

The trial court found that the defendant was habitually intemperate and that for more than a .year preceding the commencement of the action the intemperance of the defendant was of such a degree that during a portion of the time he was unable to properly take care of his work and that such intemperance inflicts great mental anguish upon the plaintiff. He also found that the plaintiff conducted herself as a good wife but that the defendant' treated the plaintiff in a cruel and inhuman manner, cursed her in the presence of the children, called her vile and filthy names, threatened to strike her on numerous occasions, came home intoxicated, and physically injured her by twisting her arm, causing her pain and suffering, both physical and mental. •

The court granted the plaintiff a divorce upon the grounds of habitual intemperance and extreme cruelty. He awarded her custody of the minor children, required the defendant to pay forty dollars per month for the support of the minor Edna Raszler, and ordered certain payments to be made to the plaintiff, and decreed a division of the property which we will later discuss in detail. The defendant appeals and demands. a trial de novo.

Among the causes for which a divorce may be granted provided by Section 14 — 0503, 'NDRC 1943 are extreme cruelty and habitual intemperance. .Section 14-0505, NDRC 1943 states that:

“Extreme cruelty is the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other.”

Section 14-0508, NDRC 1943 provides that:

“Habitual intemperance is that degree of intemperance from the use of intoxicating drinks, morphine, opium, chloral, cocaine, or other like narcotic drugs, which disqualifies the person a great portion of the time from properly attending to business, or which reasonably would inflict a course of great mental anguish upon' the innocent party.”

This court has said:

“Under section 2739, Rév.Codes, [Section 14-0505, NDRC 1943], a decree of divorce may be granted in this state by reason of the infliction of grievous mental suffering, although such suffering produce no bodily injury.
“But whether or not, in any given case, grievous mental suffering has been inflicted upon the complaining party, is purely a question of fact to be determined from all the circumstances of the case, including the mental characteristics of the party complaining, so far as the same may be developed in the case.” Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870.

The record clearly shows that the defendant frequently used intoxicating liquor to excess but not to the extent that it seriously interfered with his occupation or greatly reduced his earning power. His consumption of liquor increased during the two years preceding the trial, but whether it has reached the stage of habitual' intemperance as that term is used and understood in law is a matter concerning which there is considerable doubt. ' It is clear, however, that defendant’s drinking was a major contributing factor to a long continued course of conduct on his part sufficiently unseemly and obnoxious to sorely wound the sensibilities of a sensitive and nervous woman and inflict upon her grievous mental suffering. During the two years preceding the trial her nervousness, like his drinking, has increased.

We have before us the written record with its serious conflict of words which we read without the presence of those who uttered them or the atmosphere of the trial. Such a record does not always convey a true picture of mental reactions and physical conditions. This record is very sketchy in these respects. The sensibilities of the litigants, their intelligence, viewpoints, sentiments, and health are factors in determining whether grievous mental suffering results from the conduct of one spouse toward the other. Where, as in this case, the testimony of each of the parties is consistent hut conflicts with that of the other, the personal presence of the witness gives to the trial court an advantage over the appelláte court which must make its determination from the cold record. These circumstances have led us in trials de novo in this court to say that whether the acts of one party in a divorce action have inflicted grievous mental suffering upon the other is a question of fact to be determined from all the circumstances in the case and that this court in making such a determination de novo will give appreciable weight to the findings of fact of the trial court. Swanson v. Swanson, 75 N.D. 332, 28 N.W.2d 73; Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697; Buchanan v. Buchanan, 69 N.D. 208, 285 N.W. 75; Johnson v. Johnson, 50 N.D. 696, 197 N.W. 773; Johnson v. Johnson, 46 N.D. 606, 180 N.W. 794.

The appellant emphasizes the case of McBride v. McBride, 43 N.D. 328, 174 N.W. 870, 871, the facts of which appear to be similar to those in the case at bar. The trial court found for the defendant and was sustained on appeal. Two of the judges said that there was no showing that the defendant had been guilty of intemperance or extreme cruelty. One judge merely concurred in the result, while the remaining two members of the court said:

“A careful reading of the record fails to result in a conviction that the plaintiff has sustained the burden of proof either upon the charge of cruelty or of habitual intemperance. The testimony in relation to the cruelty charges, particularly, is conflicting, and the trial judge, who had the benefit of a better opportunity to weigh the testimony of the witnesses has found against the plaintiff. This finding should stand.”

In the case before us the trial court has found for the plaintiff and against the defendant. After giving to this finding the weight to which it is entitled as a determination of fact by the trial court, we conclude- that it should not be disturbed.

The property rights and interests' of the parties were determined 'by the trial court substantially as follows: The plaintiff retained title to the residence and lots in Beulah which she inherited from her parents and now occupies; each of the parties was decreed to have a half interest in the other real estate, consisting of section 34 and lot 2 of the NWj4 of section 30 all in township 144, range 87, subject to a trust to be administered by the defendant as trustee or by another person appointed by the court if the defendant failed to qualify by July 27, 1952. The parties were decreed to be the owners of the personal property, consisting of. household goods and wearing apparel, which ’ they then possessed. The defendant was given title to all of the remainder of real and personal property not otherwise set aside to the plaintiff. The court ordered that the defendant pay the plaintiff two hundred dollars attorney’s fees and forty dollars per month for the support of Edna Raszler during her minority. The court further provided that the defendant pay the plaintiff five hundred dollars forthwith, five hundred dollars October 1, 1952, and one thousand dollars October 1, 1953. The judgment was entered August 13, 1952. This judgment, as of the time it was entered, appears to us to be just and equitable. The lapse of time, however, has rendered obsolete the provisions relative to the times of payment and the date of qualification of the trustee.

The judgment is affirmed in all things except dates of compliance above mentioned. With respect to those dates the record is remanded for a determinations of dates of compliance by the trial court, either with or without further hearing with respect thereto, as the trial court may decide.

BURKE, SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


text:
    STADICK v. OLSON’S HARDWARE.
    No. 7378.
    Supreme Court of North Dakota.
    May 7, 1954.
    Robert Vogel, Garrison, for plaintiff and respondent.
    John E. Williams, Washburn, Milton K. Higgins, Bismarck, for defendants and appellants.
   MORRIS, Chief Justice.

This is an action to recover damages for personal injuries resulting from an explosion of propane gas in plaintiff’s residence that occurred about two o’clock in the morning of September 26, 1949. The jury returned a verdict of $750 in favor of the plaintiff. The defendants made a motion for a directed verdict at the close of the case, which was denied. Later the defendants moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The sole ground for the motion was that the evidence was not sufficient to support the verdict. From an order of the district court denying this motion, the defendants appeal.

The only specification of the insufficiency of the evidence that the defendants have set forth is that

“said verdict is against the law for the reason.that there is no evidence whatsoever showing .,any negligence on the part of the defendant co-partners which was the proximate cause of the injuries to the plaintiff.”

Thus on this appeal there is presented as a challenge to the verdict of the jury but one single narrow question.

At the time of the accident the plaintiff and his wife resided in a two room cabin in Borchardt’s Addition to the Village of Underwood. The rooms were one above the other, a combined kitchen and living room downstairs, with the bedroom above. The plaintiff purchased from the defendants a stove fueled with propane gas that was installed by them on August 23, 1949. The work of installation was performed by defendants’ employee Tony Stockert. The stove had four burners on top with an oven containing one burner below. There were two pilot lights on top, each of which would light two burners. There was no pilot light in the oven. The fuel was contained in a heavy steel bottle that confined it under pressure. Connected with the bottle was a regulator valve that could be set to release the gas at the proper pressure, which in this case was six ounces per square inch. A soft type copper tube extended from the regulator to the stove through the wall of the building. This tube was connected with the stove and the regulator by brass fittings. As the gas passed through the regulator it was mixed with air to make it properly combustible in the stove. In addition to selling the stove the defendants also sold the bottle gas and performed the service of connecting the bottle with the system.

The plaintiff and his wife slept -in the bedroom upstairs. About two o’clock in the morning of September 26, 1949, the plaintiff was wakened by a noise that sounded like air escaping. It came from down in the kitchen. The plaintiff went downstairs, where the noise seemed to be coming from behind the stove. He turned on the light and looked at the stove but could see nothing wrong. He checked the burner controls and they were off. He opened the oven door and “it blew up.” The plaintiff was injured by the explosion. The building was partly wrecked, and a fire was started in a daybed and in curtains over a window. Previous to the explosion the plaintiff had on three occasions called the defendants to remedy defects in the operation of the stove or system. The first two times were because the pilot lights were not functioning properly. The third time was because the system was leaking gas outside the house between the regulator and the building. The plaintiff first smelled gas escaping from that leak and then he could hear it. He called a neighbor who also smelled and listened to it. The plaintiff turned the regulator off and called the defendants. Mr. Stockert brought up another bottle of gas and fixed the leak but after that it did not work too satisfactorily. This was about five days before the explosion.

The plaintiff’s wife was asleep when the explosion occurred and was awakened by the outcry of her husband. In the excitement she jumped to the floor below from part way up the stairs and injured her foot. She corroborates her husband as to the difficulty they had had with the stove. She had not used the stove since getting breakfast the day before the explosion took place. Before retiring the night before the explosion she checked the burner and oven valves and all were turned off.

During the afternoon following the explosion Stockert checked the equipment and did not find any of the controls turned on.

The witness Scheer came on the scene three or four minutes after the explosion. From a distance of some thirty feet he heard the sound of escaping air or gas and immediately walked over and shut off the valve at the top of the bottle. The noise stopped immediately.

. .The installation outside of the house violated four rules of the state fire marshal— the gas container was less than sixty inches from a window, there was no hood or lock to prevent tampering with the regulator, the tank was not placed upon a fireproof base, and the unit was attached directly to the house.

There is a conflict of testimony as to whether the defendants’ agent Stockert tested the system for leaks after it had been installed. He testified that he did, but this the Stadicks dispute.

On, a challenge to the sufficiency of the evidence to support the verdict this court will take the view of the evidence most favorable to the verdict, giving to plaintiff’s evidence the strongest probative force of which it will admit and will draw therefrom such inferences and conclusions favorable to the jury’s verdict as a reasonable consideration of the evidence will permit. 3 Am.Jur., Appeal and' Error, Section 887; 5 C.J.S., Appeal and Error, § 1647; Weber v. Weber, 113 Ark. 471, 169 S.W. 318, L.R.A.1915A, 67, Ann.Cas.1916C, 743; Western States Oil & Land Co. v. Helms, 143 Okl. 206, 288 P. 964, 72 A.L.R. 357.

Questions of negligence and proximate cause are always questions of fact for. the jury in an action for personal injuries, unless the evidence is such that but one conclusion can be drawn by reasonable minds. Leonard v. North Dakota Co-operative Wool Marketing Ass’n, 72 N.D. 310, 6 N.W.2d 576; Ziegler v. Ford Motor Company, 67 N.D, 286, 272 N.W. 743; Logan v. Schjeldahl, 66 N.D. 152, 262 N.W. 463; Bratvold v. Lalum, 68 N.D. 534, 282 N.W. 514; State ex rel. Brazerol v. Yellow Cab Company, 62 N.D. 733, 245 N.W. 382. But in this case the defendants argue and specify that there is no evidence whatsoever showing negligence on the part of the defendants which was the proximate cause of the injuries to the plaintiff. From the evidence that we have heretofore summarized, it appears to be undisputed that the plaintiff was injured by an explosion of propane gas emanating from the system consisting chiefly of a stove on the inside of the house and a supply tank or bottle located on the outside of the house from which fuel was supplied to, the stove through a copper tube. The entire system was sold and installed by the defendants, who also furnished the fuel supply by substituting full bottles for empty ones, as needed. When the explosion occurred the only fire in the house was in the two pilot lights on the stove. The explosion occurred when the oven was opened by the plaintiff. The conclusion is inescapable that the explosion was caused by an accumulation of free gas in or about the stove. How did the gas come to be there? It had escaped from the system in one of two ways — either a burner was left partly open by the plaintiff or his wife or the gas escaped through a defect in the system.

The plaintiff’s wife testified that she checked all of the burner valves to see that they were closed when she retired. The plaintiff testified that he looked at the stove before he opened the oven door; that there was nothing wrong with it; and that the burner valves were off. If the testimony of the Stadicks is to be believed, the only reasonable inference is that the gas that exploded escaped from a defect in the system. The evidence produced by the defendants shows that if the system was properly installed there was no danger of leakage.

This court has repeatedly held that the determination of credibility of witnesses is for the jury. Burt v. Lake Region Flying Service, 78 N.D. 928, 54 N.W.2d 339; Schnoor v. Meinecke, 77 N.D. 96, 40 N.W.2d 803; Grant v. Jacobs, 76 N.D. 1, 32 N.W.2d 881; Ignatowitch v. McLaughlin, 66 N.D. 132, 262 N.W. 352; Gunder v. Feeland, 51 N.D. 784, 200 N.W. 909; Hultberg v. Hultberg, 49 N.D. 761, 193 N.W. 605; Sheffield v. Stone, Ordean, Wells Company, 49 N.D. 142, 190 N.W. 315; Jensen v. Clausen, 34 N.D. 637, 159 N.W. 30. The syllabus of Akin v. Johnson, 28 N.D. 205, 148 N.W. 535, states:

“Questions of fact, as well as conclusions, regarding the credibility of the witness.es are primarily and fundamentally for the jury, and not for the court, to pass upon and to determine. Where no error of law has been committed by the trial' court, a verdict of the jury will not be disturbed which is supported by at least some competent testimony.”

The fact that a verdict was rendered for the plaintiff indicates that the jury found the evidence of the Stadicks to be credible. On the basis of their evidence it was logical for the jury to infer that their injuries resulted from the explosion of gas that had escaped from the system that had been improperly installed by the defendants, whose negligence in making such an installation was the proximate cause of the damages which the plaintiff suffered.

As further bearing upon the question of negligence the jury had before it the fact that the system had been recently installed by the defendants; had given trouble on previous occasions, the .last one being five days before the explosion and was a result of a gas leak in a pipe connection, although outside of the building; and that the installation on the outside did not comply with the safety regulations of the state fire marshal. The trial court denied defendants’ motion.for a judgment notwithstanding the verdict or for a new trial and, in doing so, of necessity found that there was evidence of negligence which was the proximate cause of the plaintiff’s injuries sufficient to take the case to the jury. We agree with that determination.

The order appealed from is affirmed.

BURKE, SATHRE and CRIMSON, JJ., concur.

JOHNSON,'J., did not participate. •


text:
    Marie STADICK, Plaintiff and Respondent, v. OLSON’S HARDWARE, a copartnership, W. E. Olson and Otto Olson, Defendants and Appellants.
    No. 7379.
    Supreme Court of North Dakota.
    May 7, 1954.
    Robert Vogel, Garrison, for plaintiff and respondent.
    John E. Williams, Washburn, Milton K. Higgins, Bismarck, for defendants and appellants. • ,
   MORRIS, Chief Justice.

This is an action by Marie Stadick to recover damages for personal injuries resulting from the explosión that was the basis of the recovery of a judgment by her husband, Eugene Stadick, in Stadick v. Olson’s Hardware, N.D., 64 N.W.2d 362.

The two cases were tried together and separate verdicts rendered and separate judgments entered in favor of the plaintiffs. 1 The same motion was made in each case and denied. Identical questions of fact and law are presented in these appeals. Our determination in this case is therefore governed by our decision in the case of Stadick v. Olson’s Hardware and upon authority of that opinion the order appealed from is affirmed. •

BURKE, SATHRE ■ and CRIMSON, JJ., concur.

JOHNSON, J., did not participate.


author: JOHNSON, Judge.

text:
    GALLAHER et al. v. CITY OF FARGO.
    No. 7433.
    Supreme Court of North Dakota.
    May 12, 1954.

      Quentin N. Burdick, Fargo, for appellants.
    Wattam, Vogel, Vogel, Bright, & Peterson, Fargo, for respondent.
   JOHNSON, Judge.

This is an action brought by Verner Gal-laher and others similarly situated for a declaratory judgment. It involves paving improvement district No. 2901 in the City of Fargo. The complaint asks that the court declare and determine that the plaintiffs are the majority owners of the property located in said district, and that they and' other protestants filed a sufficient protest to bar the defendant from proceeding further with the improvement of said paving district. The answer of the defendant denies the contention of the plaintiffs that the-owners of more than half of the property liable to be specially assessed protested, and' asks for a decree that the action of the defendant in the premises is in all things legal and proper and that the City Commission of the City of Fargo has the power, authority and jurisdiction to proceed with paving-improvement district No. 2901. No procedural objections were raised.

Many of the essential facts involved in this action have been agreed upon by the parties. They stipulated that the Commission of the City of Fargo has complied with the provisions of Chapter 40-22 of the North Dakota Revised Code of 1943 in the creation of special improvement district No. 2901. The parties have also-agreed that the sole issue in this action is whether or not the governing body of the-City of Fargo is barred from proceeding with the paving of improvement district No. 2901 by reason of the protest petitions-filed.

The principal controversy centers around the determination as to whether the Clarence Marsh, the Albert Vote and the Ma-belle Reppen properties should have been counted in determining the sufficiency and validity of the protest petitions. It also involves the determination of whether or not C. J. Ulgen, Frank R. Jones, Gust Hay-ertz and.Olai Williams should have been allowed to withdraw from the protest petitions before the same were finally acted upon by the city commission, and= whether •city owned property should be considered as nonprotesting property.

Mr. and Mrs. K. H. Smart have property in Block LI, Erskine’s Addition, fronting on Fifth Stréet South. This property is held by them as joint tenants. Mrs. Smart was authorized to sign a protest by her husband. They also own property in another addition but that was not within improvement district No. 2901. Block LI of Er-•skine’s Addition was considered on the basis of a full block and also on the basis of .a half block in an effort to' determine •whether a majority of the property specially liable to be assessed was involved in the protest petitions. Lots 3 to 12 in Block Mm •same addition were also considered on the same basis and the east 46 feet of Lots 1 and 2 in said block.

Mabelle Reppen signed the protest petition. She was, at the time, a joint tenant with right of survivorship with Inga Bjor-alt of Lot 24, -Block 4, Woodruff’s Addition to the City of Fargo. The deed is dated October IS, 1951. It was recorded July 23, 1952.

The resolution declaring paving necessary was passed by the City Commission ■of Fargo on the 3rd day of June, 1952, and published June 6th and June 13, 1952. It recites: “Protests against the proposed paving improvement must be in writing and must be filed with the City Auditor within thirty (30) days after the first publication of this Resolution.” Thirty days after the first publication would terminate on the 7th day of July. The deed of Inga Bjoralt and Mabelle Reppen was not of record at the time the protest petitions were filed July 3, 1952, in the office of the city' auditor, but was-of record before final action on the protest petitions.

Evelyn M. Eichelberger formerly Evelyn M. Hample entered into a contract for deed dated April 26, 1947, with Albert Vote covering certain real property within the paving improvement district. The contract for deed was recorded in the office of the Register of Deeds of Cass County July the 2nd, 1952. Evelyn M. Eichelberger did not join Albert Vote in protesting the pavement project.

Clarence R. Marsh obtained a warranty deed from the Fargo-Detroit Ice Company, a corporation, dated April 20, 1951, covering real property within the pavement improvement district. This deed was recorded July the 11th, 1952, three days after time for filing of protests had expired, but before final action on the protest petitions.

The protest petitions were placed in the hands of the city engineer for checking and report to be made at a meeting to be held July 15, 1952. He reported that based on benefits the protest petitions represented 47 per cent of the affected property. The protests were presented to the city commission on July 8, 1952, five days after they had been filed. The facts disclose that on July 15, 1952, the city commission considered the protesting petitions and declared them insufficient. This constituted the final action of the governing body of the municipality contemplated by the statute on the protest petitions. The right of withdrawal from the protest petitions is no longer available after this action is taken. The city commission did at subsequent meetings consider the protest petitions but such consideration is immaterial here.

In determining the sufficiency and the validity of the protest petitions city property was included in the área involved. It is contended by the plaintiffs that, on the basis of the evidence presented owners of a majority of the property liable to be specially assessed for the improvement involved, filed sufficient and valid protest petitions and that this did bar further proceedings . with reference to pavement improvement district No. 2901.

It is also contended by the defendant that the action of the board of city com-. missioners finding the protest petitions insufficient and invalid is conclusive. In view of our determination that the protest petitions were in fact insufficient and invalid and did not contain the names of the owners of “a majority of-the property liable to be specially assessed for the improvement”, it is unnecessary to determine that issue,

The plaintiffs and appellants have demanded a trial de novo.

The whole record indicates that the conclusion of the trial court that the protest petitions were insufficient and invalid is-sustained by the evidence.

The determination of the legal questions presented involve the interpretation of Section 40-2218 of the North Dakota Revised Code of 1943, which reads as follows :.

“If the governing' body finds the protests to contain the names of the owners of a majority of the property liable to be specially assessed for the improvement involved, the protests shall be a bar against proceeding further with such improvement. If the protests are found to be insufficient or invalid, the governing, body may cause .the improvement to be made and may contract and may levy and collect assessments therefor.” (Italics supplied.)

The construction of the above statute involves the meaning to be placed on the phrase, “a majority of the property liable to be specially assessed”. Several methods are suggested based on front footage, benefits and square footage of the area involved in the improvement district. A clue as to the meaning of the statute is perhaps to be obtained from its legislative history. The first statute referring to the powers of a city to pave a street is contained in Chapter 73 of the Laws of Dakota, 1887. Article XV, § 15 provided as follows:

“* * * and if a majority - of the. )owners of. the property, liable to be assessed therefor shall not within . .twenty , days after the expiration of such publication file with the city auditoria written protest against such improvement, then the city council shall have power to cause such improvement to be made, and to contract therefor, * * *.” (Italics supplied.)

Section 143 of Chapter 62 of the Laws of 1905 was a comprehensive statute for the reorganization and government of cities, giving them power to make certain improvements. The statute was similar to the 1887 law and insofar as pertinent here is as follows:

“ * * * and if a majority of the owners of property, liable to be specially assessed therefor, shall not, within thirty-five days after the first publication of such resolution, file with the city auditor a written protest ' against such improvement, then the city council shall have power to cause such improvement to be made * *

This became Section 2778 of the Revised Codes of North Dakota, 1905. If a majority of the owners protested, it appears that the city had no power to proceed. There was no provision for a hearing to determine the sufficiency of the protest .petitions as is now provided by Section 40-2217, NDRC 1943. Our present statute, Section 40-2218 is a revision of Section 3, Chapter 46 of the 1907 Session Laws, which amended Section 2778 of the Revised Codes of 1905, and which was-later incorporated into the Compiled Laws of 1913 as Section 3704 and reads in part as follows:

“If the owners of a majority of the property liable to be specially assessed for such proposed improvement shall not, within fifteen days after the first publication of such resolution, file with the city auditor a written protest against such improvement, then the majority of such owners shall be deemed to have consented thereto.”

Section 40t221 7, NDRC 1943, provides for a hearing on protest petitions to be held by" the governing body of the municipality at' the next meeting after the expiration of the time for filing protests to hear and determine "the sufficiency thereof. As will be noted the substantial difference in the statute was the change from “majority of the owners” to “owners of a majority of the property liable to be specially assessed”.

Majority of the property liable to be specially assessed referred to in the statute cannot mean front footage. The statute d.oes not refer to benefits. If the words of the statute are to be taken in their ordinary meaning, “a majority of the property liable to be specially, .assessed” for the improvement ■ 'must constitute more than half of the area involved in the improvement district. ■

The determination of what constitutes “a majority of the property liable to be specially assessed”, can, it seems .to ps, be best accomplished on a fair and equitable basis by determining the square footage area of the whole improvement district. It would appear that the legislature must-haye intended that by the change in the statute. Webster’s International Dictionary defines the word “majority” as “the greater of two numbers that a're regarded as parts of a whole or total; the number greater than half; more than half of any total; * * “Majority of property” must, therefore, refer to more than half of the property. In Mills v. Hallgren, 146 Iowa 215, 124 N.W. 1077, 1079, it was held, that the “majority” , is meant the greater number; more than half of the whole number or a given number, or group.

Determination of protest petitions on the basis of a benefit theory becomes an involved matter. The use of front footage as a basis for determining whether a majority of the property was included would seem to be inaccurate, and not in accord with the wording of the statute.

The case of McCreedy v. City of Fort Scott, 113 Kan. 753, 216 P. 287, involved a similar question. The statute involved, however, was more explicit than our statute in that it contained the following language, “and if a' majority of the resident owners owning '■ a majority in square feet of the lots-or real estate liable-to taxation therefor'shall not * * * file * * * their protest * ' * * then such mayor and council” may proceed. Gen.St.1915 Kan. § 1233. While our statute is different in its wording, we believe that “owners of a majority of the property liable to be specially assessed’’ means essentially the same as if it had been worded as the Kansas statute involved in the McCreedy case.

The evidence discloses that on the basis ' of • the benefit theory 47 per cent of the property of the paving district was included in the protest petitions.. On the basis of square foot area, considering only the east half of Blocks LI and Mm, Erskine’s Addition, 47.79 per cent was included in the protest petitions excluding the Reppen, Vote and Marsh properties ánd disallowing the withdrawals of Frank R. Jones,' Gust Hayertz, -Clarence Illgen and Mrs-. Clarence Illgen, and Olai Williams.,

The square footage area of paving improvement district No. 2901 is 788,394 taking in full Blocks LI and Mm of Erskine’s Addition. The total -protests on the same basis excluding the Marsh, Vote, "and Rep-pen properties is 389,542 square feet, disallowing the withdrawals of the Jones, Hayertz, Illgen and Williams properties. On that basis the best 'evidence indicates that the protest petitions amounted to 49.41 per cent of the area of the improvement district involved. If only half, of Blocks LI and Mm, except as noted, is used as a basis for computation, the total square foot area of the improvement district is 737,189 square feet. The total protests on the same basis is 352,315 square feet and involves 47.79 per cent of the area. Both these calculations include all of the city owned property which was counted as nonpro-testing property.

Was the city owned property properly counted as nonprotesting property? Section 40-2307, 1953 Supp., provides in part: “Benefited property ’belonging to counties, cities, villages, school districts, park districts, and townships, shall not be exempt from such assessment, * * It is asserted that the assessment by the city of city property'for special assessment improvements is contrary to the provisions of section 176 of the North Dakota Constitution which states: “The property of the United States and of the state, county and municipal corporations and property used exclusively for schools, religious, cemetery, charitable or other public purposes shall be exempt from taxation.” In Rolph v. City of Fargo, 1898, 7 N.D. 640, 76 N.W. 242, 245, 42 L.R.A. 646, this Court held that Article XI of the Constitution covering revenue and taxation, which includes Section 176, refers to revenue measures of the State of North Dakota and not to special assessments. In that case it was said:

“That section (section 176) declares that ‘laws shall be passed taxing by uniform rule all property according to its true value in money.’ We cite some of the decisions which hold that such a provision embraces only general taxation: Hansen v. Hammer [15] Wash. [315], 46 P. 332; [Egyptian] Levee Co. v. Hardin, 27 Mo. 495; Emery v. [San Francisco] Gas Co., 28 Cal. 345; Wallace v. Shelton, 14 La.Ann. 498; Goodrich v. [Winchester & D.] Turnpike Co., 26 Ind. 119; Edgerton v. Mayor, etc., 19 Fla. 140; Motz v. City of Detroit, 18 Mich. 495; Hines v. City of Leavenworth, 3 Kan. 180; Daily v. Swope, 47 Miss. 367; Williams v. Cammack, 27 Miss. 209; Garrett v. City of St. Louis, 25 Mo. 505; Cain v. [Davie County] Commissioners, 86 N.C. 8; Hill v. Higdon, 5 Ohio St. 243; King v. City of Portland, 2 Or. 146; Hayden v. City of Atlanta, 70 Ga. 817; Violett’s Heirs v. City of Alexandria [92] Va. [561], 23 S.E. 909 [31 L.R.A. 382]; Hilliard v. City of Asheville [118] N.C. [845], 24 S.E. 738; Dorgan v. City of Boston, 12 Allen [Mass.] 223, 237; Norfolk City v. Ellis, 26 Grat. [67 Va.] 224; Richmond & A. R. Co. v. City of Lynchburg, 81 Va. 473; City of Raleigh v. Peace [110] N.C. [32], 14 S.E. 521 [17 L.R.A. 330]. See, also, Cooley, Tax’n, pp. 626-636; 2 Dill.Mun.Corp. § 761.” Rolph v. City of Fargo, 7 N.D. 640, 652, 76 N.W. 242, 245, 42 L.R.A. 646.

This principle1 has been reaffirmed by this Court in many subsequent cases. See Webster v. City of Fargo, 9 N.D. 208, 82 N.W. 732, 56 L.R.A. 156; Id., 181 U.S. 394, 21 S.Ct. 623, 45 L.Ed. 912; In re Lipschitz, 14 N.D. 622, 95 N.W. 157; Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524, 533; Boynton v. Board of City Commissioners, 54 N.D. 795, 211 N.W. 441, 442; Becker County Sand & Gravel Co. v. Wosick, 62 N.D. 740, 245 N.W. 454, 461. Since public property may be specially assessed as provided by our statute, and such special assessment is not violative of section 176 of North Dakota Constitution the city property was properly counted as non-protesting property.

“Publicly owned property should be considered in determining whether a remonstrance has been signed by the owners of the requisite proportion of property, if it is liable to assessment * * *.” 63 C.J.S., Municipal Corporations, § 1097, p. 753. .

See Palmer v. Munro, 123 Kan. 387, 255 P. 67; Clark v. City of Weatherford, 143 Okl. 165, 288 P. 278.

Frank R. Jones, Gust Hayertz, Clarence Illgen and his wife and Olai Williams withdrew their names from the protest petitions before final action was taken thereon by the city commission. The withdrawals were not accepted and the property owned by the parties was counted as protesting property. These withdrawals were in the hands of the city commission on July 15, 1952.

Frank R. Jones directed a letter dated July 14, 1952, to the city engineer in which he said, “Please be advised that I wish to withdraw, if possible, my name from the Protest Petition for the paving of Improvement District 2901. * * * I now wish to state that I am in favor of the Project contrary to my signature on the petition.” Gust Hayertz stated, “I did not fully realize the nature of the document which I was signing and now desire that my name be stricken from the list of those signing the said protest; that I am in favor of the paving and the benefits to be derived therefrom, and respectfully request the city commission to take action regarding the validity of my signature. * * ” Clarence Illgen and his wife state, “That Mrs. Illgen signed a protest to the paving in Special Improvement District No; 2901 when she was approached to do so prior to July 3, 1952; that at the time the signature of Mrs. Illgen was acquired, it was represented to her that if the paving was put in, it would • require that their house be moved back and raised up, and that she signed said protest in the belief that this was a fact; that she has now been advised that no such requirement would be made regarding their house; that she therefore requests that her name be deleted from the list of those property owners signing the protest. That Mr. Ill-gen further states that he was never contacted with relation to the protest and would not have signed said protest. * * He further states that he is a joint owner with his wife of the above property and states that he is not in favor of the protest at the present time, and desires that this affidavit be considered by the City Commission in their meeting when the validity of the signers of the said protest is decided.” Mr. Olai Williams in withdrawing said: “That prior to July 3, 1952 I was approached to sign and did sign a protest to the paving in Special Improvement District No. 2901; that at the time of entering my signature on said protest I was under the impression that the said paving did not apply to the district or street directly touching my property; that I am in favor of paving in the said District and in front of my property; that I am personally in ill health and cannot appear before the City Commission on the 15th day of July, 1952 and therefore request by this affidavit that my name be deleted from those protesting against the paving in the above designated district.” Did these property owners within the improvement district have the right to withdraw their names from the protest petitions before final action thereon?

“Petitioners may be allowed to withdraw their consent or signatures at any time before the municipal authorities have acted on the petition by notice to ■ the proper officers, and , this even though the petition is thereby rendered insufficient for want of the requisite number of signers.” McQuillin, Municipal Corporations, Vol. 13, 3rd ed., Sec. 37.50, p. 184.

Petitioners may withdraw their names from the petition prior to action thereon by the proper municipal authorities but not af-terwards. McQueen v. City of Moscow, 28 Idaho 146, 152 P. 799, 802; Wilkinson v. City of Lincoln, 105 Neb. 752, 181 N.W. 861; Territory v. City of Roswell, 16 N.M. 340, 117 P. 846, 35 L.R.A.,N.S., 1113 and note. While the precise question involved in this case has apparently not been passed upon in this state, this Court has heretofore had occasion to pass upon questions much like that now presented for solution. See Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.,N.S., 372; Rosten v. Board of Education, 43 N.D. 46, 173 N.W. 461; State ex rel. Knox v. Stevens, 48 N.D. 47, 183 N.W. 109; Coghlan v. Cuskelly, 62 N.D. 275, 244 N.W. 39, 41. See, also, in this connection Uhl v. Collins, 217 Cal. 1, 17 P. 2d 99, 85 A.L.R. 1370, and note. See, also, Chester v. Einarson, 76 N.D. 205, 34 N.W. 2d 418, 35 N.W.2d 137. In the case of Territory ex rel. Stockard v. City of Roswell, supra, the Court said:

“We think the petitioners had the right to withdraw, at least up to the time when the mayor and council acted on the report of the .committee. * * Some of the cases which are most analogous to the one at bar, and which we think best sustain the view we adopt, are: People ex rel. Irwin v. Sawyer, 52 N.Y. 296; Dutten v. [Village of] Hanover, 42 Ohio St. 215; LaLonde v. [Board of Sup’rs of] Barron County, 80 Wis. 380, 49 N.W. 960; Davis v. Henderson, 127 Ky. 13, 104 S.W. 1009; Littell v. [Board of Sup’rs of] Vermilion County, 198 Ill. 205, 65 N.E. 78.
“In the last-named case, the court said: ‘Each petitioner acts upon his own responsibility, and if he should change his mind on th'e question whether a new township would better serve the convenience of the inhabitants residing therein, or if he should be induced to sign it under a misapprehension or through undue influence, he ought to have the right'to correct his mistake, if he does so before the rights of others have attached by the final action on the part of the board. * * ’ ” 16 N.M. 340, 117 P. 848, 35 L.R.A., N.S., at page 1119.

The case of Hoffman v. Nelson, 1 Neb., Unoff., 215, 95 N.W. 347, 349, discusses the question of the right of withdrawal before final action by the governing officials is taken. It states:

“We do not feel justified, in a purely statutory matter, such as this, in placing any restriction upon the free action of a citizen which the law has not placed there, and which no consideration of good morals or even propriety seems to require. We do not discover anything improper in a citizen, who thinks he is now better advised, changing his mind a second time as to the expediency of having such an election.” 1 Neb., Unoff., at page 221, 95 N.W. at page 349.

This reasoning appeals to us. Here four parties indicated their wish to withdraw on the basis of change of mind, misapprehension or misunderstanding. The filing of protest petitions does not automatically constitute a bar to the establishment of the improvement district. The protest petitions are to be heard at the next regular meeting of the governing body after the expiration of the time for filing the same. It shall then determine the sufficiency of the protest petitions. Under the authority of the statute the right of the governing body to proceed with the improvement must be based on the insufficiency or invalidity of the protest petitions. NDRC 1943, 40-2218. See 63 C.J.S., Municipal Corporations, § 1366, p. 1121. After the hearing and determination of the sufficiency or insufficiency of the protesting petitions there is no right of withdrawal. It'is only if the governing body finds the protest to contain the names of a majority of the property liable to be specially assessed for the improvement involved, that the protest shall be a bar against proceeding further with such improvement. This necessarily is not determined until the meeting of the governing body held for the purpose of checking the sufficiency of the protest petitions. See, also, State ex rel. Andrews v. Boyden, 1906, 21 S.D. 6, 108 N.W. 897, 15 Ann.Cas. 1122. For an extensive consideration of the right of signers of petition or remonstrance to withdraw therefrom or reject withdrawal see 126 A.L.R. 1032.

We have no statute dealing with a right of withdrawal but it seems that since property owners have the right to protest the establishment of an improvement district and a hearing is provided they should have the .correlative right of withdrawing from the protest petitions if that withdrawal comes before final action is taken thereon. The withdrawals involved here were submitted before final action by the city commission. The withdrawals were effective, and the property owned by the withdrawing parties should have been considered as nonprotesting property. The Hayertz property comprised 5,000 square feet; the Williams, 10,600 square feet; the Jones, 9,-300.01 square feet; and the Illgen, 5,720 square feet. The withdrawal of these parties from the protesting petitions would further augment the majority of the nonpro-testing property and reduce the percentage of the protesting property.

The Smart property consisting of Lots 10, 11 and 12, Block LI, Erskine’s Addition was considered on the basis of 75 feet by 93.1 feet instead of 75 feet by 186.2 feet. The reason assigned for considering it on that basis was the fact that the west side of Blocks LI and Mm will not be assessed for benefits. The west side of these blocks had already been assessed for street improvements involved in another improvement district. The west half of these two blocks was property that was not especially benefited. It is the duty of the special assessment commission to personally inspect any and all lots and parcels of land which may be subject to special assessments and to determine from such inspection the particular lots and parcels of land which, in the opinion of the commission, will be especially benefited by the construction of the work for which the assessment is to be made. The statute also imposes upon the assessment commission the duty to determine the amount in which each of the lots and parcels of land will be especially benefited by the construction.of the work for which the special assessment is to be made and shall assess each of such lots or parcels of land such sum, not exceeding the benefits, as shall be necessary to pay its just proportion of the total cost of such work. Section 40-2307, 1953 Supp.

Sections 40-2307, 1953 Supp., and 40-2218, NDRC 1943, are i'n harmony. The latter section refers to, “the owners of property liable to be specially assessed” which is the property that will be especially benefited. McKenzie v. City of Mandan, 27 N.D. 546, 147 N.W. 808; Minneapolis, St. P. & S. S. M. R. Co. v. City of Minot, 51 N.D. 313, 199 N.W. 875, 37 A.L.R. 211. It is, therefore, within the reasonable discretion of the governing body to consider only the east half of Blocks LI and Mm, Erskine’s Addition, since that property in these blocks of Erskine’s Addition is the only property especially benefited. It is the governing-body of the municipality that ultimately confirms the assessment list. NDRC 1943, 40-2316.

The case of Reed v. City of Langdon, 78 N.D. 991, 54 N.W.2d 148, holds that the assessment of property within a water and sewer improvement district is discretionary with the special assessment commission and that such decision was final in absence of appeal therefrom. NDRC 1943, 40-2314. At page 151 of 54 N.W.2d the court with reference to determination of boundaries said:

“Generally speaking, a city council . or commission is the sole judge of. the necessity of sewers and. water mains, and its determination as. to the boundaries of the district and the property included therein is generally conclusive. Limitations on this rule are recognized, however, where fraud, bad faith, arbitrary action, or abuse of discretion are evident, in either of which the courts may review such determinations. 63. C.J.S., Municipal. Corporations, § 1367, p. 1122; 44 C. J., Municipal Corporations, § 2971, p. 574; Robertson Lumber Co. v. City of Grand Forks, 27 N.D. 556, 147. N.W. 249.”

In Robertson Lumber Co. v. City of Grand Forks, cited above, it was said:

“Neither before the commission nor before the city council did the petitioner make any point as to the invalidity of the ordinances, or any of them, or as to th,e fact of their indefiniteness in regard to the boundaries of the district, or as to the manner of the passage of the ordinance in question, nor that its property was not included in each and all of the ordinances.” 147 N.W. at page 254.

In the case at bar there is no showing of fraud, bad faith, or arbitrary action on the part of the city commission. The Smart property comprised an area of 13,951 square feet, if the full length of the lots is used, and we do not believe that the determination of the boundaries of the district on the basis of the east half of Blocks LI and Mm, except as noted, Erskine’s Addition, since that is the property specially assessed, would constitute arbitrary action or abuse of discretion by the city commission. In fact, it would be beneficial not only to Mr. and Mrs. Smart but other owners in these two blocks to consider only the east half as the amount of the benefits would necessarily be less.

In discussing whether or not the city has the power to consider only the east half of Blocks LI and Mm as being especially benefited the trial court made the following statement: “If the city has such powers, then there is no question but what the protestants are in the minority. ■ And even giving the protestants the benefit of the protesting petitioners that were disallowed, the protestant’s petition would not be sufficient.” We believe it was discretionary with the commission to consider the east half of Blocks LI and Mm as being especially benefited. The determination of the boundaries of the district to be specially ■ assessed is within- the discretion of the city commission.

The next question involves the Reppen, Marsh and Vote properties. Assuming without deciding that the word “owners” as used in Section 40-2218, NDRC 1943, did include these properties, and that the protests of these parties should, have been allowed, the disallowance thereof would not change the result in this case. The Reppen property involved 7,500 square feet; the Marsh property, 7,000 square feet; and the Vote property, 5,500 square feet; or a total of 20,000 square feet. The rejection of the protests of these properties is more than offset by the withdrawals of the Jones, Hayertz, Illgen and Williams properties which amounts to 30,062.01 square feet and which should have been considered as non-protesting property.

Close scrutiny of the entire record fails to establish that the owners of a majority of the property liable to be specially assessed for the improvement were involved in the protest petitions, and the city commission and the trial court properly found them insufficient and invalid. The plaintiffs have failed to' sustain the burden of proof. It was incumbent upon them to do so since the trial of the sufficiency of the protests became the sole issue in the case at bar. Jones v. City of Hankinson, 48 N.D. 618, 186 N.W. 276.

The judgment of the district court is affirmed.

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