Andree v. Andree
291 N.W.2d 788
S.D.
1980
Check Treatment

*1 788 this We hold that the verdict in for defend- a verdict the

will return “Yes”, A be verdict should you it case is sustainable. you If answer ant. not set aside unless sustained and should be with a second issue: must then deal is so irreconcilably it is inconsistent or negligence proximate a 2. such Was vague meaning its The that is uncertain. of Dezso Csoka? cause of the death light jury may be in verdict of construed “No”, you If answer that by made the pleadings, of the the issues de- will a verdict for the you return evidence, jury NEDA and the instructions. “Yes”, you it you If answer fendant. 344, Co., Jenkins, Ga.App. Inc. 137 Const. v. must then deal with third issue: (1976). presumed It is that 223 S.E.2d pecuniary has the death of 3. What loss jury by court’s understands and abides the caused his widow and Dezso Csoka Stark, 219 N.W.2d instructions. Giltner children? (Iowa 1974). Even if the verdict were general Two forms submitted verdict constructions, susceptible of the con two jury. jury general the to the The returned be that the verdict must struction sustains At the form the verdict defendant. 573, Jewell, applied. Baker v. 77 S.D. verdict, jury of the the added the bottom N.W.2d 299 following statement: accept Accordingly, we defend We, to the jury the would like to submit verdict, e., i. that ant’s of the construction favor although that we decided in Court hospital that was jury the determined the defendant, strongly we feel that the negligent proper supervi in providing not defendant, Valley Hospital, the Sioux sion, negligence was the that this not but su- negligent failing properly in was death. proximate cause of Dezso Csoka’s pervise emergency the room. the language by jury The included the jury this verdict is Plaintiff contends general verdict is not in conflict with ambiguous possible so it is not to deter- disregarded may as valid verdict and be meaning. mine its Zumwalt, Keating v. 91 Cal. extraneous. of the verdict’s We reach issue 845, App.2d 206 P.2d ambiguity despite defendant’s contention judgment The is affirmed. objec plaintiff’s any make failure to tion returned consti when verdict was All the Justices concur. of this issue. Defendant tutes waiver 15-14-30, rests its contention on SDCL which states: announced, if it be the verdict is

When covering or insufficient in not

informal submitted, may it be corrected the issue court, jury under advice Harry ANDREE, Appellant, Plaintiff jury may again or the be sent out. Mueller, As Mueller v. 88 S.D. we stated in however, (1974), Roth, ANDREE, Adolph Laura LaVerna C. only “where a verdict is applies this statute Kost, Kost, Roth, Jerry J. Sharon A. cor- irregular easily can be on its face and Mogck, Appel Defendants and Clarence is omit- as in the case where interest rected lees. sign ver- ted or the foreman fails No. 12883. in the ver- alleged dict.” The deficiencies Dakota. Supreme Court of South merely dict before us are not mechani- now cal, rather, they go to the heart of Argued Feb. 1980.

jury’s findings. there- proper April Decided trial, plaintiff’s fore new was for a re- object failure to when the verdict addressing from prevent

turned does not us verdict. ambiguity issue *2 Law Of-

John P. Blackburn of Blackburn fices, Yankton, appellant; plaintiff of Blackburn Law Of- Michael D. Stevens fices, Yankton, brief. on the Parkston, Mahan, Lloyd J. for defendants appellees Laura C. Andree and Clar- Mogck. ence Olivet, Jay Tapken, H. for defendants Roth, Roth, Adolph LaVerna (argued A. Jerry J. and Sharon Kost Kost appellees). the cause for all defendants WUEST, Judge. Circuit against his Appellant brought this action Andree, sister, and others wherein Laura C. signed a deed he claims that his mother estate to his conveying 240 acres of real when his (his only sibling) at a time sister incompetent. He claims legally mother In- estate, cretion will not be disturbed. Union proceeds or the of the real one-half Schonebaum, thereof, joined the other defendants vestment Co. v. had sold the land to them. A to amend his sister 175 N.W. 357 because May 26,1966. The action is dated sound discretion of deed addressed We af- March was commenced not be disturbed on trial court and will *3 except firm. case of abuse appeal, in a clear 280, v. 71 23 Raney Riedy, S.D. discretion. Mogck, represent- and Appellees Andree no Where there is N.W.2d 809 Mahan, Lloyd answered by Attorney ed J. or of discre- showing prejudice of an abuse Appellees Roth general denial. by way of tion, the court will be the decision of trial allegations the generally and denied Kost Muchow, 80, upheld. Behringer v. 72 S.D. bona defense of alleged and the affirmative (1947). Permitting denying 30 5 or value, good for and purchasers fide in faith largely is amendments within the discretion against appellee in cross-claimed addition Dahl, of the trial court. Zahrowski they any damages for Laura C. Andree (1960); S.D. N.W.2d 802 Weaver set trial on might The case was for sustain. Bauer, N.W.2d 361 May 8, is unclear when 1979. The record event, any on or this was selected. In date prejudice appellant, to We find no Mr. Mahan contacted April about by trial any nor abuse of discretion the inquired and whether appellant counsel for court. objected to of the or not he amendment granted, trial After the amendment was Mogck and to of defendants Andree answer court rendered its decision was held and the laches, of of statute include the defenses upon 15- in of based SDCL favor frauds, limitations, waiv- of and the statute 3-15, provides as follows: which counsel had some reserva- Appellant’s er. possession days Mahan the tions, Every person later Mr. in actual so several amended and copy proposed of or under claim mailed him lands tenements Thereafter, faith, stipulation good a written answer. color title made in and of whereby was entered into counsel ten successive shall have continued for heard on the date to amend could be also years possession, in and shall such surprise, claim of of trial. There was no paid legal- have all taxes during said time any request tenements, for a continu- nor was there ly on such lands or assessed however, alleg- appeal, appellant ance. legal On adjudged held to be the shall be and permitting the amendment a es in error or to the owner of said lands tenements year original answer was filed. after the purport his according extent and to the of paper persons holding under title. All pleadings of is on amendment The rule devise, or possession by purchase, such that 15-6-15(a). provides It found in SDCL years ten shall have descent before said freely given when be amendments should expired, have and who shall continued 15-6-15(b) pro- justice requires. so SDCL of as payment such taxes possession to the to conform vides for amendments said of complete so as to term aforesaid evidence, the court shall provides possession payment ten of years such freely allow to be amended so pleadings taxes, entitled to the benefit of shall be prejudice long do not as the amendments section. this party. the trial court The rule also allows objecting par- grant (1) to to an continuance this include requirements statute faith, ty to under amend- good meet evidence admitted in color of title made claim and pleadings during ed trial. (2) possession, and years ten successive in (3) legally of all taxes assessed. payment

Trial are vested with broad courts Appellant does not contest amending plead in discretion the matter of trial, appellee requirements met the ings, fact that during both before statute, including possession under result this prejudice when no has been shown to title, strongly he amendment, but dis- claim and color of from an the trial court’s property appellee. to It was also support not the evidence does argues that testimony, agreed, according under to her possession was conclusion good get in 80 acres and that appellant of title “made was to and color claim appellee acres, get court found that but because appellee was to faith.” Since faith, good the issue property judgments against appellant held had some him erroneous, clearly finding is this whether all of the land would be it was decided that good 15-6-52(a). constitutes What Appellee SDCL went to a conveyed appellee. trier of fact. question for the faith is a deed, prepared May and on lawyer, who Company, Armstrong v. Cities Service Gas 26, 1966, purportedly executed the mother (1972). The 502 P.2d 672 210 Kan. According appellee’s testimo- the deed. appellate court is not gave pen. Ap- mother a ny, appellant his find- have made the same whether it would under the docu- pellee placed then a book did, whether on the ings the trial court help his moth- appellant ment and watched *4 and it is left with a definite entire evidence the “X” on the deed. The trial er make com- has been firm conviction that a mistake questions: these appellee court asked Yadco, County, 89 Inc. v. Yankton mitted. Well, I right. THE All have COURT: (1975); In re 237 N.W.2d S.D. At the time that this deed several. 282, 181 Hobelsberger, 85 of Estate mother, type signed by your what was was she in? of condition presumed; one faith is never Bad Well, me and after the A. she talked to good faith of the occu challenges who signed everything and and deed was type of case must overcome pant in this supposed to do. what I was she told me good faith. 2 C.J.S. Ad presumption farm; stay me not to on She told 219; Espa Thurmond v. verse Possession § farm; town, she go says. to sell the lin, 171 P.2d N.M. work. your did share of You mind, we principles in With these this, you me ask at THE COURT: Let determine whether review the evidence to what signed, was the time the deed clearly errone decision was the trial court’s be, appear it your testimony did would lawsuits, evidence is in most ous. As she was understood what you to she could have conflicting and the trial court doing? way. either decided A. Yes. only were the Appellant and his sister and ac- After the deed was witnessed Andree, who owned the children of Bertha Ap- it recorded. knowledged, appellant had question, located in Hutchinson 240 acres in Appellee tes- recording. pellee paid for the Appellee never County, Dakota. South some two August tified that on and married, parents with her lived death, she re- mother’s months after her fifty-four until she was worked on the farm demanding appellant letter from ceived a mother, the surviv- age, when her years of acres; immediately went to a his 80 she 4,1966. Appellant ing parent, died on June conveying deed lawyer, prepared the farm and mar- away moved from had days appel- later appellant. Four acres to problems appellant had Although ried. Appel- her. the 80 acres to reconveyed lant money they gave him parents, with his appellant. to Since reconveyed lee 80 acres According appellee, to from time to time. paid rented out and appellee time has only home when he needed appellant came Appellant con- the 160 acres. the taxes on parents that her said money. testified She January his wife on veyed 80 acres to land 160 acres of that she was to receive acres. appellant was to receive 80 and that evidence, his during According appellant’s to testimony, According appellee’s her last illness during in the mother was irrational hospitalization her mother’s final “X” was when the was unconscious by her and 1966 she was directed spring for the trial It was conveying placed on the deed. prepared get a deed mother judge weigh evidence and to court to Dakota, The trial credibility of the witnesses. STATE of South Plaintiff appellee and her wit- Appellee,

court to believe chose conflicting testimo- In view of the nesses. appellant ny the fact that in view of WIKLE, Marty Lee Defendant faith, we proving had bad the burden Appellant. trial court’s decision say cannot Dakota, clearly erroneous. CITY, OF RAPID South CITY Appellee, Plaintiff and decision, unnecessary it In of our view the other are to decide whether good for val- purchasers faith

bona fide WIKLE, Marty Defendant Lee ue. Appellant. af- trial court is judgment No. 12838. firmed. Supreme Court of Dakota. South Appellant Jan. on Brief of Submitted WOLLMAN, J., and HENDERSON C. 28, 1980. FOSHEIM, JJ., concur. April 30, 1980. Decided J., DUNN, dissents. WUEST, Judge, sitting for MOR- Circuit

GAN, J., disqualified.

DUNN, (dissenting). Justice

I dissent. complete agreement

I am in accomplished the intent of

deed in this case equitable result was

the mother and that an I am

reached. also convinced re- equally were

plaintiff and defendant sig-

sponsible for the manner which this

nature was obtained. convinced, however, firmly

I am more court should never countenance a a instrument one

execution of written

party holding pen limp in the hand party pushes other

dying woman while the X for up

her and down make an arm com-

signature This is further on deed! notary’s

pounded in the certification

signature by person admittedly in the

hospital “may may or not” have to witness this bizarre

been in room

event.