CITY OF BROOKINGS, Respondent v. ROBERTS, Appellant
(File No. 11391)
Supreme Court of South Dakota
February 21, 1975
226 N.W. 2d 380
COLER, Justice.
“The 2-714(2) formula (difference between the value of goods as accepted and the value of goods as warranted) is essentially the same as the pre-Code formula. A useful objective measurement of the difference in value as is and as warranted is the cost of repair. Thus, if a buyer accepts a truck with a defective radiator, a good measure of the difference between the value of the truck as warranted and its value as delivered is the price of a new radiator less the value of the faulty one.” J. White and R. Summers, supra, Sec. 10-2, p. 308. (footnote omitted)
The verdict is clearly excessive. Plaintiff offered no probative evidence of value other than to give his opinion that the car was worth only $500 to him. There was competent evidence introduced by defendant to show that the entire transmission could have been replaced for approximately $400. For all of plaintiffs complaining about the motor, the mechanic who worked on the car at Willrodt Motors in Chamberlain testified that the car ran well after he had worked on it in February of 1972. One of the service men at Ryan Motors in Sioux Falls testified that after the manifold bolts had been tightened the engine “was quiet and run like a clock.”
I would reverse and remand for a new trial on the issue of damages.
Alan F. Glover and Ronald C. Aho, Brookings, for plaintiff-respondent.
COLER, Justice.
Complaints were filed against the defendant charging him with violating provisions of Sections 5-8 and 25-3 of Ordinance 715 of the City of Brookings, being charges, respectively, of public intoxication and resisting arrest.
Defendant initially appeared in district county court for the seventh district without an attorney on July 9, 1973, at which time he was advised of his constitutional rights without mention of his right or absence of right to a jury trial. At the time, he entered a plea of not guilty.
On appeal, defendant‘s principal ground for reversal was his assertion that the court erred when it denied defendant‘s request for a jury trial. Respondent city while denying the existence of a right to jury trial insists he waived any right by failure to make timely demand therefor. These points we consider for the disposition of this case as they obviously troubled the trial court when, after the trial, the judge stated, “I wish I would have given you the privilege of trying it to a jury, but you‘re not entitled to it.”
We reverse upon concluding the defendant should have been afforded a jury trial as was his privilege and the demand was timely made. While the court erred it cannot be faulted given the state of confusion occasioned by our statutory and case law at this time. Decisions of this court construing the right to a jury trial for violation of municipal ordinances under
“The only effect of the clause, ‘and shall extend to all cases at law without regard to the amount in controversy,’ found in the Constitution of this state, was to extend the constitutional privilege of trial by jury to those cases of small amount not within the seventh amendment of the federal Constitution, and some state Constitutions; otherwise the constitutional provision of this state ‘that trial by jury shall remain inviolate’ is substantially the same as in many other states, and applies to law cases triable by jury as a matter of right as theretofore existed in the territory of Dakota prior to the going into effect of the Constitution of this state. The ‘law cases’ comprehended within this clause of our Constitution applied to all those cases which at common law or by the statute of the territory of Dakota were triable by a jury on the law side of the court.” (emphasis supplied) 84 S.D. at 658, 176 N.W.2d at 50.
While we concluded in City of Brookings v. Thomsen, 84 S.D. at 658, 176 N.W.2d at 50, based on Nebraska decisions, that “at the time of adoption of our constitution * * * defendant [did not] have the right to trial by jury for violations of municipal ordinances and other petty offenses, it follows that he does not now have such a constitutional guaranty“, that conclusion is unwarranted. Reviewing the briefs on file in Belatti v. Pierce and City of Brookings v. Thomsen, and in this case, we observe that they are devoid of any citation to or history of territorial law on this subject.
Our own research of the Dakota territorial laws preceding the adoption of our State Constitution brings about a result to the contrary. Laws of Dakota, 1874-75, Ch. X, governing the
The provisions of the Compiled Laws of 1887 as modified by the Session Laws of 1890 were carried forward in Rev.Pol.Code 1903, § 1280, and Session Laws 1913, Ch. 119, § 99, but for some reason did not find their way into the Revised Code of 1919. The omission of these provisions by the revisors of the 1919 code cannot deny a right declared inviolate under Shaw et al. v. Shaw, supra. Had we but one court having exclusive jurisdiction over violations of municipal ordinances the Code Revision Commission of 1919 could have followed the lead of our sister state, North Dakota.3 As we had in this state both municipal courts and city justices or police magistrates clothed with the exclusive jurisdiction where they existed, a single statement of the right would not have sufficed. In an attempt to assure a jury trial the commission created RC 1919, § 6309 now
Respondent claims that having failed to demand a jury trial at the time he initially entered his plea of not guilty,
We do not here need decide whether a twelve man jury must be afforded under the provision of
The judgment is reversed.
WINANS and WOLLMAN, JJ., concur.
DUNN, Chief Justice (concurring specially).
I concur that the case should be reversed and a jury trial granted. I would prefer to do so on the reasoning of Baker v. City of Fairbanks, 1970, Alaska, 471 P.2d 386, in which the Alaska Supreme Court held that: “In extending the right to jury trial, we define the category of ‘criminal’ prosecutions as including any offense a direct penalty for which may be incarceration in a jail or penal institution.” The Baker opinion was based on a provision in the Alaska Constitution similar to § 7, Article IV of our Constitution, and dealt directly with the violation of a municipal ordinance.
I realize that this view is not in accord with South Dakota case law and, further, that it is not dictated by the decisions of the United States Supreme Court interpreting the Fourteenth Amendment; however, I have long harbored the opinion that there was nothing “quasi” about the cells in a city jail, and that they deprive a person of his liberty as effectively as any other prison where a person has been placed as a result of a “criminal” offense.
DOYLE, Justice (concurring specially).
In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, the court held that a defendant is entitled to counsel (paid for by the state if necessary) in any case in which a jail sentence could be imposed. In my judgment the right to a jury trial in a criminal case is more fundamental to our system of justice than the right to court-appointed counsel. The task of determining the line between a “petty” and “serious” offense is nebulous, to say the least. I conclude that a defendant is entitled to a trial by jury in all cases which could involve the imposition of a jail sentence. See concurring opinion of Justices Black and Douglas in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437.