Conrad v. Suhr

matters in these decision of our Because the ob- unnecessary to consider

we find for the first Dotzenrod raised

jections concerning this court in his brief

time not to judge ordered the district

ballots reasons and various counted been con- should have contends

Dotzenrod valid ballots.

sidered

CONCLUSION and 16-12-04 of Sections provisions N.D.C.C., held to be are

16-13-01(1), counted ballots to absent-voter applicable N.D.C.C., 16-18-14, to Section

pursuant case and for the of this

and, the facts under stated, challenged bal- above

reasons valid. held to be

lots petition Morgan’s requested

The relief

is denied. J., PAULSON,

ERICKSTAD, J., and C. BARKEN, A. B. HEEN and C. DOUGLAS Judges, concur.

District BARKEN, Judges, District HEEN SAND, JJ., dis-

sitting for PEDERSON

qualified. on

PAULSON, J., participating

briefs. Plaintiff, CONRAD, J.

William Compa- SUHR, Motor d/b/a Suhr

Curtis Appellant, ny, Defendant Ltd., Foreign Manufacturing, Canada,

Corporation Defendant Appellee. No. 9373-A.

Civ. Dakota. North

Supreme Court of

Jan.

from the main trial to be determined later by the court. went jury case to the on the strict

liability only count the jury and rendered a assessing verdict damages in the amount of $300,000. It percent attributed 50 of the cause of the damages to Versatile and 50 percent of the damages cause of the to jury Conrad. The attributed none of the Streed, Grinnell, Cahill, Gunhus, Jeffries cause of the Consequent- Suhr. Moorhead, Minn., and Harold A. Klinger, & ly, judgment was subsequently entered dis- Fargo, ap- for defendant and Halgrimson, missing complaint against Suhr. Cahill, pellee; argued by James D. Moor- appeal This precipitated by was the trial head, Minn. arising court’s decision out of the motion Knutson, Brantner, Kelly, Weir & Vogel, by directing an order Versa- Fargo, appellant; for defendant and Bye, pay tile to all costs and attorneys’ fees Vogel, Fargo. Mart R. argued by by or on behalf of Suhr for his defense, which motion the trial court de- ERICKSTAD, Justice. Chief pertinent nied. The part of the motion in this case is whether or The basic issue reads: ordering not the trial court erred in and grounds “The for this motion are that judgment in favor of the defend- entering as a matter of law the defendant Suhr is ant, Manufacturing Company, de- entitled to full from Versatile nying the defendant Curtis motion Suhr’s for such costs and fees be- costs and cause of action cause: expenses conjunction and with Suhr’s (1) potential Suhr’s liability was de- damages brought defense to an action for rived vicariously from the misconduct Conrad, injuries by arising J. out of William manufacture, Versatile in the assem- operating incurred while Conrad bly and sale of a machine found grain auger manufactured Versatile and jury to have been in a defective condi- We affirm. sold Suhr. tion unreasonably dangerous to the complaint, Conrad asserted In his user.” strictly I that the defendants were Count concluding part In the of the trial court’s tort, II liable in in Count that the defend- opinion memorandum denying Suhr’s mo- express implied both ants had breached tion for indemnification for attorneys’ fees liable, accordingly and were warranties costs, the trial court stressed the view design, III that in the manufac- in Count Suhr did not defend on the basis ture, inspection, testing, servicing, advertis- liability, of a derivative but that Suhr de- failing ing, auger, and sale of the and in fended in his own behalf because of his own instruct, guard, prevent or warn so as to alleged liability. The court said: it, using working near injury persons “The trial of the action was commenced negligent, were their the defendants January on testimony 1977. The proximate was a cause of his February concluded on 1977. The de- injuries accordingly were lia- and that counsel, fendant through his active- ble. ly participated and introduced twenty of separately an- Each of defendants the sixty-eight exhibits in the case. Af- complaint, alleging swered the that Conrad completion ter of the testimony at 2:26 contributorily negligent and that he February plaintiff P.M. on mo- risk, assumed the and each of the defend- tion withdrew the counts complaint of his against the other for in- ants cross-claimed as to and breach The cross-claims were severed and submitted demnity. jury his case to the on the to both facturer could hold the liability responsible dealer of strict issue one defendants.1 Mo- for the the jury the Court denied accident After probably responsibility find the dealer’s each of the plaintiff tions zero; verdicts, and that counsel for Versatile in summa- for directed defendants his summation to the said that parties. all jury were made to the tions injuries apportioned cause of the should be stated, the verdict “As hereinbefore percent percent to Conrad and 10 auger was in a that the jury found the Versatile. it was delivered condition when defective Versatile to the dealer defendant Versatile by responds by asserting the that it is Suhr; the machine assembled complaint that Suhr immaterial that the charges the that it was defective jointly found the transcript and the defendants that if examined, The plaintiff. it to the it will disclose that when he sold Suhr de- verdict, defect, proxi- charges the the was the fended of said conceding he injuries, specifically could have plaintiff’s the cause of mate auger the in assembled a manner different the liability only as to defendant attached from the manner which it was sent to Versatile. him that the so set-screw would have been record, opinion is the “From by covered the shield. Suhr en- the defendant the Court purpose in the trial for gaged So that we better understand the any plain- claim of the defending against facts of this we draw the state- he, was the said defendant tiff that ment of the case submitted Suhr in his prod- the law of a seller under brief. liable as It was not a case liability. strict

ucts or injuries This lawsuit involves sustained only a derivative liabili- had where Suhr resulting Conrad from the defective con- sold it auger ty, assembled Suhr Versatile, grain auger. dition of a the man- in a defective condition. plaintiff to the grain auger, ufacturer of the sold it to the of, interest not defend in the did Suhr dealer, Suhr, who in turn sold it to Conrad. upon Versa- of or in reliance the direction injured jacket when his Conrad sleeve in his own behalf because but rather tile protruded caught by set-screw liability as a seller. alleged his own beyond above the drive shaft and a fixed his merely because of did not defend Suhr shield. prevent the miscon- to discover or failure E, design drawing, Versatile’s exhibit rather in his own Versatile but duct of provided guarded for the set-screw to be nonliability in his as- to establish behalf top by the fixed shield. The of the defended sembly of the machine. Suhr accident, auger directly involved in the con- plaintiff which allegations of the as to shield, brackets, sisting bearings, independent encompassed separate collars, set-screw, locking and shaft with part. his charges wrongful acts on factory was assembled at the with the set- foregoing reasons the above and “For shield, screw protruding beyond fixed of the defendant motion and claim bearings place pre-de- locked into at a his co-defendant as to Suhr termined distance from the end of the Versatile is denied.” shaft, and, paint-dipped then with the other sections, shipped two to Versatile’s dealers doubt, to the trial court’s response, no for final connection. views, no time asserts that he was at independently with charged separately or design drawing was not furnished to complaint; that counsel wrong-doing the dealer nor was the dealer instructed shield, argument at the trial the manufacturer to reassemble the closing for Conrad brackets, collars, bearings, locking and set- manu- way there was no said dealing and it was dismissed plaintiff abandoned Count II with breach 1. The Pre-Trial, January Order on dated screw, change generally their relative locations It held that where the way factory assembly. from the act any of the defendant has in- plaintiff volved the litigation with oth- 6,000 Approximately augers of the model placed ers or him in such relation with manufac- involved in this lawsuit had been necessary others as makes it to incur ex- up the time tured and sold pense protect interest, such costs The manufacturer’s of the Conrad sale. expenses, including manual, D, ac- assembly instruction exhibit should be legal treated conse- companied auger. nothing each There was quences of the original wrongful act and the manual to instruct the dealer may be recovered as damages.” 22 Am. collars, paint, loosen the remove the drive Damages Jur.2d § hammer, with a and move the the shaft Suhr refers us to our recent case of Her position into a set-screw below shield. man v. Irrigation General view, Continuing with the read- Suhr’s (N.D.1976), applied wherein we eq justment taking paint would have involved uitable doctrine indemnity, but which shaft, loosening off the the collars at both case the attorneys’ issue of fees was not ends, forcing through, possi- the shaft involved. bly ruining permitting the seal and dirt to The mere fact that we said in Herman get bearings, damage into bear- that party one was entitled to indemnifica- ings themselves. He further contends that against tion in full another does not settle end, pulley the shaft toward the an driving the issue of attorneys’ fees and costs in this quarter, inch and a probably case. misalignment caused a and forced the pul- ley up against pulley shield. Herman, Other than which we have noted does not reach the issue of attorneys’ fees, verdict, jury, special The its deter- Suhr refers us to and relies Koch v. auger that the mined was defective when it Seattle, City of Wash.App. 580, 513 P.2d control, left both Versatile’s and Suhr’s (1973), appellate intermediate court evenly responsibility it divided between decision. Conrad and Versatile. Koch, the court quoted from Vincent defendant, a Suhr contends where v. Parkland Light Co., & Power 5 Wash. wrongful another, because of the act of App. (1971) 491 P.2d 692 as follows: himself, forced to defend he is entitled to “ ‘Regarding attorney’s it is the including attorneys’ recover his loss general that, rule in the absence of con responsible. and costs from one tract, statute recognized ground of eq He refers us to the from following Amer- uity, a court power has no to award an Jurisprudence ican and from Second attorney’s fee as a of the costs of Restatement of Torts2: litigation. ex rel. State Macri v. Bremer Expense Litigation. 914. “§ ton, 8 Wash.2d (1941). P.2d 612 person through A the tort of an- However, a exception narrow to this rule required other has been to act has been established in this state. The protection of his interests bringing or Supreme Court has held that when the against per- an action a third natural proximate consequences of a compensation son entitled to recover wrongful act plain defendant involve time, reasonably necessary for the loss of tiff in litigation others, with there attorney fees expenditures and other recovery be a for the reasona thereby suffered or incurred.” Restate- ble expenses litigation, Torts, (1939). ment of § including compensation for attorney’s Litigation against person third “§ Co., fees. Wells v. Aetna Ins. 60 Wash.2d 166.— as result of wrongful defendant’s act. (1962). 376 P.2d 644 original The also, Law, Second, Torts,

2. See Restatement of T.D. No. 19 expenses in generating suit must be lowance of indemnification for attorney’s stituted a third not connected fees and court costs under the circum- the initial act. Armstrong stances of this case. Thomson, Co. v. 64 Wash.2d Constr. “We therefore reverse the lower court’s (1964). Clearly, P.2d 976 Vincent fell denial of the cross-claim for indemnifica- party category. into that third 5 Wash. tion and hold that if a retailer would 686-687, App. at 491 P.2d at 694.” Koch clearly have been entitled to indemnifica- Seattle, City Wash.App. tion of attorney’s fees and court costs if it 513 P.2d at 575. had lost in the main action and had a judgment against (for rendered passive Koch, apparent it is the interme- negligence, breach of implied warranty, went appellate beyond diate court or strict liability), then it will be equally pleadings to the evidence and concluded entitled to such indemnification in the city should recover its costs and event it should successfully defend saying: itself in the main action.” 358 So.2d at case “In the instant the court found city negligent after trial that the was not We tend agree with Pender that solely all and that Ford was negligent. indemnification fees and costs city would not have incurred costs should not rest upon whether or not the fees but for Ford’s sole indemnitee lost in the main action and had negligence. and active Vincent v. Park judgment rendered it. Light supra, land Power applies.” & 585, Wash.App. 9 513 P.2d at 577. Versatile’s second main point is that tra- ditionally each party pays its own attor- key Versatile contends that the to indem- neys’ fee absent evidence of bad faith liti- nity liability and as gation, unjust enrichment, specific agree- damages, did not find liable for he Suhr ment, or statutory authorization. Versatile attorneys’ cannot recover for fees and costs note, refers us to the “Attorneys Fees: expended defending the complaint. It Where Shall the Ultimate Burden Lie?” 20 asserts that no cause of action for indemni- Vand.L.Rev. (1967); 1216-33 and “Environ- ty arises until the indemnitee has suffered mental Attorney’s Fees”, 51 N.D.L. an actual loss as a result of the indemnitor’s Law— Rev. 531-34 conduct, through payment of damages. generally Versatile refers us to United Gas Versatile asserts that allowing an award Corp. Guillory, (5th v. 206 F.2d 52 Cir. attorneys’ fees here would be tanta- 1953), den., rehearing (5th 207 F.2d 308 Cir. holding mount to that the loser pay will 1953), Waylander-Peterson Co. v. Great winner’s attorneys’ that, fees and accord- Ry., (8th Northern 201 F.2d 416 Cir. ingly, if Suhr entitled to recover his de- 1953). fense costs because he succeeded in avoid- ing damages, assessment for then the victo- thereto, response In refers us to a Conrad, rious plaintiff, should also be reim- appeal district court of decision out of Flori- bursed for attorneys’ fees. Versatile da, con- Industries, Pender entitled v. Skillcraft tends that suggest no one would Inc., this is (Fla.Dist.Ct.App.1978). 358 So.2d 45 permissible under these facts. quote We therefrom: apparently “The issue is one of first Versatile asserts that neither Herman v. Florida; impression in there are no eases Irrigation, General supra, which we have requiring, implied under an contract theo- discussed, earlier Sayler nor Holstrom, v. ry, indemnification of attorney’s fees and (N.D.1976), 239 N.W.2d 276 which we have court costs to a defendant found not lia- discussed, heretofore both relied ble from a codefendant who is found lia- any nor of the North Dakota cases token, ble. But the same there are no brief, cited in Suhr’s deal question with the prohibiting cases it. We believe of indemnity for attorneys’ fees in strict sound policy considerations favor the al- liability situations. This is true.

576 - independent arate charges wrong- been found on cases have Although no ' Minn, out points part.” Versatile ful acts on his 273 precise question, ruled that court has N.W.2d at 69. costs under the awarded as cannot be In Armstrong Company, Farr Rubber v. powers. equity court’s (1970), 288 Minn. 179 N.W.2d 64 v. Un upon Tharaldson relies Versatile tire, injured plaintiff was when a manufac- Fund, N.W.2d 39 Judgment satisfied tured one defendant and sold to the Tharaldson, unsatisfied an In (N.D.1974). another, blew out while the plaintiff the dis we said that fund judgment driving his recreational vehi- plaintiff was awarded, as costs when it erred trict court sought indemnity cle. The seller from the $8,765.20 ex Tharaldson, in medical Although the court manufacturer. held fees. We $2,000 penses, liability solely that as the seller’s stemmed said: of a passive from its role as retailer stated, although in have often “We product defective furnished that costs varying language, somewhat indemnity, manufacturer it was entitled to statute, and, the creature purely permit it declined to the seller to recover its authorization, an allow statutory absent attorneys’ fees in defense of the action. by a trial cannot be made therefor ance holding, so it said: v. Annexation Re City Fargo court. party seeking “8. cases where a (N.D. Commission, view indemnity required has been to defend v. Development Corp. 1966); United arising wrongful out of another’s claims Dept., 133 N.W.2d Highway State conduct and also to defend accusations Gunsch, N.W.2d (N.D.1965); Gunsch encompass separate wrongful N.W.2d at 42. (N.D.1954).” acts, may properly court disallow at however, noted, that neither It should torney’s fees in action. Since cases cited any of the nor Tharaldson against the required Olson was to defend indemnity action. involve Tharaldson claims, breach of it was that, even in instances contends its position of recovery permitted which courts conduct and therefore reasonable attor person seeking attor- attorneys’ if a of See, neys’ fees must be denied. O’Con required to defend has been neys’ fees Jackson, 91, 273 Minn. 140 nell v. N.W.2d breach of of another’s only claims 65; Fidelity & Cas. Co. of New York v. conduct, allegations also but or tortious Co., Tel. Exch. 140 Minn. Northwestern indepen- separate encompass his 800; 229, 167 N.W. Inhabitants of West not allowed. acts, attorneys’ fees are dent 100, Mayo, Am.Rep. field v. 122 Mass. 23 basically upon it relies proposition, this For Minn, 97, 292.” 288 at 179 N.W.2d at decision, decisions, an Iowa Minnesota three 72-73. decision. and a California In Pfeifer v. Truck Crane 308 Service Jackson, 273 v. the case of O’Connell 279, (1976), Minn. 587 the court 242 N.W.2d 65, (1966), 91, 96, 69 N.W.2d Minn. 140 non-products liability held in a case that and awarded fees were allowed attorneys’ right indemnity there is no to for particular facts under the to the indemnitee party fees when a third defendant has no there, court ac- the Minnesota present duty to raise a defense for the benefit of rule to be: knowledged the party plaintiff. the third fees have “2. Where such quotes from an Iowa case of disallowed, usually the reason been Senecal, 487, 112 Rauch v. 253 Iowa N.W.2d fees seeking attorney’s person (1962), 886 as follows: defend not required has to been holding proposi- is confined to the breach of “Our arising out of the other’s claims acts, successfully allega- tion that a defendant who but also warranty or tortious sep- against primary negli- his own encompass defends tions or accusations

577 jurisdiction least, not recover third relied may by Ver- at gence, against a code- satile is that of expenses California. Versatile draws negli- liable for is found following fendant our attention to the from Byron though some so even This is gence. Woods, 777, Cal.App.2d Jackson Co. v. 41 made, and were charges 639, (1940): 107 P.2d 643 liability of the defended, which the as to complaint . . charged ap- “[T]he only to secondary first defendant pellant committing wrongful with acts 253 Iowa second defendant.” that of Nor does it matter that at 889. N.W.2d 112 at charges against appellant made . the instant Because may groundless, have been or for other warn, and the failing to charged reasons could not have been legally sus- Rauch was similar Suhr position in the tained. The fact that were made warn, we awith failure charged also require appellant was sufficient to to de- the court had to interesting what think it ; against fend itself them and under the subject. say on general rule an indemnitee cannot recov- warn, we matter of failure “As to the er an indemnitor for counsel had an pointed out Senecal voluntarily paid by costs fact, opportunity, the best opportunity, in defending him a suit for purchaser of warning to the give caused the indemnitee’s own charac- valve, dangerous of the defective [Emphasis Cal.App.2d acts.” 41 added.] heater; and he was water teristics 107 P.2d at 643. charge submitted to it was not ultimately though decision, In a more recent California Iowa [Emphasis jury.” added.] Court, Supreme in Davis v. Air California at 889. Industries, Inc., Cal.Rptr. Tech. Senecal, that Rauch points out Suhr (1978), opinion, P.2d 1010 a divided over- subsequent Iowa was criticized supra, Appeals a decision of the Court of ruled N.W.2d 759 Lyons, Peters v. decision in its the Second District decision of Davis 1969): (Iowa Industries, Inc., Cal.App.3d v. Air Tech. recoverability “Is the determination Cal.Rptr. charges to be based on attorney fees decision, In the the interme- earlier Davis facts or on the injured party the decision appellate diate court affirmed As noted jury? by the court as found of the trial court which allowed Hanson, Rauch v. under Sene- by Judge in a case said counsel for to be argued the determi- cal, supra, the instant one”. “strikingly similar to primary on whether is to be made nation reject this basis alleged. We acts are Supreme In the Court decision California First, the indemni- determination. such Davis, majority pointed of the court a claimant may wisely settle tee legislature out that of California had filed, indeed, it actually suit is before that, an ex- established in the absence of under certain duty to do so may be his statute, each to a press agreement or be circumstances, attorney may fees responsible lawsuit is for its own Second, the de- process. in the incurred acknowledged it that limit- Although fees. between matter as of this termination the rule had been made to exceptions ed not should and indemnitee indemnitor code, pointed that in the out embodied of such or absence presence on the rest had never Supreme Court of California through who party, a third pleading may be awarded in held optimism or caution an overabundance ordinary products liability cases. (or less) prove. he can than alleges more authorizing at- discussing exception In an on the facts must be The decision prevail on torneys’ fees for defendants who thereof.” 168 the trier as found implied warranty, the court said: claims for at 770. N.W.2d In to the case of Rauch v. were to carve out addition Sene this court “Even if cal, tort we have earlier exception supra, for indemnified discussed an such defendants, purpose be herein, Supreme a review of the the California Court re it would Inc., reveals exception Krug Sterling Drug, v. hind ferred to the indemnitee 143, (Mo.1967); cases where apply in 156-157 S.W.2d Sorenson v. solely in defense 300, attorney’s Fíate, Inc., 306, Safety 306 Minn. The ex wrongdoing. alleged 848, (1975); his own N.W.2d v. Shaffer authorize the re intended to ception Inc., S.D., 251, Honeywell, a the defense costs of imbursement constructively liable ‘because

party held We have read we those decisions and find whose of another for actual default supportive. them really conduct the defense benefit [was] We believe that the trial court’s disallow- County (C. & O. C. Co. v. . . . .’ ed ance of in the attorneys’ fees instant case is emphasis (1881) 57 Md. Comm’rs. supportable even if it should be contended leading case added.) recognized As exclusively that Suhr did not defend (1877) 122 Mass. Mayo Westfield against allegations negligence. of his own awarding no there was basis We believe it is sufficient if he defended had where the indemnitee attorney’s fees against any allegations negli- of his own benefit its own actually defended gence, warranty, of his own or of his own ‘When for that of another: rather than liability. strict against indemni- . the claim [the contract, Any other for his rule would be not un- upon his own tee] workable, misfeasance, . counsel fees . . inconsistent with own general defendants, against of the suit himself rule that tort paid in defence ” Cal.Rptr. vindicated, pay if must are not recoverable.’ for their own de- 582 P.2d at fense. went on to Supreme Court The California closing, express we the view that reasoned, modern de- that the better assert pleadings integral litiga Westfield cisions have followed determining tion and that in whether or not pay compel manufacturers refused to party may be indemnified for his attor suppliers indemnified attorneys’ fees to neys’ costs, fees and the court examine have defended al- distributors pleadings to determine whether or not independently lia- were legations party seeking indemnification from an warranty. or breach of ble for exclusively partially other was reversing appellate the intermediate against allegations negligence, of his own court, Supreme Court said: warranty, his own or of strict liability. exclusively against Davis defended

“Since opinion, For the reasons stated in this negligence, he is allegations of his own judgment of the trial court is affirmed. to recover fees.” not entitled 422, 582 P.2d at 1013. Cal.Rptr. WALLE, VANDE PEDERSON and PAULSON, JJ., also de In the instant concur. against allegations of his exclusively

fended SAND, (concurring Justice specially). and, notwithstanding the I concur in the authored opinion by Chief taken issue was fact Justice Erickstad. Nevertheless I deem it finally the from the when case appropriate to make additional observations jury, the we believe that be submitted to legal concept comments. The that a was conducted for his cause the defense person any damages is liable for he has benefit, did not fit within the caused is not new. Davis, attorney in e. exception set forth i. The essentially Napoleon (1804), 1383, if the is Code provid- fees are allowed defense § ed as being conducted for another’s benefit. follows: damage provided “1. as responsable qu’il Except du in est subsection “Chacun the fait, amount of fees attorneys in par son mais non seulement a cause civil actions must be left to the par son im- sa ou par encore agreement, or express implied, of the [Every responsible is person prudence.” parties. damage he has caused not the for “2. In civil actions the inmay, court its act, but his by his also only discretion, upon a finding that imprudence.] by his or frivolous, pleading award rea- contains sub- Civil Code The Louisiana costs, sonable actual or statutory concept: same stantially the both, including reasonable for the responsible dam- “Every person fees prevailing to the party.” act, by his merely he occasions not age The attorney concept that fees is a mat- imprudence, his by his but ter between the client and attorney his skill.” want of recognized embedded and as law in this (§ 853, New York draft Code of Field extent attorney The State even to the fees provision. very a similar 1865) are not in an contained recoverable action unless ex- Dakota, adopted pressly instances law. many Kilby authorized v. Movius North 32-03-01, Land & N.D. Loan 215 N.W. 284 as reflected § Field Code (1927). Code, which Century pro- Dakota North follows: vides as Along line, same North Dakota (which Court has “Every person who suffers detriment stated that costs under provisions fees) some include attorney omission an- unlawful act or from the purely the creature statute and can person in may recover from the other when expressly awarded authorized compensation money, therefor a fault Compen statute. Wallace Workmen’s damages.” is called Bureau, N.D. sation 293 N.W. 192 concepts have been and are basic These applied various situations to recognized The Legislature North Dakota has enact- circumstances, all, if at rarely, laws providing authorizing ed attorney even if meet and include fees payment attorney in certain cases of dam- the usual standards come within 32-15-32, (§ such as domain eminent ages. NDCC), prevailing in workmen’s claimant differently are treated Attorney fees (§ 65-10-03, NDCC), compensation cases though they have situations most attorney in certain and reasonable fees damages and indem- similarities with many (§ 29-07-01.1, NDCC). criminal The cases illustration, un- way By nity. Congress has at- United States authorized ordinary includes dam- definition der torney in antitrust actions under 15 attorney fees. In some areas ages but not 15; also, rights U.S.C. in civil cases and § statutory attorney fees are law specific class actions under antitrust statutes. damages. considered There are few in which the only a instances Legislature Congress North Dakota or the general- Legislature Dakota North provided attorney proceed- has recognized exceptions, has ly, with few ings or in law. actions concept that the old common law followed statutory a either as result of Generally, criminal actions fees in civil or attorney law, attorney al- law or case fees are not express or agreement, to the be left must has successfully de- lowed Costs, how- parties. between the implied, action the action fended unless ever, prevailing party. to the are allowed 28-26-01, NDCC, as was frivolous. §See (prior amend- Section 28-26-01 amended. now ment), This section has been NDCC. law, instant by Chapter 1977 Session as illustrated amended in a liabili- products the retailer Laws, leaves provide follows: ny, (N.D.1978). 268 N.W.2d 114 situation —a choice It can be in a “Catch-22” ty ease Charibdis, which is nei- readily and seen that the retailer is in a Scylla bind. between However, just. development fair nor because of the ther case law which we inherited and which to a has a de- product manufacturer’s If the law, degree promoted by statutory calls it to the attention and the retailer fect because of the existence of the law in this manufacturer, the retailer in so do- attorney state that fees are not included in position of risky in a places himself ing provided unless otherwise for knowledge prod- being charged with statute, opin the conclusion reached in the fault, if the retailer does not and then uct’s proper ion Chief Justice Erickstad is warning purchaser affirmatively act in under the circumstances. charged be the retailer can this defect attempts to If the retailer negligence. with though authority Even this court has the subsequently or hazard and a defect correct 87 of the North Dakota Constitu- under § injury resulting in an something occurs rules, to promulgate procedural tion can be or user the retailer purchaser matter procedural is more substantive than can take the the manufacturer blamed and legislation would the more appropri- be the fault of the it was all position way resolving ate inequity. some alteration. having for retailer I believe that this is a that may matter or hazard if there is a defect Similarly, by appropriate leg- and should be corrected or notice as spot did not the retailer islation rather than court rule or deci- with charged he can such sion. something doing not noticing it and about it. addition, products liability in some

cases, a defendant retailer is made keep possession, a chain of

to maintain intact, to avoid or chain of transaction problem, or sim- jurisdictional some

correct advantageous for it is deemed

ply because the retailer has the reason. Thus whatever The FEDERAL LAND BANK OF ST. the business getting either out of choice of PAUL, corporation, Plaintiff consequences a Hob- suffering the —such Appellee, my judgment is not fair or choice in son’s it can be assumed just—unless compen- sufficiently adequate profit is Dakota, Byron The STATE of North risk. sate for the Dorgan, L. as State Tax Commissioner Dakota, of the State of North Defend- any legal require view it does not my Appellants. ants and complaint charging to draft a ingenuity negligence. allega If the someone Civ. No. 9543. complaint were to constitute the tions of a Supreme Court North Dakota. per whether or not a determining basis obligated to defend himself will be son Jan. fees there recovering attorney without all, safeguard at be in fact be no simple process be a to draft a cause would though

complaint alleging sup be no iota of evidence to

there would Pleadings alone should

port allegation. only if there is no other

be resorted to Apple record.

evidence available Compa

gren v. Milbank Mutual Insurance

Case Details

Case Name: Conrad v. Suhr

Court Name: North Dakota Supreme Court

Date Published: Jan 17, 1979

Citation: 274 N.W.2d 571

Docket Number: Civ. 9373-A

Court Abbreviation: N.D.