*1 97 651, arose, the time the Company, strong 254 N.C. cause of action Insurance Mutual principal indication of its use. 645 stated: 119 S.E.2d the use is the of test character “The in which We hold vehicle with taken into consideration the vehicle decedent was killed was commercial Law, the car.” Zabriskie v. the form of vehicle and excluded under the terms 626, 471, 1922, N.Y.S. 628. 118 Misc. 194 princi the automobile it was policy; truck is a vehicle “An automobile and pally used as a commercial vehicle conveyance over purposes for commercial respondent the policy cannot recover under type of roads, average ordinary and the in issue. especially designed that kind of vehicle is plaintiff’s cause Judgment is reversed and mechanism propelling in its of action dismissed. body for that function.” its construction Co., Engine La Fire American France 964, Cir., 1925, Riordan, 2 6 F.2d Inc. v. STRUTZ, J., and TEIGEN C. con 'commercial use’
966. “The words
KNUDSON, JJ., concur.
in which one
note use in a business
Zentz,
engaged for
Lintern v.
profit.”
ERICKSTAD,
himself dis-
J., deeming
756,
753,
595,
1950, 327
42
Mich.
N.W.2d
Honorable
qualified,
participate;
did
D., L. &
cial communication domestic, the time of submission of this by water, Court at foreign land or * * * case, participate. did not external and internal.’ trans portation is part as much commerce transported.” the goods
as are Conecuh 1922, Simmons,
County Ala.App. v.
65, 489. So. policies,
The two brought,
action is the policy covering truck, involved the same insured and COMPANY, IMPROVEMENT NORTHERN insurer, part same and are of the record Respondent, corporation, Plaintiff and during before the Court and were in effect period same of time. Inc., CO., a cor- PEMBINA BROADCASTING poration, De- a.b.d. A contract should be viewed Appellant. fendant and light of the circumstances conditions Civ. No. 8379. prevailing at time it was executed. Kelner, Kern v. N.D. N.W.2d Supreme of North Dakota. Court Sept. 28, 1967.
While the evidence indicates that
truck at purposes times used for transportation commodities,
than the
there can be no it but what was
primarily adapted purposes, to commercial pleasure
and its incidental use and non-
economic purposes, change would not put
character. The use to which was
Stokes, Vaaler, Gillig Warcup, & Grand Forks, appellant. for defendant and Wattam, Peter- Vogel, Bright & Vogel, son, by Kelly, plaintiff and Fargo, for John respondent. TEIGEN, Judge. Broadcasting defendant, Pembina as doing business
Co., Inc., corporation as referred to KTHI-TV, hereinafter appealed from favor entered on a directed of the plaintiff, Improvement Northern Company, a corporation, hereinafter ferred to Northern, amount $7,500,plus interest and costs. Northern, a firm, construction construct- parking lot, approach ed sidewalk and on occupied certain land KTHI-TV aas owner, Dalco American Enter- lessee of the improvements prises, Inc., which land and Marquette National mortgaged were charge for Minneapolis. The Bank of total $9,500. KTHI-TV this construction was $2,000and this paid sum to Northern brought KTHI-TV action was $7,500. Dal- Neither balance of recover the Mar- Enterprises nor co American quette Bank made a National was action. proce- are faced with outset we this taking appeal to problem. dural In demand, con- court, KTHI-TV de appeal, for a trial tained the notice of a trial objection to resistance nor novo. No ap- made Northern. de novo was proceeded recognized and respective were pellate briefs of theory fact for , that there was no prepared, and filed on basis served Therefore, jury. case in this court that the case was reviewable court, as a matter law the argument oral resolved de At the novo. words, argued that In where each of attorney court. for KTHI-TV a directed ver- novo in makes motion for be reviewed de case cannot provision in objects, dict neither reason the demand court for the “the court shall submit to state- trial de novo was contained * ** further, case, and, of all claims ment un- claims shall be de- peal qualify trial de novo to such 28-27-32, N.D.C.C., applicable nied” as was and the trial court der Section liberty motions, to rule on the tried to a also *4 points that specifications of error were done in this case. out record that also the the appehl, transcript proceedings of the and with the notice of served filed and defendant’s, KTHI-TV, ap- review lim- nature the is of and is contended that our peal Following by the initial brief consistent specifications. ited to the understanding supplemental interpretation with permitted and arguments, we parties. proceedings of the before the trial court. briefs to filed both N.D.R.Civ.P., provides in 50(a), Rule Northern, plaintiff, commencing The part as follows: jury jury trial. A demanded a this action the attendance and heard any At the close of all of the evidence plaintiff’s the of the adduced. close party may direct ver- move the court to a KTHI-TV, case, defendant, for the moved claims dict in his favor one or more a directed of which was verdict dismissal parties. the and one or more If the close all resisted Northern. At of thereto, party objects adverse the court rested, evidence, parties having the both jury shall to the the of all submit issues Northern, a plaintiff, for directed moved claims as to which evidence defendant, its The verdict favor. upon all and ceived issues as to such KTHI-TV, objection, but made no formal the mo- claims motion shall be A denied. renewed motion a directed verdict for tion for a is not a waiver directed verdict day The the trial following of dismissal. by jury though parties of trial even all motions, ruled bench both court from ver- the action have moved for directed * * * in the It denied the absence of dicts. granted plain- defendant’s motion and transcript We have examined the of jury tiff’s was then called motion. proceedings party and ob- find that neither back, whereupon the court directed trial jected di- to the a motion of the other for jury prepared a of execute form verdict Northern, open rected verdict. plaintiff, in favor of the Upon court. and the court’s verdict specifically provide that The rules
order, judgment appealed from was en- a a ver who makes motion for directed tered. jury dict trial if mo does not waive a plaintiff, Northern, granted, is argued Rule tion not and this true that 50, N.D.R.Civ.P., provides all the action for moved verdict, However, requires that it is motion for directed directed verdict. noted may jury submit issues to the court a verdict in favor of direct shall party moving party party ob- the event the adverse if adverse defendant, motion, jects object provides to the to the The rule motion. plaintiff’s objects, the object did when adverse of claims as a directed and that both submit issues all shall Otherwise, the rule remains the been received to ervation. to which evidence has jury deny the motion. It follows same. action move for to an where Federal Interpretations of Rule 50
directed
at the close of all of
rules,
(a)
State
as found
States
evidence,
objects
and neither
the motion
Arizona, Nevada,
Colorado, are of
of
other,
party by
of the
each
his failure
rules
assistance to us because the
no
object
right
to a
has waived his
pro
jurisdictions
those
do not contain the
and the
raised
the motion become
objection by the adverse
allowing
vision
questions for the court.
adopted many
party. Although we
rule,
interpretation
Our
set
verbatim,
Federal Rules of Civil Procedure
above,
harmony
forth
is in
with the hold-
adopt
50(a)
we did not
verbatim
ings
majority
jurisdictions.
preserved
procedure under the
our former
Trial,
256(b);
Am.Jur.,
Trial
§
C.J.S.
mo
provision
statute and added the
that a
Secs.
and 342.
tion for a directed verdict does not consti
tute
trial if
a waiver of
of this
Some
the members
denied.
motion for a directed
Whether
provision
court feel that under the
granted
verdict shall be
where the court
provides
rule which
that when both
so,
prevented
no
doing
because
to an action make motions
*5
made,
objection
the decision
has
is for
verdict,
objection
each motion
as an
stands
of the trial court based on the state of
adversary.
to the motion
do not
of his
We
rules.
record under well-established
practice
find.
this
so
Under former
State, if
adoption
one made a motion for a directed
Prior
of the North Da-
1957,
verdict and failed to make
reservations
kota
of Civil Procedure in
Rules
trial,
jury
a
in the event
motion for a
many
his
this court
that where
held
cases
denied,
directed verdict was
he
deemed
was
motions
ver-
made
for directed
rule,
jury
to have
dict,
waived a
trial. The
issues of both law and fact became
constituted, prevents
interpre
now
this
questions
by
the trial
determination
tation. It is the movant who does waive
favorably
court to be decided
to the movant
jury
by
his
if
law,
motion it is denied and if,
record
as matter of
so
this is
he
true even
has failed to
Machinery,
quires. The latest case is Farm
make
jury
reservations for a
trial.
Inc., Bry, N.D.,
v.
determination to
court the
manager
of Northern
by
written
office
a case
the court with-
constitute
tried to
de-
(since
Lukkason
and
to Robert
contemplated
out
statute.
manager of KTHI-TV.
ceased), general
Train-
Wasson
of Railroad
v. Brotherhood
and
to do
work
men,
an
offer
This
contained
246,
65 N.D.
257 N.W.
said
accepted
for KTHI-TV
ruling
v. Brother-
was followed in Huffman
president.
its vice
Robert Lukkason as
253,
Trainmen,
hood of Railroad
65 N.D.
Lukka-
admits
said Robert
defendant
639,
and
Minot Build-
N.W.
Cloone v.
general
president
vice
son was the
ing
Association,
&
543,
Loan
68 N.D.
was owned
manager
change
N.W. 441. There has been no
Broadcasting
operated
Pembina
in the statute since
decisions and we
these
a director
he was also
Company, and that
see no reason to deviate from
deci-
these
corporation on
of said
stockholder
sions.
follows:
The letter is as
date.
reason,
toAs
the second
we find
April
that although
requested
a trial
de novo
Lukkason,
Mr. Robert
appeal,
the notice of
it was not made a
Manager
General
part of the settled statement of
case.
TV
KTHI
request
This
held that such a
Fargo, N. D.
demand for trial de
is not
novo
sufficient.
Dear Sir:
statutes,
To be effective under the
must
be contained in the settled statement
perform
propose
work
We
28-27-32, N.D.C.C.;
case. Sec.
Anderson
approxi-
Fargo
KTHI TV station
Blixt, N.D.,
799;
v.
72 N.W.2d
Retterath
$9,100.00.
mately
Retterath,
76 N.D.
It is our *6 the assignment from be received on to The court directed the jury to to The balance mortgagee involved. is return plaintiff a favor the paid accept work by KTHI We the TV. $7,500, plus the amount of interest the total amount on that condition costs. Judgment accordingly was entered guaranteed by KTHI to us TV $7,998.85. amount of This is mortgage assignment from the event the judgment. taken from the The defendant’s not effective. is specifications assigned it error was error for the court to direct a verdict on ac- acceptable, please sign If this is ground insufficiency of the evidence. ceptance below. particulars specified, No except that yours, Very truly the guarantee performance is one of payment not and that the evidence does IMPROVEMENT CO. NORTHERN plaintiff pursued not establish that the had R. judicial E. against remedies the primary its s/ Johnson obligor. E. R. Johnson The case is not here for trial de novo. TV KTHI only question The before us is whether by: Accepted Robert C. Lukkason s/ sufficient to sustain verdict. is V-P KTHI court, in ruling The trial defendant, KTHI-TV, deny not does The agreement that an found corporate authority of nor the letter where- was entered into between dispute it Lukkason, does nor officer agreed perform the work plaintiff the demand. Its contention amount of pay for it. Its agreed to and the defendant was not between is that the contract primarily a letter was based decision “guarantee” but between The fact that KTHI-TV word Northern and else, that the instrument indicates that and someone Northern undertaking promise or guaranteed intended KTHI-TV collection. primary principal to be collateral to a or appellant, argues also is, obligation, that guaranty. contract of ambiguous the letter is and that it But the use term is not conclu- should guarantee be construed as a of col- question; writing may, sive of lection in view of the events which oc- nevertheless, import be shown not completed, curred after the work was indi- obligation. collateral The authorities cating and, it parties treated recognize “guarantee” that the word is therefore, argue it was error for the court frequently employed in business transac- question to have not submitted the describe, not the securing tions to of a debt, but an intention to be bound primary independent obligation. or points to evidence indicating $7,500. Northern had billed Dalco Al Am.Jur., Guaranty, Sec. 5. out, appellant point it the record also shows Northern filed a no reference the letter There mechanic’s lien property, the real to the debt and the of another evidence does occupied was owned Dalco and obligation. establish such an The use by KTHI-TV, and that Northern filed “guaranteed” of the word determina bankruptcy claim in the proceedings against tive of the the nature of the Dalco which later were instituted. How contract, that it was the intention of ever, it is clear from the record that North parties that KTHI-TV was to secure ern payment looked to KTHI-TV first for Am.Jur., Guaranty, debt of another. 24 and it was not until had met with con Sec. peri siderable resistance and a considerable passed od of time had that it took these There is no evidence KTHI-TV subsequent steps. findWe there is agreed security stand as another. support substantial finding evidence to KTHI-TV introduced into evidence did not treat the contract mortgage whereby mortgaged Dalco a guarantee of collection. premises upon per- which the work was Marquette formed National Bank. But “guarantee” frequently word *7 evidence mort- there is no is the employed in business transactions to de gage referred to in the letter. Further- scribe, securing not the of a debt of an is, more, if we assume that it there is no other, but, warrant, insure, an intention to any part for evidence that of the amount covenant, promise pledge or to be bound to mortgage given was avail- which the was perform primary independent as a function Dal- assignment by KTHI-TV or able and has no securing reference to a debt or co. obligation of another. dated, re- mortgage The is executed LANGUAGE CONSTITUTING — — approximately three months before corded GUARANTY “GUARANTEE.” that the total amount disputed writing The the letter and states whether receipted It for. guaranty received and evidences contract of is to be secured is or provides for future advances language determined in view there- additional of the $5,000 provided interpreted exceed as light of as of the at- loans not to relates to Chapter 1957. This law been said S.L. tending circumstances. has associations and is person and loan charge building that in order one with to to purpose allowing of limited advances another, undertaking the debt must of protect explicit. the lien. be clear and of dict or After a careful consideration his favor one more claims parties. is evidence, conclude the evidence or more If the we one thereto, objects feel party sufficient to sustain verdict. We court adverse record the would on this court shall submit of all issues had found the transac have been in error claims to which evidence Chapter provisions of tion within ceived upon came all issues as to such 22-01, N.D.C.C., guaranty. the law being of claims the A mo- motion shall be denied. therefore, is affirmed. judgment, tion is for a directed not a waiver verdict by jury though parties
of trial to even all the action have moved for directed ver- PAULSON, J., con- STRUTZ, J., and C. dicts. A motion for a directed verdict cur. therefor, specific grounds shall state the insufficiency and if is Judge (specially concur- KNUDSON, specified point out the shall ring.) particulars wherein the evidence insuf- is agree I result do concur ficient. Syllabus numbered wherein the with None of these statutes contain the fol- for a parties both move held that where lowing part Rule 50 sentence which is a objection from without directed verdict (a): by the be- motions raised the issues by the for determination questions come A directed verdict motion for a is cor- may a verdict. It court and it direct all by jury waiver of trial heretofore held rect court has that this parties for di- to the action have moved where, jury, tried to a action in law rected verdicts. respec- verdict for a directed move questions opinion law tively majority are of become the issues ad- provision 50(a) requiring the court and the determination may object may accordingly party verse direct a verdict plicable make when all and must be made withdraw the case there- well findings and draw conclusions make for directed of fact motions many a mo- only party In as when makes from and order thereon. tion, right party of the court con- to save his cases it the adverse equivalent to a How- motions as to have the submitted sidered the double agreement ever, provision requiring an submit the case to adverse Ad- object Bank to' a motion for directed court. of Mott Commercial County Co., applicable 73 N.D. where such motion ams Abstract party. is made by one the time N.W.2d 15. provision adopted part the stat- cases statutory These were decided on the utory rule, provision relating to motions law relating then in force to motions for di- part not a all verdict, judgment rected notwithstanding rule. *8 204, the Chapter verdict or for trial. new S.L.1951; 220, S.L.1945; Chapter 28- 50(a) §§ provision relating in Rule to 1509, N.D.R.C.1943; 28-1511, 28-1510 and by parties, motions as follows: all Chapter 245, S.L.1935; 7643, Supp.; 1925 § not a A a directed verdict is motion for Comp.Laws of 1913. These statutes by jury though all waiver trial superseded by 50, Rule North Dakota di- parties action have for to moved the Procedure, 25, Rules adopted April of Civil rected verdicts. provides: 50(a) Rule part the did not of our Rules until any the close of all become party Civil may adoption Dakota Rules of move to ver- of the North direct a
105 doubt, jury has re- until after the 1957, and, in- ed verdict no Procedure verdict, authorize but does not require turned its to the submis- cluded Rules jury en- par- withdrawing the case from the jury all sion of the issues to the where verdict, tirely. the court resembled The action of ties make motions for directed by Rule abolished uncertainty practice, now up procedural old thus clear withdrawing the case from 50(b), of previously had existed. for a direct- jury parties when both move by made A motion a directed verdict for ed verdict. party party has moved after trial court was in error opposition I believe the in direct for a directed verdict is directing plaintiff for the verdict for a directed verdict to the other motion I prejudice. party without the second this was error certainly indicates that is suf- opinion that the evidence by par- am of the objects the first to and that ficient the verdict ty obj to sustain .ought to stand as a direct ection notwithstanding the thereto, and, likewise, judgment a motion for motion is first A matter been submitted had this opposition direct the second motion. the defendant jury, of a and a by a waiver verdict parties motion all is not rendered, have would this court jury trial. on render jury’s verdict and had to reverse relating to 50(a) sentence Rule plaintiff. judgment by all a directed verdict erroneously in Rule trial court directs is similar to same sentence Where defendant, Procedure, but it 28 for a 50(a), verdict Federal Rules of Civil entitled con- that defendant would have The Federal courts in cases U.S.C.A. verdict notwithstanding sidering support our this Rule construction verdict jury had returned a of our Rule that a motion for a defendant, the trial error of a waiver of a all is not action prejudice, and Inc. v. court was without jury See, Properties, trial. Starfred 575; Mfg. not be disturbed Ettinger, Cir., court will 2 131 F.2d Vilter peal. 491; Rolaff, Cir., v. v. F.2d Marsh Co. 8 110 R.R.Co., Cir., 5 F.2d 498.
Illinois Central Stokkeland, Anderson N.W.2d Practice, (N.D.1964). And in 5 Moore’s Federal § 2345, 50.05[2], page the text writer said: spe- ERICKSTAD, Judge (concurring
The sentence in meant cially). practice re- change the federal former
quiring express implied an reservation that the Judge I concur in Knudson’sview rights against cross- waiver where directing trial court the verdict erred made. motions for a directed verdict were plaintiff. opposing parties make When present practice, a motion Under the verdicts, opposing motions for directed each longer each verdict no side for directed thereby the direction of objecting trial. jury amounts to a waiver cir- those verdict for the Under other. cumstances, pursuant 50(a), to Rule N.D.R. F. (C.C.A. 1939), In Zaks v. Elliott Civ.P., the trial must submit to interpreting 2d circuit court evi- of all claims as to which 50(b) practice of withdraw- said dence has been received. ing when both case move for a directed verdict was abolished the error I am not convinced that is with- *9 saying: 50(b), the court con- and am reluctant to so prejudice out permits clude, lest, doing, encourage That the trial court to I rule in so direct- in the practice a motion for a I am serve its decision on in the future. Because case, however, con- properly I believe when demand is made and is minority be the case. We would served tained statement of purpose that no worthwhile which, issue. have situation in by further discussion of that thus peal, of a judge’s in the form decision by majority The rule now established directed verdict reviewed would trap unwary opinion law- creates a judge’s de- than as a rather yer say, grant- object to who fails to “I view- cision. A verdict must be ing adversary’s my opposing motion.” appeal light ed most favorable used, magic Unless are those words it, if there is substantial adversary’s may grant motion and de- upheld; judge’s support it, must be deny taking the case motion, his in effect weight. appreciable only cision is entitled circumstances, the jury. from Under those apparent this discussion Whether pursuant opinion, majority significant. not, practical results available, de novo on is not