Fischer v. Knapp, s. 10292

Citation332 N.W.2d 76
Decision Date04 April 1983
Docket NumberNos. 10292,10306,s. 10292
PartiesDonald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant and Appellant, and Elden Brady, Defendant. Donald FISCHER and Maurice Fischer, Plaintiffs and Appellees, v. Richard KNAPP, Defendant, and Elden Brady, Defendant and Appellant. Civ.
CourtUnited States State Supreme Court of North Dakota

James A. Wright (argued) and Cecelia A. Wikenheiser, of Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for plaintiffs and appellees.

James S. Hill, Sp. Asst. Atty. Gen., Bismarck, for Richard Knapp.

B. Timothy Durick, Sp. Asst. Atty. Gen., Bismarck, for Elden Brady.

VANDE WALLE, Justice.

The defendants, Richard Knapp and Elden Brady, have filed separate appeals from a judgment of the district court of Stutsman County dated September 16, 1981, and from separate orders of that court, dated August 2, 1982, denying motions by Knapp and Brady for relief from the judgment and for a new trial. By stipulation of the parties the appeals have been consolidated for disposition by this court. We reverse the orders denying a new trial.

On August 31, 1979, fifteen live red foxes were confiscated from Donald and Maurice Fischer, brothers, who are the plaintiffs in this case, by Knapp, a district game warden employed by the North Dakota State Game and Fish Department. Knapp confiscated the foxes in the belief that the Fischers had dug the foxes out of their natural den in violation of State law. Knapp took the foxes to the Spiritwood Lake field station pending disposition of criminal charges filed against the Fischers for unlawful possession of furbearers. Brady, employed as a caretaker at the Spiritwood facility by the State Game and Fish Department, testified that although he was not instructed by anyone to care for the foxes he did so. Knapp testified that although he was unaware that anyone had been instructed by the Department to take care of the foxes he looked at the fox cages "approximately once a week" but he did not feed the foxes or clean the cages.

On December 6, 1979, the Fischers entered guilty pleas for "illegal possession of furbearers." As part of the sentence, they were each fined $50 and were ordered to pay $100 to reimburse the State Game and Fish Department for the feeding and care of the confiscated foxes. On that same date the foxes were returned to the Fischers.

Thereafter, the Fischers filed this civil action against Knapp and Brady seeking compensatory and punitive damages for injuries to the foxes allegedly caused by the willful or grossly negligent failure of the defendants to provide proper care for the foxes during the three-month confiscation period. The case was tried before a jury, which returned a special verdict in favor of the Fischers awarding compensatory damages against Knapp and Brady in the amount of $1,976.95, as well as punitive damages against Brady in the amount of $250 and punitive damages against Knapp in the amount of $2,500. Judgment was entered by the district court on September 16, 1981, in the amount of the jury verdict together with costs and disbursements. On November 30, 1981, through separate counsel, Knapp and Brady filed separate motions requesting relief from the judgment and for a new trial. By separate orders, both dated August 2, 1982, the district court denied the motions. Knapp and Brady have appealed to this court from the judgment dated September 16, 1981, and from the court's orders dated August 2, 1982.

With the exception of one issue which has been raised only by Knapp on appeal, Knapp and Brady have raised the same issues and have taken substantially identical positions with regard to those issues.

The issue raised by Knapp alone is:

Whether or not the district court abused its discretion in denying a new trial on the ground that defendant Brady communicated with the jury during a trial recess.

The following issues have been raised by both Knapp and Brady on appeal:

1. Whether or not the district court abused its discretion in refusing to grant a new trial on the following grounds:

a. That the State of North Dakota, through the State Game and Fish Department, and not Knapp or Brady, is the real party in interest and that the lawsuit therefore is barred because the State is immune from liability under the doctrine of sovereign immunity.

b. That there is newly discovered evidence requiring a new trial under Rule 59(b)(4), N.D.R.Civ.P.

c. That there is not substantial evidence in the record to support the jury verdict.

d. That the convictions of Donald and Maurice Fischer for illegally digging out furbearing animals in violation of Section 20.1-07-05, N.D.C.C., were improperly excluded as evidence by the district court.

2. Whether or not the district court erred in denying Knapp's and Brady's motions for a directed verdict under Rule 50, N.D.R.Civ.P.

3. Whether or not the district court erred in denying Knapp's and Brady's motions to dismiss, under Rule 12(b), N.D.R.Civ.P., for failure to state a claim upon which relief could be granted.

4. Whether or not the district court erred in denying Knapp's and Brady's motions for relief from the judgment under Rule 60(b), N.D.R.Civ.P.

One of the grounds raised by Knapp in support of his motion for a new trial was that defendant Brady, after the jury had been sworn, engaged in a conversation with one or more of the jurors during a trial recess. Knapp asserts that neither he nor counsel for the defendants became aware of the contact until after the judgment was entered. In denying the request for a new trial on this ground the district court stated, in relevant part, in its memorandum decision:

"The Court finds that the contact in this case was the mere exchange of simple pleasantries as is indicated by the affidavits of those who were best able to observe the contact and hear what was going on.

* * *

"The affidavits clearly reflect that the contact was minimal. It was in the nature of a greeting and it was properly terminated by the bailiffs when it occurred.

* * *

"It is clear from all the affidavits that the contact was minimal and there is not the slightest hint that any of the contact had to do with conversing on the subject of the trial or in forming any opinions with reference thereto."

It is within the sound discretion of the trial court to determine whether or not a new trial should be granted, and the trial court's determination in this regard will not be overturned on appeal unless a manifest abuse of discretion is shown. Basin Electric Power Co-op. v. Paulson, 289 N.W.2d 548 (N.D.1980).

Pursuant to Section 28-14-16, N.D.C.C., the jurors are to be admonished by the court that "it is their duty not to converse with or suffer themselves to be addressed by any person on any subject of the trial, ..." Although it was not recorded, the court, through its memorandum decision, states that the jury was admonished as required by statute. None of the affidavits submitted by Knapp in support of his motion indicate that there was conversation between defendant Brady and the jurors on any subject of the trial. Upon reviewing those affidavits, we do not believe the trial court erred in concluding that the contact between defendant Brady and the jurors was "minimal" and was quickly terminated by one of the bailiffs.

In Schoenrock v. Eib, 75 S.D. 613, 71 N.W.2d 82 (1955), one of the two defendants held a conversation with jurors during a recess consisting of a comparison of farming conditions in the defendant's home State of Kansas with those in South Dakota. In upholding the trial court's denial of a motion for a new trial, the South Dakota Supreme Court stated:

"Of course the respondent should have avoided all contact with jurors but for this court to hold that the trial court abused its discretion in holding that the record facts cast no just suspicion upon the verdict would be simply opening the door for setting aside verdicts because of some whimsey or fanciful notion conceived after an adverse verdict." 75 S.D. at 616, 71 N.W.2d at 83.

We are well aware that the law with regard to jury conduct must be strictly followed in order to keep the conduct of jurors and jury verdicts above suspicion. See James Turner & Sons v. Great Northern Railway Company, 67 N.D. 347, 272 N.W. 489 (1937). Nevertheless, under the circumstances of the alleged jury misconduct in this case and on the basis of the affidavits presented before the district court, we conclude that the trial court did not abuse its discretion in refusing to grant a new trial because defendant Brady's contact with the jury was "minimal" and did not relate to any subject matter of the trial. We believe, as did the South Dakota Supreme Court in Schoenrock, supra, that to overturn the trial court's ruling for abuse of discretion would constitute setting aside a verdict on a "whimsey or fanciful notion" that prejudicial misconduct occurred.

Knapp and Brady assert that this lawsuit is, in effect, an action against the State of North Dakota which is barred under the doctrine of sovereign immunity. We disagree with Knapp and Brady's analysis of the nature of this lawsuit.

This action is not against the State of North Dakota but rather is against Knapp and Brady, as individuals, for willful or grossly negligent conduct in failing to properly care for foxes in their possession. That Knapp and Brady may have been acting in the scope of their employment as employees of the State Game and Fish Department while the foxes were in their possession does not transform the Fischers' lawsuit into one against the State nor does it shield Knapp or Brady from liability under the cloak of sovereign immunity for wrongful acts committed by them. Spielman v. State, 91 N.W.2d 627 (N.D.1958).

In Spielman, supra, the plaintiff brought a personal-injury action against the State of North Dakota, Sivert W. Thompson, as State Highway Commissioner for the State Highway Department, and John M. Weber, an...

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6 cases
  • State v. Borner, 20120388.
    • United States
    • United States State Supreme Court of North Dakota
    • September 25, 2013
    ...[¶ 29] A rule of law should not be interpreted so as to benefit or reward the wrongdoer or to shield the perpetrator. Fischer v. Knapp, 332 N.W.2d 76 (N.D.1983). I believe some of the authorities relied upon by the majority engage in a hyper technical analysis of the conspiracy statute as a......
  • Leadbetter v. Rose
    • United States
    • United States State Supreme Court of North Dakota
    • March 19, 1991
    ...... Compare Fischer v. Knapp, 332 N.W.2d 76 (N.D.1983). However, Leadbetter's complaint does not allege ordinary ......
  • Keyes v. Amundson, 10396
    • United States
    • United States State Supreme Court of North Dakota
    • December 28, 1983
    ...to jury conduct must be strictly followed in order to keep the conduct of jurors and jury verdicts above suspicion. Fischer v. Knapp, 332 N.W.2d 76, 79 (N.D.1983); Demaray v. Ridl, 249 N.W.2d 219, 225 (N.D.1976). Separation of the jurors after they have begun deliberations should be minimiz......
  • State v. Grenz, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • March 28, 1989
    ...108 N.W.2d 456 (N.D.1961). Further, the rule of law should not be interpreted so as to benefit or reward the wrongdoer. Fischer v. Knapp, 332 N.W.2d 76 (N.D.1983). Moreover, the interpretation urged upon us by Grenz would create rather than resolve ambiguity. For example, Section 39-06-42(1......
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