Regent Co-op. Equity Exchange v. Johnston's Fuel Liners, Inc., No. 8060

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtERICKSTAD; MORRIS
Citation122 N.W.2d 151
Decision Date29 May 1963
Docket NumberNo. 8060
PartiesREGENT COOPERATIVE EQUITY EXCHANGE, a Cooperative Association, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., a Corporation, Defendant and Appellant, and Leonard Prince, an individual doing business under the trade name of Regent Oil Company, Defendant and Respondent.

Page 151

122 N.W.2d 151
REGENT COOPERATIVE EQUITY EXCHANGE, a Cooperative
Association, Plaintiff and Respondent,
v.
JOHNSTON'S FUEL LINERS, INC., a Corporation, Defendant and
Appellant, and
Leonard Prince, an individual doing business under the trade
name of Regent Oil Company, Defendant and
Respondent.
No. 8060.
Supreme Court of North Dakota.
May 29, 1963.
Rehearing Denied June 14, 1963.

Page 152

Syllabus by the Court

1. Rule 17(a), North Dakota Rules of Civil Procedure, which requires that every action be prosecuted in the name of the real party in interest, is complied with where an action is brought against a tort-feasor in the name of an insured who has been paid by an insurer for only a portion of his loss.

2. As Rule 17(a), North Dakota Rules of Civil Procedure, is essentially the same as the statute which it superseded, the construction heretofore applied to the statute should apply to the rule.

3. The Court did not unduly restrict the defendant in the trial of its case by prohibiting the defendant from inquiring of the plaintiff in the presence of the jury concerning insurance settlements.

4. A specification of error is deemed abandoned unless supported by written argument in the brief filed in the Supreme Court.

Conmy & Conmy, Bismarck, for defendant and appellant.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Rausch & Chapman, Bismarck, for defendant and respondent.

Orrin B. Lovell, Beach, and R. J. Bloedau, Mott, for plaintiff and respondent.

ERICKSTAD, Judge.

This is an action on the part of the plaintiff, Regent Cooperative Equity Exchange, a cooperative association, to recover damages from the defendant Johnston's Fuel Liners, Inc., a corporation, and from the defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, for losses incurred by the plaintiff arising out of a petroleum fire allegedly caused by the defendants.

Defendant Johnston's Fuel Liners, Inc., answered the plaintiff, denying liability, and asserted a cross-claim against the defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, seeking to recover damages suffered by the said defendant in said fire.

The defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, in answering the plaintiff, denied all liability and by

Page 153

cross-claim against the defendant Johnston's Fuel Liners, Inc., a corporation, sought damages from said defendant for losses incurred by Prince in the same fire. Prince also denied liability on the cross-claim of Johnston's Fuel Liners, Inc. Defendant Johnston's Fuel Liners, Inc., replied to the cross-claim of Leonard Prince denying all liability.

This case was consolidated for trial with Case No. 8059, Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a corporation, plaintiff and respondent, v. Johnston's Fuel Liners, Inc., a corporation, defendant and third-party plaintiff and appellant, v. Leonard Prince, an individual doing business under the trade name of Regent Oil Company, third-party defendant and respondent, N.D., 122 N.W.2d 140; and Case No. 8061, C. W. Newby d/b/a Regent Lumber Company, plaintiff and respondent, v. Johnston's Fuel Liners, Inc., defendant, third-party plaintiff and appellant, v. Leonard Prince, an individual doing business under the trade name of Regent Oil Company, third-party defendant and respondent, N.D., 122 N.W.2d 156, and was tried before a jury in Hettinger County.

The jury on October 24, 1961, returned a verdict in favor of the plaintiff and against both of the defendants, namely, Johnston's Fuel Liners, Inc., and Leonard Prince, an individual doing business under the trade name of Regent Oil Company, in the sum of $46,768.83.

The Court did not direct the jury to render a verdict on the cross-claims of the respective parties because the issues in connection therewith were submitted in our Case No. 8059.

The defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, made a motion for judgment notwithstanding the verdict and in the alternative for an order granting a new trial. Said defendant, prior thereto, had made the appropriate motions for a directed verdict.

District Judge Harvey J. Miller, among other things, granted the motion for judgment notwithstanding the verdict and vacated the verdict as it applied to the said defendant. He did not pass on the motion for a new trial. He also ordered judgment against the defendant Johnston's Fuel Liners, Inc., in the amount of $46,768.83 in favor of the plaintiff.

Defendant Johnston's Fuel Liners, Inc., made a motion for judgment for said defendant notwithstanding the verdict against said defendant but did not move for a new trial in the alternative. This motion was denied by Judge Miller. Previously this defendant...

To continue reading

Request your trial
23 practice notes
  • Lembke v. Unke, No. 8486
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Octubre 1969
    ...not covered in the issues and not argued in the briefs, abandoned. See Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, 122 N.W.2d 151 (N.D.1963), Syllabus The first issue is whether the court erred in permitting the testator's attending physician to give his opinion as to Loui......
  • Agra-By-Products, Inc. v. Agway, Inc., AGRA-BY-PRODUCT
    • United States
    • United States State Supreme Court of North Dakota
    • 29 Marzo 1984
    ...Company of Dickinson, Inc. v. Kudrna, 194 N.W.2d 760 (N.D.1972); Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, Inc., 122 N.W.2d 151 2 Agra alleged that it sustained the following damage as a result of the fire: "[T]otal and partial losses to property ..., including a grain e......
  • Chicago, M., St. P. & P. R. Co. v. Johnston's Fuel Liners, Inc., No. 8059
    • United States
    • United States State Supreme Court of North Dakota
    • 29 Mayo 1963
    ...plaintiffs whose cases were consolidated with this case for trial. Regent Coop. Equity Exchange v. Johnston's Fuel Liners, Inc., N.D., 122 N.W.2d 151; C. W. Newby v. Johnston's Fuel Liners, Inc. v. Leonard Prince, N.D., 122 N.W.2d This case is, therefore, remanded to the trial court with in......
  • Krause v. State Farm Mut. Auto. Ins. Co., No. 37149
    • United States
    • Supreme Court of Nebraska
    • 25 Julio 1969
    ...insurer.' (Emphasis supplied.) In the quite recent case of Regent Co-operative Equity Exchange v. Johnston's Fuel Liners, Inc. (N.D.), 122 N.W.2d 151, the Supreme Court of North Dakota said as follows: 'Under the decision of this Court in the case of Farmers Insurance Exchange v. Arlt, N.D.......
  • Request a trial to view additional results
23 cases
  • Lembke v. Unke, No. 8486
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Octubre 1969
    ...not covered in the issues and not argued in the briefs, abandoned. See Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, 122 N.W.2d 151 (N.D.1963), Syllabus The first issue is whether the court erred in permitting the testator's attending physician to give his opinion as to Loui......
  • Agra-By-Products, Inc. v. Agway, Inc., AGRA-BY-PRODUCT
    • United States
    • United States State Supreme Court of North Dakota
    • 29 Marzo 1984
    ...Company of Dickinson, Inc. v. Kudrna, 194 N.W.2d 760 (N.D.1972); Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, Inc., 122 N.W.2d 151 2 Agra alleged that it sustained the following damage as a result of the fire: "[T]otal and partial losses to property ..., including a grain e......
  • Chicago, M., St. P. & P. R. Co. v. Johnston's Fuel Liners, Inc., No. 8059
    • United States
    • United States State Supreme Court of North Dakota
    • 29 Mayo 1963
    ...plaintiffs whose cases were consolidated with this case for trial. Regent Coop. Equity Exchange v. Johnston's Fuel Liners, Inc., N.D., 122 N.W.2d 151; C. W. Newby v. Johnston's Fuel Liners, Inc. v. Leonard Prince, N.D., 122 N.W.2d This case is, therefore, remanded to the trial court with in......
  • Krause v. State Farm Mut. Auto. Ins. Co., No. 37149
    • United States
    • Supreme Court of Nebraska
    • 25 Julio 1969
    ...insurer.' (Emphasis supplied.) In the quite recent case of Regent Co-operative Equity Exchange v. Johnston's Fuel Liners, Inc. (N.D.), 122 N.W.2d 151, the Supreme Court of North Dakota said as follows: 'Under the decision of this Court in the case of Farmers Insurance Exchange v. Arlt, N.D.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT