Skjonsby v. Ness

• Decision Date: 14 June 1974
• Docket Number: No. 9001,9001
• Citation: 221 N.W.2d 70
• Parties: Joe SKJONSBY, Plaintiff/Appellant, v. Joyce M. NESS, Defendant/Appellee. Civ.
• Court: North Dakota Supreme Court

Page 70

221 N.W.2d 70

Joe SKJONSBY, Plaintiff/Appellant, v. Joyce M. NESS, Defendant/Appellee.

Civ. No. 9001.

Supreme Court of North Dakota.

June 14, 1974.

Rehearing Denied Aug. 26, 1974.

Syllabus by the Court

1. The charging of thievery and other crimes constitutes slander per se. Damages are therefore presumed, and considering the question of the insufficiency of the evidence on appeal from the order denying the judgment notwithstanding the verdict, it must be considered in the light most favorable to the verdict of the jury.

2. The function of this court on an appeal asserting excessive damages is to review the ruling of the trial court, and review is limited to a determination of the question of whether the trial court abused its discretion and thereby effected an injustice.

3. The amount of damages allowed for slander is primarily a matter for the jury in the exercise of its sound discretion.

4. Statements charging thievery and other crimes, being slanderous per se, justified the jury in finding both actual and punitive damages.

5. The controlling functions of a jury are to admeasure damages where the law has afforded no standard.

6. Where different conclusions may reasonably be drawn by different minds from the same evidence, the question is ordinarily one for the jury.

7. Where the amount of damages claimed by either party is uncertain and based upon opinion, then it is entirely within the province of the jury to find the amount of damages. In such a case it is an invasion of the province of the jury for the court to direct the finding of a certain amount.

8. The mere fact that a verdict for damages is excessive does not indicate 'passion or prejudice' on the part of the jury.

9. The verdict as rendered by the jury was well within the exercise of sound discretion. To hold otherwise would be to deny the plaintiff the right to trial by jury.

Johnson, Milloy, Eckert & Johnson, Wahpeton, and Lanier, Knox & Olson by P. W. Lanier, Jr., Fargo, for plaintiff/appellant.

Nilles, Hansen, Selbo, Magill & Davies by John Michael Nilles, Fargo, for defendant/appellee.

CLIFFORD JANSONIUS, District Judge, retired; now Supreme Court Commissioner.

The legal issue in this case arises by virtue of an order of the trial court reducing a jury verdict or, in lieu thereof, granting a new trial. The main issue, therefore, is whether the trial court was justified in reducing the verdict or if such reduction amounted to an abuse of the court's discretion. The pertinent part of the order reads as follows:

'It is hereby ordered that the motion of the defendant for judgment notwithstanding the verdict is denied and that the motion of the defendant for a new trial is granted, unless the plaintiff accepts the following judgment.

'Five hundred dollars ($500.00) actual damage, two thousand dollars ($2,000.00) punitive damages, or a total award of two thousand five hundred dollars ($2,500.00), together with costs. The plaintiff to file statement of remission of the excess of the award with the court within thirty days of plaintiff's receipt of the court's memorandum opinion. Upon failure of plaintiff to comply with these conditions and within the time limit above set forth, a new trial will be had with costs to abide the outcome.'

The parties to this lawsuit are brother and sister. The parents are still living and for many years the plaintiff, Joe Skjonsby, remained on the farm, assisting his father with the farming operations. Subsequently Joe Skjonsby rented land which he also operated. During the several years prior to 1970 and continuing through the cropping season of 1970 Joe apparently did all the farming, handling his father's land on a one-third, two-thirds lease arrangement.

The record indicates that certain property transfers and joint tenancy transactions became known to Joe Skjonsby, these transactions involving the parents and the defendant, Joyce M. Ness. Joe Skjonsby then petitioned the court, asking that a guardian be appointed for the father, contending that he was not mentally competent to make decisions. This proceeding, which involved claims and counterclaims, was not concluded in court, a settlement having been effected and a stipulation entered into wherein it was agreed that the father was incompetent and should have a guardian. The claims which had been made against the plaintiff, Joe Skjonsby, were dismissed in this settlement with prejudice.

The present action is brought on a claim that the plaintiff has sustained damages because of alleged slanderous statements made by the defendant, Joyce M. Ness. The first paragraph of the complaint reads:

'That defendant, maliciously intending to injure the good name and character of the plaintiff and to cause it to be believed that plaintiff had been guilty of crime of theft and embezzlement, has repeatedly pursued a deliberate course, in the presence and hearing of diverse good people, falsely and maliciously spoken and published of and concerning plaintiff false, scandalous, and malicious words to the following substance and effect: That 'Joe Skjonsby is a thief'; 'Joe Skjonsby has repeatedly stolen from his father's estate'; 'Joe Skjonsby has repeatedly stolen from his mother and all of the rest of the family'; 'Joe Skjonsby is a crook.'

The answer of the defendant was a general denial. The determination of the jury resulted in the plaintiff recovering a verdict for 'actual damages for defamation of character in the sum of Five Thousand Dollars ($5,000.00), exemplary damages for injury to person through oppression, fraud or malice in the sum of Twenty Thousand Dollars ($20,000.00), for a total of $25,000.00.' Judgment was entered accordingly.

The defendant moved for judgment notwithstanding the verdict or for a new trial in accordance with Rule 59 of the North Dakota Rules of Civil Procedure. Numerous reasons and grounds were set forth in the motion, and the specifications of error go both to the law and the sufficiency of the evidence. The trial court, in its memorandum opinion required by Rule 59(f), disposed of each contention against the defendant except the matter of the amount of the verdict. The following portion of the memorandum opinion is pertinent to the facts involved:

'Defendant's motion for a new trial based on the insufficiency of the evidence to justify the jury award and that the total damages awarded were excessive and appeared to be given under the influence of passion and prejudice (has) limited merit. The Court has the authority to deny a motion for judgment n.o.v. and grant a motion for new trial. Linington v. McLean County, 146 N.W.2d 45 (N.D.1966).

'In the instant case, the testimony at the trial shows that Defendant did make statements to others stating specifically or inferring that Plaintiff was either stealing from or cheating his parents. These statements were made to Plaintiff's son and at least two other persons who testified at the trial. All of these witnesses stated that they didn't believe the statements. A charge of thievery or the commission of a crime is slander per se and actual damages presumed. Moen v. Moen, (65 N.D. 40,) 256 N.W. 254 (N.D.1934).'

On appeal the parties have accepted the fact that the issues before the Court are:

1. Should the trial court have entered judgment notwithstanding the verdict in favor of the plaintiff as contrary to the weight of the evidence?

2. Did the trial judge manifestly abuse his discretion in granting a new trial, or requiring a reduction in the verdict from $25,000.00 to $2,500.00?

In connection with the question of whether or not a new trial should have been granted, the defendant contends that 'the alleged slanderous statement made by Joyce Ness is subject to a qualified privilege.'

The defendant contends that our statute, N.D.C.C. Sec. 14--02--05, in part, defines privileged communications as follows:

'A privileged communication is one made:

3. In a communication, without malice, to a person interested therein by one who also is interested.'

North Dakota Century Code.

Moen v. Moen, 65 N.D. 40, 256 N.W. 254 (1934), disposes of that contention when is states that the charging of thievery and other crimes constitutes slander per se. Damages are therefore presumed, and considering the question of the insufficiency of the evidence on appeal from the order denying the judgment notwithstanding the verdict, it must be considered in the light most favorable to the verdict of the jury. The facts preclude a challenge to the finding of the jury, as the evidence is sufficient to sustain such finding, and it cannot be disturbed on motion or on appeal. Willard v. Owens, 164 N.W.2d 910 (N.D.1969); Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352 (N.D.1968); Johnson v. Frelich, 153 N.W.2d 775 (N.D.1967); Mikkelson v. Risovi, 141 N.W.2d 150 (N.D.1966); Larson v. Meyer 135 N.W.2d 145 (N.D.1965); Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803 (1941); La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W 476 (1939).

There is no argument or dispute as to the right of the trial court to reduce the damages or in lieu thereof grant a new trial if the verdict is deemed excessive and such excessiveness results from passion and prejudice on the part of the jury. The grounds for a new trial are governed by N.D.R.Civ.P. 59(b)5, which reads as follows:

'Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

'5. Excessive damages appearing to have been given under the influence of passion or prejudice, but when a new trial is asked for on this ground and it appears that the passion and prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the trial court, on hearing the motion, and the supreme court, on appeal, shall...