regarding his testimony, and that the instruction in this case is erroneous because it did not so inform the jury. In appellant’s brief it is stated that defendant’s counsel called the trial court’s attention to this omission, and that the trial court thereupon added the sentence at the end of the instruction, to wit, “That would be as to material points.” Conceding, without deciding, that the instruction is erroneous, it does not follow that the cause must be reversed.
It is true that ordinarily, where an erroneous instruction is given which might operate to the injury of the party who assails it, a presumption of prejudice arises; but it is equally true that when the error could work no injury to the complaining party the case will not be reversed by reason ‘thereof. In other words, a cause will not be reversed because an erroneous instruction has been given, where it appears from the record that the instruction could not have prejudiced the complaining party. See National Bank v. Lemke, 3 N. D. 154, 159, 54 N. W. 919, and authorities therein cited. The record in this case shows that the defendant could not possibly have been prejudiced by the language in which the instruction was couched, for whatever conflict there was in the evidence was upon material facts. Hence, the jury could not have found that any of defendant’s witnesses testified falsely upon any fact, unless it was upon a ‘material fact. So, upon the record in this case, the instruction could in no event be prejudicial. This disposes of all the errors assigned and argued on this appeal, and it follows from what has been said that the judgment appealed from must be affirmed.
Birdzell, Bronson, and Grace, JJ., concur.
Robinson, J. (dissenting). In this case the majority decision is strictly in accordance with the law as commonly administered. However, I am inclined to dissent from a decision which makes it unsafe for a man of means to be alone with a needy or adventurous woman. I also dissent from any verdict when it appears beyond doubt that it is clearly and grossly untrue. The verdict in this case is, for actual damages, $500, for punitive damages, $200. Now, on the testimony of the plaintiff herself it cannot be truly said that her actual damages amounted to $10, nor half of $10. She does testify that defendant pinched her arms so as to make black and blue spots, but on that she has no corroboration, and it is probably untrue. She does testify, in effect, that defendant forced his presence on her for half an hour from 8 to 8:30 p. m. by the watch. That
