(concurring specially).
I wish to specially concur but with some elaboration.
This entire ease hinges on whether Flu-harty’s incoming checks from Midland were “loans” or “advances”.
The checks bore endorsements of Fluharty that they were “loans” subject to repayment on demand.
The endorsements on the checks were as follows: “This endorsement constitutes my acknowledgement of receipt of the amount of this check from Midland National Life Insurance Company of Watertown, South Dakota, as a loan, subject to repayment on demand, said amount to be charged to my account as an acknowledged indebtedness to the Company.”
These endorsements impaled Fluharty on the altar of debt.
The verdict of the jury in this case was exactly one-half, to the penny, of the amount sued for by Midland on its counterclaim. The amount sued for was $27,836. The verdict returned was for $13,918. This was obviously a compromise verdict.
It is always a mystery as to how a jury arrives at a verdict. However, it appears to me that this compromise verdict was arbitrarily rendered. My assumption is based on the record. It is a rare bird in a jury trial when a defendant and his lawyer are not in the courtroom during the course of the trial. The defendant, Steinberg, and *351his lawyer never appeared in the courtroom. Fluharty and Steinberg were both sued. They were sued as follows: “M. Ted Stein-berg, Larry G. Fluharty, individually, and M. Ted Steinberg and Larry G. Fluharty, d/b/a Agri Estates, Inc.”. The jury was submitted two verdict forms, one stated VERDICT FOR PLAINTIFF and the other stated VERDICT FOR DEFENDANT. The foreman signed the VERDICT FOR DEFENDANT, which stated as follows: “We the Jury duly empanelled in the above-entitled action and sworn to try the issues find for the defendant and assess defendant’s damages at the sum of $13,918.” I am of the opinion that the jury awarded one-half of the damages upon the basis that Fluharty should only pay one-half and no more. This verdict was not supported by the evidence or instructions. The nonpres-enee of Steinberg, in my opinion, confused the jury. However, I hasten to point out in court instructions 9 and 11 the trial judge made it apparent to the jury that Steinberg and Fluharty were being sued as parties to the action both individually and doing business as Agri Estates, Inc.
After the loan checks had been proven up in this case establishing Steinberg’s and Fluharty’s joint and several liability, Flu-harty had the burden of proving any offsets or payments and no evidence of any substance was offered on Fluharty’s part to raise any issues with respect to these loan checks, or to controvert the evidence of Midland that the balance due was $27,836. Accordingly, I would hold that the lower court was right in granting the Judgment Notwithstanding the Verdict.
For an interesting and recent case on this subject, which I cite with approval, see United American Life Insurance Company v. Urman, Colorado, 495 P.2d 1158 (1972), which generally holds that an agent is personally bound to repay loans without regard to commissions or advances, depending upon the contract in existence between the agent and insurance company.
A good example of a situation where a directed verdict is called for or Judgment Notwithstanding the Verdict should be entered, is found in National Bank of Commerce v. Bottolfson, 55 S.D. 196, 225 N.W. 385, 69 A.L.R. 892 (1929). In that particular case, there was no affirmative testimony as to the amount unpaid on a note and there was no showing otherwise. In this particular case, Fluharty did not plead, nor prove, payment. The jury accepted the accounting of Midland to the penny, for the verdict was exactly one-half of what the accounting showed.
Fluharty by assignment of error and by way of brief, urges that the lower court’s ruling was nothing more than an unconstitutional substitution of its opinion for the jury’s opinion about a fact question. He cites Article VI, Section 6, of the South Dakota State Constitution and the Seventh Amendment to the United States Constitution.
This argument begs the issue of whether or not a court can make determinations of law during the course of the trial that takes away the ultimate determination of the jury and particularly where a jury has rendered a verdict.
Our state statute on motions for Judgment Notwithstanding the Verdict is found at SDCL 15-6-50(b). It is identical to 50(b) of the Federal Rules of Civil Procedure. Technically, Rule 50(b) allows a party to renew his motion for a directed verdict. Federal Rule 50 was amended in 1963 so that the caption of the rule now speaks of “Judgment Notwithstanding the Verdict”. Prior to 1963, the federal rules had not used that term.
The constitutionality of Federal Rule 50 is thoroughly settled. Thus, the decisions with respect thereto are applicable to our rule, SDCL 15-6-50(b). According to the rules of common law, the right to a jury trial was preserved by the Seventh Amendment to the Constitution. The common law has the well-established principle that although questions of fact must be decided by the jury and may not be reexamined by the court, the question as to whether or not there is sufficient evidence to raise a question of fact to be presented to the jury is a question of law to be decided by the court. *352Taylor v. Interior Enterprises, Inc., Alaska, 471 P.2d 405, 407 (1970).
As early as 1850 our United States Supreme Court approved the grant of a directed verdict, Parks v. Ross, 52 U.S. 362, 13 L.Ed. 730 (1850). Although there was considerable controversy about the propriety and practice of granting a directed verdict, it appears that this was resolved in 1943 in the case of Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943). The waters have not been so smooth with respect to Judgments Notwithstanding the Verdict throughout contemporary judicial times. In the case of Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913), our United States Supreme Court held that the entry of judgment contrary to the verdict was a violation of the Seventh Amendment. However, this was largely qualified in 1935 in the case of Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935). In the latter case, the trial judge had expressly reserved his decision on motions for directed verdict and had submitted the case to the jury subject to the reservations. However, in the Slocum case, the judge had unconditionally submitted the case to the jury. This was the distinguishing factor. It is to be noted that in the instant case before us that a motion for a directed verdict had been made, the reasons set forth in particularity and that the judge submitted the case to the jury with the motion for directed verdict by Midland. Under Federal Rule 50(b) and our state statute, SDCL 15-6-50(b), the rule now provides:
Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. (Emphasis added.)
The United States Supreme Court has approved this practice under Rule 50(b). Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940).
The power of the court to withdraw cases from the jury in a case such as this appears to be firmly rooted in history and tradition.
Therefore, I must conclude that the trial court’s decision to grant a Judgment Notwithstanding the Verdict did not violate Fluharty’s constitutional right to a jury trial as set forth in Article VI, Section 6, of the South Dakota State Constitution and the Seventh Amendment to the United States Constitution.