concurring in result.
The failure of the plaintiff to clearly set forth the legal theory of its cause of action, the trial court’s reliance on Chapter 51-12 prohibiting false advertising to award damages for the actions of the defendants without consideration of whether that chapter created a cause of action for the plaintiff, and the majority’s rather expansive approval thereof cause me to write separately.
Although violation of a statute may be both a crime and a tort, it is simplistic to observe there may be both a civil tort action and a criminal prosecution for the same act. As an example, Dahlen v. Landis, 314 N.W.2d 63 (N.D.1981), cited by the majority does not discuss that issue directly, but the facts of that case simply are that Landis was sued for assault and battery and the issue was whether or not his plea of guilty to the criminal charge of simple assault should have been admitted into evidence in view of the deferred imposition of sentence and subsequent dismissal of the charges pursuant to Section 12-53-18. Presumably it was cited to illustrate there may be both a criminal and civil action arising out of the same circumstance. But that is not novel and sheds little light on the issue before the court. Significantly, the plaintiff, Dahlen, did not rely on a statute for his civil cause of action presumably because it is apparent that such a cause of action existed at common law and requires no statute to authorize it. Nor is it helpful to observe that the violation of a statute or ordinance may be considered as evidence of negligence. None of the parties has contended this is a negligence action and it certainly was not tried as a negligence action but rather FWHO contended the defendants embarked on an intentional course of action to mislead FWHO’s customers.
If the action concerned the award of damages to “Jane Doe,” one of the plaintiffs and a customer of FWHO, the issue of the nature of the cause of action would be relatively simple, for “the making of un*687true and fraudulent statements may constitute the criminal offense of false advertising, or subject the offender to civil liability for fraud and deceit.” [Emphasis mine.] 3 Am.Jur.2d Advertising, § 3 (1986). But in order to recover for the common-law action of fraud and deceit, the plaintiff “must be a person falling within the purview of those who were intended to act upon the representations, whether made directly or indirectly, and, as a corollary, one who had a right to rely upon the acts of which complaint is made. Moreover, any person, in order to secure redress, must show the fact of reliance and that the asserted fraud has occasioned damage to him personally, ...” 37 Am.Jur.2d Fraud and Deceit, § 296 (1968). FWHO does not, of course, meet those requirements and must rely on either common-law authority for its action or, if there is no common-law action, statutory authority for its cause of action. By the time of the trial on damages “Jane Doe” apparently did not participate, and the jury instructions and the special jury verdict form indicated that only FWHO was the plaintiff.
Absent clear legislative direction to the contrary,11 do not believe that every Act of the Legislature which is violated does or should result in a private cause of action, where none existed at common law, particularly when other remedies for the violation thereof are provided by the legislation such as in this instance in which both criminal action and injunctive action are specified remedies. Secs. 51-12-13 and 51-12-14, N.D.C.C. I would not, therefore, conclude as does the majority opinion that a violation of those statutes, standing alone, creates a private cause of action for damages.
If FWHO is entitled to damages for the defendants’ actions I believe it would be as a result of an action recognized at common law, wrongful interference with business or occupation. See 86 C.J.S. Torts, § 54 (1954). It might be questioned whether such a common-law cause of action exists in North Dakota in light of the initial opinion in Fox v. Higgins, 149 N.W.2d 369 (N.D.1967), wherein the court held that a complaint which alleged separate and dissimilar wrongful acts of arson, champerty, assault and battery, and others, extending over a period of 12 years, did not allege a continuing tort which would support recovery of damages for interference with the plaintiffs business as a farmer. The court dismissed the action because the statute of limitations had run from the time of the commission of each wrongful act. Language in that opinion could lead the reader to the conclusion the courts of this State do not recognize such a common-law tort. However, in the opinion on petition for rehearing the court clarified its opinion, stating:
“Our decision does not, as contended by the plaintiff, mean that no right of action exists in this State for interference with business or trade. All that we do hold is that the pleading of the plaintiff and the evidence which he produced in this case do not constitute or prove such a tort.” Fox v. Higgins, supra, 149 N.W.2d at 372.
Although I do not believe the Legislature intended to create a private cause of action for violation of the false-advertising statutes when it enacted Chapter 51-12, neither do I believe that such enactment with its criminal and injunctive remedies was intended to displace the common-law tort of wrongful interference with business.
We are to construe complaints liberally so as to do substantial justice. E.g., Jablonsky v. Klemm, 377 N.W.2d 560 (N.D.1985). In the case before us a liberal construction of the complaint would support a cause of action for wrongful interference with business or trade as a result of the false advertising. That was not, however, how the trial court viewed it for at the pretrial conference the trial court stated that “the Court is of the opinion that the issue before the Court is only whether there has been a violation of the advertis*688ing statute and whether there was damages as a result of the violation of that advertising statute ...” Furthermore, both the instructions to the jury and the special jury form were predicated on a violation of the false-advertising statutes. I therefore considered that I should dissent and urge that the judgment be reversed and remanded for a new trial with instructions and a jury form which tells the jury that the action is for wrongful interference with FWHO’s business as a result of the alleged false advertising rather than for a per se violation of the false-advertising statutes. I do not do so because the distinction is so technical and the evidence is such that it would not alter the result. Defendants, perhaps recognizing the proper cause of action, argue there is no evidence of interference with business, but my reading of the record indicates that the advertising did, as intended, create confusion among FWHO’s customers, and that FWHO’s expenditures to correct that confusion were reasonable. I do not agree with the defendants that FWHO must wait until damage has occurred to its business and recover only for that damage. Once the confusion caused by the advertising was established and once FWHO’s potential customers became, at least temporarily, customers of FM Women’s Help and Caring Connection, FWHO was entitled to counteract the false advertising to avoid future damage to its business. The jury was instructed that “It is the duty of a person who has been injured in his property to exercise ordinary care to avoid loss or minimize the resulting damages” and that if “the injured person reasonably expends goods or services while exercising ordinary care to avoid or minimize consequences of the wrong, he is entitled to recover the reasonable value of the goods and services expended, ...” That is “good law" in North Dakota. Smith v. Watson, 406 N.W.2d 685 (N.D.1987).
If I believed the distinctions I have drawn herein would make a difference in the award of damages, I would dissent. I am not convinced they would and this case has been protracted enough. I concur in the result reached by the majority opinion but not in the opinion itself.
. When the Legislature intends a private cause of action to vindicate its legislative mandates it has expressly so stated. Compare Sec. 47-22-11, N.D.C.C. [civil action by owner for infringement of trademark specifically authorized].