In Allen v. Kleven, 306 N.W.2d 629, 634 (N.D. 1981), Allen, a passenger in a car driven by Williams, sued Kleven for injuries sustained in an accident involving the car driven by Williams and a car driven by Kleven. Allen's complaint did not request a jury trial. Kleven answered, alleging Allen's injuries were caused by the negligence of Allen and Williams. Kleven's answer requested a jury trial without specifying the number of jurors desired.
Rule 38(c), N.D.R.Civ.P., then provided a jury shall consist of six unless a request for a jury of twelve is made within the time for demanding a jury trial. Kleven later brought a third-party action against Williams, alleging Williams was negligent and seeking contribution if Kleven was found liable for Allen's injuries.
Williams' answer to Kleven's third-party action denied liability and requested a twelve-person jury. At a pretrial conference, Williams agreed to a trial by a six-person jury.
On appeal, Allen argued the trial court erred in allowing a six-person jury. Allen argued William's agreement to a six-person jury effectively withdrew Williams' demand for a twelve-person jury.
Allen claimed she did not consent to the withdrawal under N.D.R.Civ.P. 38(e), and she affirmatively objected. Williams and Kleven argued the issue about jury size was germane only to the third-party action.
They also argued Allen waived her right to object because she did not demand a jury trial. This Court considered the parties' arguments under the harmless error rule in N.D.R.Civ.P. 61, and concluded Allen's reasons for a twelve-person jury were conjectural and did not demonstrate the alleged error was prejudicial. Allen, 306 N.W.2d at 634.
The Court said the appealing party had the burden of establishing the trial court erred and the error was highly prejudicial. Id. The Court decided there was "nothing before us from which to conclude that if an error was made by the trial court when it allowed the jury to be reduced from 12 to six members, it was anything more substantial than harmless error." Id.