Posey v. Krogh

Decision Date20 December 1934
Docket Number6300
Citation259 N.W. 757,65 N.D. 490
CourtNorth Dakota Supreme Court

Original Opinion of December 20, 1934, Reported at 65 N.D 490. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Burr, J. Burke, Ch. J., and Nuessle, Morris, and Christianson, JJ., concur.

OPINION
BURR

(On rehearing.) Respondents' petitions for rehearing were granted -- respondents claiming that in case an affirmance of the judgments could not be had, new trial should be allowed rather than dismissals of the actions.

The complaints show the claims are predicated entirely upon the theory that the car was a family purpose car, furnished by defendant and being used for the purposes for which it was furnished. The "guest" theory was advanced by respondents on appeal -- the respondents, in the opening sentence of their brief in this court saying "these two cases arise out of the same automobile accident and they are 'Guest' cases."

The car was owned by the defendant. She purchased it for her own use, and also permitted her father and the members of his family to use it. They could use it for their own business or pleasure and they could take their friends with them, if they saw fit. The plaintiffs were not the "guests" of the defendant. They were the "guests" of her brother, who was driving the car. She was not with them, nor did she know of this part of the trip until after the accident. This is plain. As pointed out in the main opinion the brother had been delegated by his father to go to Jamestown to get supplies, and with the express or at least tacit consent of the defendant used her car. While in Jamestown he met the plaintiffs and having some time to spare took the girls on a pleasure trip. On this trip the accident occurred. The relationship of master and servant, or that of principal and agent did not exist between defendant and her brother. It is the general rule that liability for the negligent use of an automobile by one other than the owner cannot be predicated against the owner merely because of his ownership of the car, it not being a dangerous instrumentality in itself. Decker v. Hall, 72 Ind.App. 139, 125 N.E. 786; Mitchell v. Van Keulen & W. Lumber Co. 175 Mich. 75, 140 N.W. 973; Saums v. Parfet, 270 Mich. 165, 258 N.W. 235; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A.1918C, 715, Ann. Cas. 1918E, 1127; Clawson v. Schroeder, 63 Mont. 488, 208 P. 924; Doran v. Thomsen, 74 N.J.L. 445, 66 A. 897; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785, 17 N.C.C.A. 427; Ouelette v. Superior Motor & Mach. Works, 157 Wis. 531, 147 N.W. 1014, 52 L.R.A.(N.S.) 299, 6 N.C.C.A. 357. This is the rule even in cases where one member of the family loans his car to another, where the situation creating the family car doctrine does not apply. Haskell v. Albiani, 245 Mass. 233, 139 N.E. 516; Blair v. Broadwater, 121 Va. 301, 93 S.E. 632, L.R.A.1918A, 1011; Warren v. Norguard, 103 Wash. 284, 174 P. 7; Jones v. Cook, 90 W.Va. 710, 111 S.E. 828. One may say this rule is almost universal for in the Canadian Provinces we find the same rule applies. See Lane v. Crandall, 5 Alberta L.R. 42, 10 D.L.R. 763. Such is also the rule where an owner allows an employee to use his car for the employee's own pleasure or business. See Jones v. Strickland, 201 Ala. 138, 77 So. 562, 564; Gousse v. Lowe, 41 Cal.App. 715, 183 P. 295; Fielder v. Davison, 139 Ga. 509, 77 S.E. 618; Toadvine v. Sinnett, 104 Kan. 111, 178 P. 401; Gardner v. Farnum, 230 Mass. 193, 119 N.E. 666, L.R.A.1918E, 997; Hill v. Haynes, 204 Mich. 536, 170 N.W. 685; Provo v. Conrad, 130 Minn. 412, 153 N.W. 753; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A.(N.S.) 382, 19 Ann. Cas. 1227. The rule is applicable also where the loan creates the situation of bailor and bailee. Gates v. Pendleton, 184 Cal. 797, 195 P. 664, 665; Menton v. L. Patterson Mercantile Co. 145 Minn. 310, 176 N.W. 991; Ludberg v. Barghoorn, 73 Wash. 476, 131 P. 1165.

The guest statute of this state limits the liability of appellant to her own gross negligence. In Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55, 57, the term "gross negligence" as used in the guest statute is interpreted to mean "such a degree of recklessness as approaches wanton and wilful misconduct." See also Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851; Willett v. Smith, 260 Mich. 101, 244 N.W. 246.

As to the Nebraska statute, limiting the liability of owner in guest cases to cases of gross negligence, the court defined the term "gross negligence" to mean "negligence in a very high degree, or absence of even slight care in performance of duty." Morris v Erskine, 124...

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