Jacobs v. Nelson

• Citation: 268 N.W. 873,67 N.D. 27
• Decision Date: 29 July 1936
• Docket Number: 6421
• Court: United States State Supreme Court of North Dakota

268 N.W. 873

67 N.D. 27

MARGARET JACOBS, Appellant, v. CARL H. NELSON, and F. H. Delger. CARL H. NELSON, Respondent

No. 6421

Supreme Court of North Dakota

July 29, 1936

Rehearing Denied September 24, 1936.

Syllabus by the Court.

1. Under the statutes of this state, chapter 184 of the Session Laws of 1931, a guest who accepts a ride in an automobile on the public highways of this state, and while so riding as a guest sustains an injury, has no right of recovery against the person responsible for the operation of the vehicle unless the guest shows that the injury resulted proximately from the intoxication, willful misconduct, or gross negligence of the person responsible for the operation of the vehicle, and the burden of proving such cause is upon the one asserting it.

2. Gross negligence consists in the want of such care or diligence as persons of ordinary prudence usually exercise about their own affairs of slight importance.

3. When negligence is shown and the issue centers on whether the degree is what is known as ordinary negligence or gross negligence, the burden of proof is upon the one who asserts gross negligence to show that the acts complained of are of that degree.

4. Despite the statutory division of negligence into degrees the care that will in a given case relieve a party from the imputation of gross negligence, or what omission of duty will amount to gross negligence, is primarily a question of fact and does not become a question of law, unless it is clear that but one conclusion can be drawn from the undisputed facts. If the undisputed facts are of such a nature that reasonable minds may differ as to whether the omission amounted to gross negligence or ordinary negligence, the question of the degree becomes a question for the jury.

5. Where, on the cross-examination of the plaintiff in a damage suit, it is sought to impeach him by the introduction of an instrument admittedly signed by the plaintiff and which contains statements at variance with the testimony given on the stand, the plaintiff on redirect examination may show the circumstances under which such instrument was signed and what was said as an inducing cause to obtain the signature. Where such testimony is pertinent and relevant to the issue, the fact that incidentally thereto damage may accrue to the cause of the party offering the instrument because of the suggestion that defendant may have carried liability insurance does not deprive the plaintiff of the right to show these statements and conditions.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Action by Margaret Jacobs against Carl H. Nelson and another. From an order granting a motion of the named defendant for a new trial after a verdict and judgment in favor of the plaintiff against the named defendant, the plaintiff appeals.

Order reversed and judgment reinstated.

Conmy & Conmy, for appellant.

Pierce Tenneson, Cupler, & Stambaugh, for respondent.

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

OPINION

BURR

The plaintiff was the guest of the defendant Nelson, riding in an automobile on the public highway. Her complaint states the defendant operated his automobile in such a wanton and grossly negligent manner that she was injured in a collision between this automobile and a truck driven by F. H. Delger, and also charges Delger with negligence.

The jury returned a verdict against the defendant Nelson for $ 11,250, upon which judgment was entered, and for Delger for dismissal of the action. Upon motion of the defendant Nelson for judgment notwithstanding the verdict or for a new trial, the judgment against him was set aside and a new trial ordered. From the order granting the new trial the plaintiff has appealed.

There are but two main issues in the case -- the sufficiency of the evidence to show gross negligence, and alleged error in the reception of testimony to the effect that Nelson carried liability insurance and that Delger had no insurance.

Where one suffers detriment from the unlawful act of another, he may recover from the person in fault compensation therefor in money, which is called damages, and for the breach of an obligation not arising from contract the measure of damages is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. Sections 7139 and 7165 of the Compiled Laws. This precludes accident and requires a showing of negligence on the part of the defendant.

Under the so-called "Guest Statute" of this State "Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of North Dakota, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. . . ." Sess. Laws 1931, chap. 184, § 1. Section 2 of the act, however, provides: "Nothing in this Act contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle; provided . . . the burden shall be upon the plaintiff to establish that such intoxication, wilful misconduct or gross negligence was the proximate cause of such death or injury or damage." Section 3 of the act defines "Guest" as "being a person who accepts a ride in any vehicle without giving compensation therefor."

In this case we are not concerned with the interpretation of the phrase "accepts a ride." It is admitted the plaintiff was a "guest" of the defendant Nelson.

The complaint in this case is sufficient to charge both "wilful misconduct" and "gross negligence" on the part of the defendant Nelson though mixed inextricably -- the principal theory being that of gross negligence.

Our statute, § 7283 of the Compiled Laws, defines "gross negligence" as consisting "in the want of slight care and diligence."

Section 7281 of the Compiled Laws defines "slight care or diligence" as "such as persons of ordinary prudence usually exercise about their own affairs of slight importance. . . ."

Section 7278 provides: "Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears and except also that the words hereinafter explained are to be understood as thus explained."

Section 7279 provides: "Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except when a contrary intention plainly appears."

As chapter 184 of the Session Laws of 1931 makes no attempt to define the term "gross negligence" or the term "wilful misconduct," the general statutory definitions apply.

This court has had occasion heretofore to consider the definition of the term "gross negligence," and in Farmers' Mercantile Co. v. Northern P.R. Co. 27 N.D. 302, 146 N.W. 550, we show that: "Gross negligence is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature. It is an omission of duty which is akin to fraud. It is the absence of even slight care."

In Schwager v. Anderson, 63 N.D. 579, 249 N.W. 305, we had occasion again to interpret the statutory definitions of the terms involved.

In both cases we show that under our law gross negligence consists in the absence of slight care or diligence, and in the latter case a clear distinction is drawn between gross negligence and ordinary negligence. In neither case, however, does this court intimate there never can be a case of gross negligence.

Under the statute there are the three classes of negligence -- gross, ordinary, and slight, and distinctly defined. This distinction intimates clearly that the grade of negligence is determined by the facts in the case and, as pointed out in the first case cited, "the question of negligence . . . is primarily and generally a question of fact for the jury. It becomes one of law, and is withdrawable from the jury only when but one conclusion can be drawn from the undisputed facts. If the undisputed facts are of such a nature that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury. Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Thomp. Neg. §§ 3790, 3791; Kundel v. Minneapolis, St. P. & S.S.M.R. Co. 18 N.D. 367, 121 N.W. 830; Rober v. Northern P.R. Co. 25 N.D. 394, 142 N.W. 22." 27 N.D. 302, at page 318, 146 N.W. 550.

The difficulty of determining the precise limitations of each degree is recognized by the Supreme Court of the United States. In The New World v. King, 16 How. 469, 472 14 L. ed. 1019, 1021, this court says: "The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general...