Belgarde v. Rosenau, 11116

• Decision Date: 06 June 1986
• Docket Number: No. 11116,11116
• Citation: 388 N.W.2d 129
• Parties: Cindy BELGARDE, Plaintiff and Appellant, v. Lorenz ROSENAU and the Winona Monument Company, a foreign corporation, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 129

388 N.W.2d 129

Cindy BELGARDE, Plaintiff and Appellant, v. Lorenz ROSENAU and the Winona Monument Company, a foreign corporation, Defendants and Appellees.

Civ. No. 11116.

Supreme Court of North Dakota.

June 6, 1986.

Chapman & Chapman, Bismarck, and Swain Benson, Bottineau, for plaintiff and appellant; argued by Charles L. Chapman.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendants and appellees Winona Monument Co.; argued by Curtis L. Wike.

LEVINE, Justice.

Cindy Belgarde appeals from a district court judgment dismissing her action against Winona Monument Company [Winona]. We reverse and remand for trial.

Shortly after Belgarde's husband died in 1978, she purchased a grave headstone from Lorenz Rosenau, a Winona dealer. Belgarde was to make $100 monthly payments to pay for the $686 headstone. Belgarde received billing statements directly from Winona, but made the payments to Rosenau. A dispute arose over the payments, with Belgarde claiming that she had made full payment and Rosenau claiming that Belgarde still owed $200. Belgarde submitted proof of payment to Winona, and Winona contacted Rosenau in an unsuccessful attempt to clear up the discrepancy. Sometime prior to January 1981, Rosenau removed the headstone from Belgarde's husband's grave.

Belgarde commenced this action against Rosenau and Winona, claiming, in effect, conversion of the headstone and infliction of emotional distress. Winona moved for summary judgment, alleging that Rosenau was an independent contractor and that it therefore was not vicariously liable for Rosenau's actions. The district court granted summary judgment dismissing Belgarde's action against Winona.

The sole issue presented on appeal ¹ is whether genuine issues of material fact exist which preclude summary judgment.

Summary judgment should be granted only if, after viewing the evidence in the light most favorable to the party against whom summary judgment is sought, it appears that there is no genuine issue as to any material fact and that the party seeking summary judgment is entitled to it as a matter of law. Allegree v. Jankowski, 355 N.W.2d 798, 800 (N.D.1984). Summary judgment is not appropriate if reasonable differences of opinion exist as to the inferences to be drawn from undisputed facts. Allegree v. Jankowski, supra, 355 N.W.2d at 800.

It is well settled that the existence of an agency relationship is a question of fact. E.g., Dunseith Sand & Gravel Co. v. Albrecht, 379 N.W.2d 803, 805 (N.D.1986); Johnson v. Production Credit Association of Fargo, 345 N.W.2d 371, 376 (N.D.1984); Pfliger v. Peavey Co., 310 N.W.2d 742, 745 (N.D.1981). However, where the evidence on agency is such that reasonable minds could draw but one conclusion, the question of fact becomes a question of law and summary judgment may be appropriate. Johnson v. Production Credit Association of Fargo, supra, 345 N.W.2d at 376.

Winona contends that the evidence in this case leads to only one conclusion: that Rosenau was not its agent. In support of this contention, Winona relies upon the agreement it entered into with Rosenau in 1957, which provides: "The parties hereto further expressly understand and agree that the relationship between them shall be that of independent contract and that the dealer is not an employee of the Company...."

We reject Winona's contention that its agreement with Rosenau is dispositive of the...