Bjerke v. Heartso
| Decision Date | 19 January 1971 |
| Docket Number | No. 8596,8596 |
| Parties | Clarine BJERKE, Plaintiff and Respondent, v. Harry V. HEARTSO and John F. Heartso, as Co-Administrators with the WillAnnexed of the Estate of Howard Heartso, Deceased, and Richard Lysne, asAdministrator of the Estate of Orvin B. Lysne, also known as Orvin Lysne,Deceased, Defendants andAppellants, Great Plains Supply Company, a corporation, Defendant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Upon trial de novo on appeal, findings of the trial court will be accorded appreciable weight but are not binding upon Supreme Court.
2. Where court is presented with a case it may decide, but some issue is within the competence of an administrative body, it is proper to refer such issue to the adminitrative it is proper to refer such issue to the administrative
3. A court is free to decide questions it normally would refer to an administrative agency, when, through passage of time, such agency has lost jurisdiction.
4. The standards for testing whether an injury is suffered in the course of employment are: (1) Does the injury occur within the period of employment; (2) Does it occur in a place where the employee may reasonably be; and (3) Does it occur while he is reasonably fulfilling the duty of his employment? All these must concur under the circumstances.
5. Under the guest statute, the burden is upon the plaintiff to establish that intoxication, willful misconduct, or gross negligence was the proximate cause of death, injury, or damage.
6. Evidence of mental attitude is necessary to establish gross negligence.
7. The term 'gross,' as applied to negligence of a motorist in an action brought by an automobile guest, has reference to the mental attitude of the motorist in regard to the consequences he should have foreseen, and implies such gross recklessness as shows indifference to the consequences.
8. '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 willful in its nature.
9. Circumstantial evidence will not suffice to prove gross negligence except where the circumstances are inconsistent with any other theory.
10. Where the inferences to be found in circumstantial evidence support a theory of ordinary negligence equally as well as one of gross negligence, then gross negligence fails.
11. The law presumes that a person is innocent of wrong, that he has obeyed the law, and that he has acted with proper care for his own concern.
12. The law, out of regard to the instinct of self-preservation, will presume, prima facie, that a person who has suffered death by accident was exercising ordinary care and diligence.
13. The course chosen in imperative haste by one confronted with a sudden emergency must be given every charitable consideration.
14. Negligence should not be imputed to a motorist because of what he does when confronted with a sudden, unanticipated emergency.
Foughty, Christianson, Thompson & Rutten, Devils Lake, for plaintiff and respondent.
Duffy & Haugland, Devils Lake, for defendants and appellants Heartso.
Letnes & Marshall, Grand Forks, for defendant and appellant Lysne.
On a clear, quiet morning in January of 1968, on an open stretch of highway near Devils Lake, two cars met at the center of the road in a violent head-on collision. The lives of all three occupants of the vehicles were lost.
This lawsuit is an outgrowth of that Tragic event. The widow of the sole passenger has sued the estates of both drivers to recover for the wrongful death of her husband. She has charged each driver with negligent conduct. The corporate employer of one of the drivers also has been made a party defendant.
A jury was waived. The trial court dismissed the corporate employer, but found both drivers at fault and awarded judgment against their estates in the sum of $95,959.45, with costs in the amount of $106.80, making a total judgment of $96,066.25. That determination has been brought to this court with a request for a trial de novo.
The record before us shows that the plaintiff's deceased husband, Gordon Bjerke, was an employee of the defendant Great Plains Supply Company at the branch lumber yard in Devils Lake. His home was in Churchs Ferry, some twenty miles west of Devils Lake.
After concluding his usual workday on Friday, January 19, 1968, Bjerke stayed at the shop. He continued to work on his own account, building tables for a personal client. He worked late. At 1 a.m., he quit and went to the Two-Spot Cafe. There he joined a group of fellow employees, including Orvin Lysne, the man fated to drive him to his death later that day. Lysne was the local branch manager of Great Plains. He had spent the entire evening at a local tavern. While there, he had consumed ten to twelve drinks and quite obviously was under their alcoholic influence.
The group of four men spent the rest of the night at the cafe, where they shared the contents of a 'fifth' of Rock and Rye liquor. Shortly before 8 a.m., they went to the Great Plains Supply Company. Testimony indicates that Lysne still was somewhat under the influence of alcohol. He and Bjerke remained only briefly at the lumber yard. Taking Lysne's car, they drove to Bjerke's home in Churchs Ferry, where they remained about an hour and a half, visiting with Mrs. Bjerke and consuming copious amounts of coffee. Shortly after 10 a.m., they started back east toward Devils Lake.
Howard Heartso was the driver and sole occupant of the other ill-fated vehicle. He had visited his tax accountant that morning. At about 10:30 a.m., he left and drove west on U.S. Highway No. 2.
At a point 1 1/2 miles west of Devils Lake, the two cars collided. There were no surviving eyewitnesses. Heartso and Bjerke were killed outright. Lysne, grievously injured, was unable to talk before he, too, was claimed by death. We therefore are left with only circumstantial evidence to tell what happened.
Debris and gouges in the blacktop surface put the point of impact near the center of the road. Each vehicle therefore was encroaching somewhat upon the other's lane of travel. That the vehicles met apace, and almost squarely head-on, is attested by the nature and enormity of the damage. Perhaps the most articulate clue at the scene was a tire mark arriving at the point of impact from the direction of travel of the Lysne car. The continuous mark, 198 feet long, originated at the north shoulder of the road, coursed across Heartso's lane of travel toward the center, and terminated abruptly at the scene of impact. In this stark portraiture lies the irresistible connotation that Lysne, driving on the wrong side of the road, attempted to turn suddenly to his own lane and at midpoint was intercepted by the Heartso vehicle.
With points conceded by the parties aside, there are but three basic issues: (1) Was Bjerke acting outside the orbit of his employment at the time he met his death? (2) Does the evidence establish negligence on Heartso's part? (3) Does the evidence show that Lysne was grossly negligent?
The trial court answered each of these questions in the affirmative. Upon trial de novo, such findings are not binding on this court. Frederickson v. Hjelle, 149 N.W.2d 733, 744 (N.D.1967). They will, however, be accorded appreciable weight. Matteson v. Polanchek, 164 N.W.2d 54, 55 (N.D.1969); Verry v. Murphy, 163 N.W.2d 721, 727 (N.D.1969).
The plaintiff widow, apparently confident that Bjerke was acting outside the scope of his employment at the time of the accident, elected not to file a claim for Workmen's Compensation benefits. She brought this lawsuit instead. Two of the defendants, Great Plains and the Lysne estate, nevertheless insist that there is a question of Workmen's Compensation coverage. If there was such coverage on the fatal trip, this suit cannot survive against either the defendant employer or the fellow employee, Lysne. Such actions are abolished by the Workmen's Compensation Act.
These two defendants further maintain that the question of coverage is exclusively for the Workmen's Compensation Bureau to resolve. We disagree. A wrongful-death action certainly is cognizable, in the first instance, in the district court, and upon trial de novo, here. Merely because the case incidentally has a Workmen's Compensation question in it does not oust the courts of jurisdiction.
We do concede, however, that questions of Workmen's Compensation coverage normally should be resolved by the Workmen's Compensation Bureau. Whenever a lawsuit generates an issue that pertains to an administrative agency's area of primary jurisdiction, it is well for the court to refer that issue to the agency.
'If the court is presented with a case it can decide but some issue is within the competence of an administrative body, in an independent proceeding, to decide, comity and avoidance of conflict as well as other considerations make it proper to refer that issue (to the administrative body).' Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951).
In this case, however, the opportunity for referral to the Bureau no longer exists. The permissible period for filing a claim based on Bjerke's death has long since passed. The Bureau has lost jurisdiction. Schmidt v. N. D. Workmen's Comp. Bureau, 73 N.D. 245, 13 N.W.2d 640, 615 (1944). All reasons that otherwise might impel us to stay our hand have lost their force. We are entirely free to determine Bjerke's Workmen's Compensation status at the time of his death.
Workmen's Compensation coverage is dependent upon whether an injury occurs 'in the course of employment.' The standards for testing whether injury is suffered in the course of employment are...
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