La Bree v. Dakota Tractor & Equip. Co.

• Decision Date: 18 November 1939
• Docket Number: No. 6620.,6620.
• Citation: 288 N.W. 476,69 N.D. 561
• Court: North Dakota Supreme Court
• Parties: LA BREE v. DAKOTA TRACTOR & EQUIPMENT CO.

69 N.D. 561

288 N.W. 476

LA BREE

v.DAKOTA TRACTOR & EQUIPMENT CO.

No. 6620.

Supreme Court of North Dakota.

Oct. 11, 1939.

Rehearing Denied Nov. 18, 1939.

Syllabus by the Court.

1. Judgment notwithstanding the verdict may not be ordered when there is evidence on the issues in dispute requiring a submission of the matter to the jury. It is only when there is no evidence to the contrary, so that the moving party is entitled to judgment as a matter of law, that a judgment notwithstanding the verdict may be ordered.

2. When a motion for judgment notwithstanding the verdict is accompanied by a motion for a new trial and the trial court orders judgment notwithstanding the verdict without passing upon the motion for the new trial, and it is found that the court erred in ordering such judgment, the order granting the judgment will be set aside and the case remanded to the trial court for a determination of the motion for a new trial.

Appeal from District Court, Cass County; Daniel B. Holt, Judge.

Action by Gordon W. La Bree against the Dakota Tractor & Equipment Company to recover for injuries sustained in a collision between an automobile driven by the plaintiff and a road grader. From a judgment in favor of the defendant notwithstanding the verdict for the plaintiff, the plaintiff appeals.

Judgment vacated and case remanded for further proceedings.

Thorp, Wattam & Vogel, of Fargo, for appellant.

Nilles, Oehlert & Nilles, of Fargo, for respondent.

BURR, Judge.

On January 2, 1938, the plaintiff was injured in a collision between an automobile driven by himself and a road grader traveling on the highway. In his complaint the plaintiff alleges: “That at said time and place the Dakota Tractor and Equipment Company, defendant above named, was the owner of a road grader which was then and there on said highway, being driven and operated by one Oxenrider, an employee of the defendant company, under the directions of said company, and which road grader was proceeding in an easterly direction between the City of Casselton and the said City of Fargo, on said public highway No. 10.”

The answer “* * * denies that said accident was caused by any act or omission on the part of the defendant, or on the part of any agent or servant of the defendant; and further alleges that if the plaintiff sustained any accident, loss or injury, that the same was due to the carelessness and negligence of the said Gordon W. LaBree, driver of said automobile, and that his carelessness and negligence contributed thereto.”

On the trial of the case it developed that the defense of the defendant relative to the operation of the road grader at the time of the collision was that Oxenrider was not an employee of the company but an independent contractor.

The defendant made appropriate motions for dismissal of the action, for a directed verdict, etc., to which objection was made by the plaintiff.

The case was submitted to the jury, who returned a substantial verdict in favor of the plaintiff. The defendant moved for judgment non obstante, or in the alternative for a new trial. This motion was based upon several grounds-that the undisputed evidence showed Oxenrider to be an independent contractor and therefore the defendant was not liable for any of his omissions or negligence; that the plaintiff was guilty of contributory negligence which, as a matter of law, barred his recovery; that in case the motion for judgment notwithstanding the verdict was denied, then as grounds for a new trial the plaintiff alleged the insufficiency of the evidence to justify the verdict, errors in law occurring at the trial and duly excepted thereto, and excessive damages appearing to have been given under the influence of passion or prejudice.

In its assignment of errors of law the defendant set forth certain instructions of the court to the jury in regard to contributory negligence and the measure of damages.

Upon the hearing of this motion the trial court determined that as a matter of law the defendant was entitled to judgment notwithstanding the verdict on the ground Oxenrider was an independent contractor and not an employee of the defendant company; that this was established on the trial as a matter of law; that there was no evidence on this issue contrary thereto to be submitted to the jury; that the injury which was occasioned was the result of “negligence resulting from the improper handling of the grader in the course of its delivery by Mr. Oxenrider or contributory negligence on the part of the plaintiff”; and that it was not necessary to pass upon the question whether the court was in error in instructing the jury as to contributory negligence, as to dangerous instrumentalities, or other grounds which are alleged as grounds for a new trial. The court ordered the verdict set aside and judgment for the defendant for the dismissal of the action. From this judgment plaintiff appeals.

[1][2] Where the defendant made a motion for judgment notwithstanding the verdict, as in this case, and the trial court holds, on the hearing of said motion, that the defendant was not liable because Oxenrider was an independent contractor, such holding must of necessity be based on the theory that there was no evidence whatever to submit to the jury upon which the latter could find to the contrary and that the defendant had shown this conclusively. If there was evidence on this point tending to show that Oxenrider was in fact an employee of the company and engaged in the company's business as its servant at the time of the injury, then it became a matter for the jury, and a motion for judgment notwithstanding the verdict should not be granted. A motion for judgment non obstante does not go to the weight of the evidence, and such motion should not be granted unless the moving party is entitled to judgment as a matter of law. Richmire v. Andrews & Gale Elev. Co., 11 N.D. 453, 92 N.W. 819;State ex rel. Brazerol v. Yellow Cab Co., 62 N.D. 733, 736, 245 N.W. 382. See also Taylor v. Minneapolis, St. Paul & S. Ste. M. R. Co., 63 N.D. 332, 248 N.W. 268.

[3] In determining the validity of the ruling the evidence must be considered in the light most favorable to the party against whom the motion is made. Taylor v. Mpls., St. P. & S. Ste. M. R. Co., supra.

The defendant was engaged in the business of selling road machinery to municipalities and for such purpose its recognized agent entered into a contract with Dickey County whereby the county purchased a new road machine and as part payment on this new machine gave the road grader involved in this action. Title to it passed in Dickey County and the defendant was to deliver the new machine in Dickey County at a later period. The defendant desired to transport this old machine to its place of business in Fargo.

The county had owned the machine for a number of years, and during that time Mr. Oxenrider was the operator in charge of the grader upon the roads. For twelve years prior thereto he was familiar with this class of machinery and at the time the contract for the new machine was entered into he was in the employ of Dickey County, operating this old machine. This was in December of the year 1937. Knowingthat Oxenrider was familiar with the machine, the company asked him to drive it to Fargo for them. At first he demurred as his time belonged to the county but expressed a willingness to do it if the county would permit him to take the time. As an inducement it was suggested that as Oxenrider would be operating the new machine, which had not yet been delivered but was at Fargo, it would be expedient for him to go to Fargo and take some lessons in the operation of the new machine. Oxenrider told the defendant's agent that he could not undertake the work at once, it being too near Christmas, that he wanted to spend Christmas with his family, but thereafter he could take it; and this was agreeable to the defendant. It was pointed out in the discussion that the condition of the roads could not be prognosticated for any length of time in advance, and owing to the fact that some roads might be blocked by snow before he would begin his work, the question of the route he would take was left to his judgment. For his services he was to be paid twenty-five dollars in cash and his expenses en route. While Oxenrider was driving the machine between Casselton and Fargo, the collision took place.

It is argued with a great deal of earnestness that the relationship between the defendant and Oxenrider was not that of master and servant, employer and employee, but rather that of an independent contractor, and if so the defendant was not liable for the result of the collision.

The court instructed the jury quite fully with reference to this issue, placing the burden of proof upon the plaintiff to show that Oxenrider was an “employee of the defendant at said time and place, under the directions of said defendant, and at said time and place was acting within the scope of his employment.” The court charged that this claim was “expressly denied by the defendant, and said defendant asserts that Mr. Oxenrider was what is known in law as an independent contractor.” After stating the issues in this respect the court charged fully in regard to an employee and an independent contractor and stated to the jury: “It is for you to say whether this (master and servant) was the relationship between Mr. Oxenrider and the defendant and the burden of proof is upon the plaintiff to prove the existence of such relationship.”

The record shows that shortly after the collision, when Oxenrider reached West Fargo, he caused word to be sent to the company with reference to this accident, informing the company where the road grader was at that time. The defendant sent employees out and had it transported from there to Fargo.

Defendant asserts this state of facts shows conclusively that Oxenrider was a contractor who undertook to transport the machine from Dickey County to Fargo,...