Dahlin v. Kron

• Decision Date: 29 December 1950
• Docket Number: No. 35252,35252
• Parties: DAHLIN v. KRON et al.
• Court: Minnesota Supreme Court

Page 833

45 N.W.2d 833

232 Minn. 312

DAHLIN v. KRON et al.

No. 35252.

Supreme Court of Minnesota.

Dec. 29, 1950.

Syllabus by the Court.

1. Viewing the evidence in the light most favorable to the prevailing party (defendant Hutchinson), record discloses nothing sufficient to justify a reversal of the jury's verdict as to him.

2. There was no reversible error in the failure of the court to instruct the jury with reference to M.S.A. §§ 340.95 and 169.12 under the facts and circumstances of the case at bar.

3. The fact that medical attention has been rendered gratuitously to one injured by the wrongful act of another will not preclude the injured person from recovering the value of such services as a part of her compensatory damages.

4. Responsibility of striving for an atmosphere of impartiality during the course of a trial rests upon the trial judge, and the complaint of conduct on the part of the trial judge in the instant case does not bring it within the scope of Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 43 N.W.2d 260, so as to warrant a new trial on that ground alone.

Frank J. Zima, Jr., Minneapolis, for appellant.

Freeman, King, Larson & Peterson, Minneapolis, for respondent Hutchinson.

Joseph J. Granbeck and Lyle Pettijohn, Minneapolis, for respondent Kron.

FRANK T. GALLAGHER, Justice.

Appeal from an order of the district court denying plaintiff's motion for a new trial on certain issues.

This action arose out of an automobile accident which occurred on road No. 3, Hennepin county, about 2 a.m. on August 22, 1948. Defendants, John Kron and John Hutchinson, and a companion Harold C. T. Wind, all about 20 or 21 years of age at the time of the accident, had spent most of the afternoon of August 21 together in various recreational places or pool halls in Minneapolis. All admitted that they had been drinking beer in those places, but claimed that they had not been drinking to the extent of being intoxicated or under the influence of intoxicating liquor. They met again that evening with three girl friends whom they had dated earlier, among them plaintiff, aged 22 years. Hutchinson and Wind, with their girl friends, rode in Hutchinson's Pontiac automobile, and Kron and plaintiff were in Kron's Chevrolet. The young people visited several taverns that evening, and there was testimony that there was some drinking of beer or whiskey by them all. They finally arrived at a roadhouse called Jack Hines Place on county road No. 3 about 11 p.m., where they remained until about two o'clock in the morning. The record shows further drinking of either beer or whiskey by all members of the party at that place, where they visited and danced.

When the group left Jack's place, they apparently planned on going to Bryant's Long Lake. Hutchinson, Wind, and their companions left first in Hutchinson's car, and Kron and plaintiff followed in the Chevrolet. They proceeded along county road No. 3 toward their new destination for about a mile and a half, when Hutchinson, who testified that he was familiar with the road, slowed down to about 30 miles an hour because of a 'bad curve ahead.' He said that at about the time he did so Kron passed his car, which appears from the testimony to have been on its right side of the road, with the exception of plaintiff's statement that 'he seemed to be in the middle of the road.' There was some reference to 'racing' at that time, but as to this the evidence is not persuasive. Plaintiff was not sure whether Kron sounded his horn as he passed Hutchinson, but she thought he did. Kron had no recollection that he sounded his horn at that time. Plaintiff said that Hutchinson was driving at a normal rate of speed when they started to pass; that Hutchinson speeded up a little; and that Kron then 'speeded up a little bit and he seemed to turn to the right too much, and he went off the road.' Hutchinson 'would guess' that the Kron car was going about 30 or 35 miles an hour, 'maybe not that fast,' when it went through the guardrail, but he did not know how fast he (Hutchinson) was traveling at the time, 'because I had, of course, slowed down because I knew there was a bad curve ahead, and he (Kron) didn't know.' Hutchinson said that he stopped his car about 100 feet back of the place where Kron's car went through the guardrail.

Wind, a passenger in the Hutchinson car, testified that the Kron car passed them about a block back of the place where it ran off the road; that the Kron car did not come near the Hutchinson car in passing--that there was no contact between the two cars in passing. He estimated that the Hutchinson car stopped about 150 to 200 feet before reaching the place where the other car went off the road.

Kron, the driver of the ill-fated, car, testified substantially the same as the other boys as to what they did during the afternoon and evening. He said that the boys shared about equally the expense of the drinks and incidental expenses for the evening, and he thought that they 'chipped in' to pay for two pints of liquor. He did not remember that Hutchinson bought him any drinks, and he said that the group danced, smoked, and talked while at Jack's place. He said that they left that place a little before two o'clock and that the accident happened about 2:10 or 2:15 a.m. He testified that they went directly from Jack's place to the place where the accident happened, but he was not sure about the distance, since it was the only time he had been out there. He testified that Hutchinson was sober. Kron said that he passed the Hutchinson car only once; that when he did so Hutchinson did not increase his speed, turn toward him, or interfere in any way with his passing; that the Hutchinson car did not pass him at any time from Jack's place to the scene of the accident; and that Hutchinson was driving 30 miles an hour when he passed him. When quetioned whether the Hutchinson car gave way to the right as he passed him, Kron replied: 'Well, he was in his right of way and I just passed him. I had plenty of room.' He said that in passing the two cars were a few feet apart as they drew abreast of each other.

The jury returned a verdict of $2,434.50, against Kron, but found in favor of Hutchinson. It is difficult to determine from plaintiff's notice the exact nature of her appeal. It reads in part as follows: '* * * plaintiff, appeals * * * from the order * * * denying plaintiff's motion for an order setting aside the verdict rendered herein by the jury, and granting to the plaintiff a new trial on damages only against both defendants, and for an order setting aside the verdict rendered by the jury and granting plaintiff a new trial on the question of damages only against defendant John Kron and against defendant John Hutchinson on the question of negligence on the part of defendant John Hutchinson, the proximate cause of said negligence in causing the accident as set forth in plaintiff's complaint herein, and the question of damages that plaintiff is entitled to recover from said defendant, and from the whole thereof.'

Plaintiff assigns as error that the court erred in denying her motion for a new trial; that the verdict is not justified by the evidence and is contrary to law; and errors of law occurring at the trial. She also makes other assignments of error in connection with the refusal or failure of the court to give certain instructions; in connection with certain instructions given; and other claimed errors. We deem it necessary to consider only some of those assignments.

Kron filed no brief, nor did he appear in connection with the appeal to this court. Hutchinson filed a brief in this court and was represented by counsel when the appeal was heard here.

As to defendant Hutchinson, plaintiff contends that by virtue of M.S.A. § 340.95 Hutchinson should be held liable for damages to her for getting Kron intoxicated. Section 340.95 provides in part as follows: 'Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages sustained; * * *'

We cannot see that the statute is applicable under the facts and circumstances of the instant case. The evidence presented does not establish that Kron was intoxicated. Plaintiff herself testified that he was sober when he got into the car at Jack's place shortly before the accident. Neither is it convincing that Hutchinson furnished the liquor. Apparently the boys all 'chipped in' to buy it. It is also apparent that all the boys did their own drinking without any particular urging from the others. The trial court made it clear in its instructions that liquor was involved in the case when it said: '* * * There is no question in this case but what there was considerable drinking throughout this evening. That is not denied. The way liquor comes into the case is simply this. Did the fact that they had drunk liquor, either of them, either Mr. Kron or Mr. Hutchinson, affect their ability to drive an automobile? The liquor was taken voluntarily. That is the only way you have any concern or I have any concern with the drinking of liquor, whether or not it so affected them that their reactions and their minds and their bodies were not in proper shape to drive an automobile, and that that was a cause, or a proximate cause as we say, of the accident.' The court then instructed the jury on the question of negligence and proximate cause, giving in plain, understandable language the definitions of negligence and proximate cause.

Neither do we consider it reversible error under the facts and circumstances here that the court failed to instruct the jury under § 169.12 that it is unlawful for any person who is a habitual user of...