Degenstein v. Ehrman

Decision Date13 October 1966
Docket NumberNo. 8218,8218
PartiesClarence DEGENSTEIN, by and through Philip Degenstein, his Guardian ad litem, Plaintiff, v. Jake EHRMAN, Jr., Eldon Ehrman, a minor, by Jake Ehrman, Jr., his Guardian adlitem, Larry Gehring, a minor, by Jake Gehring, his Guardian ad litem, Defendants. Eldon EHRMAN, a minor, by Jake Ehrman, Jr., his Guardian ad litem, Cross-Complainant and Respondent, v. Larry GEHRING, a minor, by Jake Gehring, his Guardian ad litem, Defendant andAppellant.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. The status of a host or his bailee is not changed by reason of the fact that he permits his guest to do a part of the driving.

2. Whether a person is a guest within the meaning of the guest act is a question of fact if the evidence as to the nature of the relationship between the parties is in conflict or is susceptible of different constructions, but if the facts from which the question of host-guest relationship arises are not in dispute, it is only the legal effect of the facts which is at issue.

3. Under the facts of the instant case, it was proper for the trial court to decide as a matter of law that the son of the owner of a car was not the guest of his friend who at the time of the accident was driving the car with the consent of the son of the owner.

4. The purpose of the guest statute is to protect one who, generously, without accruing benefit, has transported another in his vehicle.

5. Words and phrases shall be construed according to the context and the rules of grammar and the approved usage of the language. Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or as are defined by statute, shall be construed according to such peculiar and appropriate meaning or definition. § 1--02--03, N.D.C.C.

6. Questions of negligence, proximate cause, contributory negligence, and assumption of risk are ordinarily questions of fact for the jury; it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court.

7. Whether a motorist is confronted with an emergency and, assuming that he was confronted with an emergency, whether he acted negligently, are jury questions unless the evidence is such that reasonable men can draw but one conclusion therefrom.

8. In determining the sufficiency of the evidence to sustain the verdict, the evidence must be viewed in the light most favorable to the verdict.

9. The credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine.

10. Under the circumstances of the instant case the jury could have found that the defendant driver failed to sustain the burden of proof by a preponderance of credible evidence as to contributory negligence, assumption of the risk, and the existence of an emergency which would have justified the exercise of less than ordinary care.

11. The trier of the facts is not required to accept the uncontradicted testimony of an uncorroborated interested party, although such testimony is not contradicted by other testimony.

12. In light of the fact that none of the witnesses informed the investigating highway patrolman of certain acts of the cross-complainant which some of them later testified took place prior to the accident, although they were interviewed by the patrolman within a few days of the accident when the details should have been vividly in the minds of all of them, the jury could have reasonably and logically concluded that this part of the testimony was a fabrication and thus could have disregarded it.

13. When a traveler upon or across a highway is confronted by a sudden emergency created by the negligence of another and not by his own fault, he is not held to the same degree of care and prudence as is ordinarily demanded of a person who has time for deliberation and the full exercise of his judgment, and he is not guilty of contributory negligence if he acts as an ordinarily prudent person would act under like circumstances.

McGee, Van Sickle & Hankla, Minot, for appellant.

Vogel, Ulmer & Bair, Mandan, and J. O. Thorson, McClusky, for respondent.

Dale Jensen, Asst. Atty. Gen., Bismarck, for Unsatisfied Judgment Fund.

ERICKSTAD, Judge (on reassignment).

Clarence Degenstein, a minor who was a passenger in an automobile driven by Llewellyn Rauser, brought an action through his guardian ad litem against Jake Ehrman, Jr., his minor son Eldon Ehrman, and Larry Gehring, also a minor, for damages for personal injuries sustained in an automobile accident which occurred when an automobile owned by Jake Ehrman, Jr., collided with an automobile owned by Llewellyn Rauser's father.

The defendant Eldon Ehrman, through his guardian ad litem, filed a cross-claim against the defendant Larry Gehring for damages Eldon suffered as a result of personal injuries incurred in the same accident. An answer was duly returned to the cross-claim. Eldon also brought a separate action against Llewellyn Rauser, the driver of the vehicle owned by Llewellyn's father, for damages for personal injuries arising out of the same accident. The claim of the plaintiff, Clarence Degenstein, was settled prior to trial of the cross-claim. Eldon's cross-claim against Larry Gehring was consolidated for trial with his claim against Llewellyn Rauser.

This appeal is from the judgment of the District Court of Sheridan County based on a jury verdict in favor of the cross-complainant, Eldon Ehrman, and against the defendant Larry Gehring in the sum of $26,541, plus costs, and from the order of the district court denying the motion of the defendant Larry Gehring for judgment notwithstanding the verdict or in the alternative for a new trial.

The first basic issue we are faced with on this appeal is whether the trial court erred in refusing to instruct the jury that the cross-complainant, Eldon Ehrman, was a guest in the automobile owned by his father and driven by the defendant Larry Gehring, within the intent of the North Dakota guest law, barring recovery against the said defendant based only on ordinary negligence.

The facts as to this issue are undisputed.

The action by Eldon Ehrman is for the recovery of money damages for personal injuries he sustained as a result of an automobile accident on December 1, 1962, which occurred one mile south of Anamoose on State Highway 14.

At the time of the accident Eldon was riding in a car owned by his father Jake Ehrman, Jr., and driven by his friend and school classmate, Larry Gehring. The accident occurred when the vehicle driven by Larry collided with a vehicle driven by Llewellyn Rauser.

Eldon lives with his parents on a farm 3 1/2 miles south of Anamoose. About 7:00 p.m. on a Saturday evening Eldon drove his parents to Anamoose in a 1959 Ford automobile owned by his father Jake Ehrman, Jr. When they arrived in Anamoose Eldon parked the car and went into the drugstore. His parents went to a wedding shower and party in the Vets' Hall. As Eldon came out of the drugstore he saw his friends Llewellyn Rauser and Larry Gehring driving around in a 1958 Chevrolet automobile owned by Llewellyn's father Berthold Rauser. They stopped and Eldon got into the car with them.

The three drove around town in the Rauser car for a while and then drove to the Wesley Schilling farm located 5 miles southwest of Anamoose to see Llewellyn's girl friend. When they returned to Anamoose, they parked the Rauser car and got into the Ehrman car. The three then drove around town in the Ehrman car. During this time Llewellyn asked and was given permission by Eldon to drive the Ehrman car. While driving the Ehrman car, Llewellyn made a second trip to the Schilling farm to see his girl friend. When they returned to Anamoose, they decided to go to the wedding party at the Vets' Hall. At the wedding party all three had some beer. At about 10:45 p.m. Eldon and Larry left the wedding party together. At this time Larry began driving the Ehrman car and Eldon rode in the right front seat. Larry drove the Ehrman car to the old school gym, where they picked up five other boys, who got into the back seat. All were schoolmates of Larry and Eldon, and all were about fourteen or fifteen years of age.

Eldon testified that he could not recall anything that happened from the time the five boys got into the back seat of the Ehrman car until after the accident.

Upon leaving the old school gym, Larry, with Eldon in the front seat and the other five boys in the back seat, drove around town and then south to the intersection of Highways 52 and 14. As Larry proceeded south in the Ehrman vehicle, Llewellyn Rauser and his friend Clarence Degenstein began following in the Rauser vehicle. When Larry stopped for the stop sign at the intersection of Highways 52 and 14, the Rauser vehicle drove alongside the Ehrman vehicle.

As the two vehicles drove south on Highway 14, the Ehrman vehicle was on the right side of the highway, and the Rauser vehicle was on the left side. Soon after the vehicles left the intersection, the Rauser vehicle pulled in front of the Ehrman vehicle. About a mile down the road the Rauser vehicle drove off Highway 14 at a point where it is intersected by a gravel road. The two vehicles collided when the Rauser vehicle re-entered the highway.

Our guest statute reads as follows:

39--15--01. 'Guest' defined.--'Guest' shall mean and include a person who accepts a ride in any vehicle without giving compensation therefor.

39--15--02. Liability for injury to or death of guests.--Any person who as a guest accepts a ride in any vehicle moving upon any of the public highways of this state, and who 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. * * * 39--15--03. When driver of motor vehicle liable for injury or...

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