Dickson v. Salisbury
| Decision Date | 05 December 1919 |
| Docket Number | 1915 |
| Citation | 177 N.W. 377,45 N.D. 26 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of LaMoure County; Honorable J. A Coffey, Judge.
Judgment reversed and canceled.
Reversed and canceled.
James Manahan and Thomas & Sullivan, for appellant.
An appeal lies only from a judgment duly entered. An appeal does not lie from a verdict of a jury. Clark v. Van Loon (Iowa) 79 N.W. 88.
Where no judgment was entered on the verdict of the jury, an appeal will not lie. Seven Valleys Book v. Smith (Neb.) 61 N.W. 603.
Unless allowed by express statutory provision, a writ of error or appeal will not lie from the verdict of a jury without an entry of judgment thereon. 3 C. J. 600.
This court has held that there can be no effective judgment in this state until it is entered in the judgment book. McTavish v. G. N. R. Co. 8 N.D. 337; 4 N.D. 119; 20 N.D. 195; 23 N.D. 457; 26 N.D. 283.
A final judgment does not become such until entered by the clerk in the judgment book. Re Weber, 4 N.D. 119; Dibble v Hanson, 17 N.D. 21.
The judgment entered November 20, 1918, being a judgment for costs only, was not a final appealable judgment. Barnhouse v. Adams (Iowa) 66 N.W. 826; Little v Gamble (Neb.) 66 N.W. 849; Smith v. Johnson (Neb.) 56 N.W. 323; 3 C. J. 600; 137 Cal. 363.
Defendant's daughter was acting within the scope of her employment and within the course of her employment as her father's agent in driving the car. Dennison v. McNorton, 228 F. 401.
The presumption is that the party operating the machine is the agent of the owner. The burden of disproving this presumption is upon him. Lynde v. Browning, 2 Tenn. C. C. A. 262; Birch v. Abercrombie, 50 L.R.A. 67; Stowe v. Marrie, 147 Ky. 386; Daily v. Maxwell, 152 Mo.App. 415; McNeal v. McKain (Okla.) 126 P. 1742; Collinson v. Cutter (Iowa) 170 N.W. 421, 422; Floetz v. Holt, 124 Minn. 173; Lenn v. Carlson, 120 Minn. 286; Kayser v. Van Nest, 125 Minn. 277; Uphill v. McCormick (Minn.) 166 N.W. 788; Johnson v. Evens (Minn.) 170 N.W. 220; Johnson v. Smith, 173 Minn. 676.
Maxine Salisbury was using the car with the implied consent of her father. Ferris v. Sterling, 214 N.Y. 249; Erlich v. Heis (Ala.) 69 So. 530; Birch v. Abercrombie, 74 Wash. 486, 33 P. 1020; Dennison v. McNorton, 228 F. 401.
Knowledge and consent may be implied as well as expressed. Lynde v. Browning, 2 Tenn. C. C. A. 262.
The question of whether or not Miss Salisbury received express permission to use the car was for the jury. Specifications of Error XXIII. of insufficiency XI. and XII. Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59; Long v. Bute, 123 Mo.App. 204; Rott v. Boston Ry. 138 Mass. 420; Taylor v. Modern Woodmen, 72 Kan. 453; Whalen v. Harrison, 26 Mont. 326; Wilson v. Royal Neighbors, 139 Mich. 425; Burleson v. Tinnin (Tex.) 100 S.W. 350.
Doane & Porter and Lawrence & Murphy, for respondent.
The chauffeur or agent is not acting within the scope of his employment when he is using the machine for his own pleasure or business. Slater v. Advance-Rumley Thresher Co. 97 Minn. 305, 107 N.W. 133; Stewart v. Barauch, 103 A.D. 577, 93 N.Y.S. 161; Quigley v. Thompson, 211 Pa. 107, 60 A. 506; Jones v. Hoge (Wash.) 92 P. 432.
The owner of an automobile establishment in which his son is employed as a clerk is not liable for the negligent operation of one of the machines by the son while using it for his own personal pleasure. Reynolds v. Buck, 127 Iowa 601, 103 N.W. 946; Lotz v. Hanlon, 10 Ann. Cas. 732; Maher v. Benedict, 123 A.D. 579, 108 N.Y.S. 228; Mattei v. Gillies, 12 Ann. Cas. 973; Lembke v. Ady (Iowa) 159 N.W. 1012.
A father is never liable for the wrongful acts of his minor son unless the acts were committed with the father's consent or in connection with the father's business. Smith v. Davenport (Kan.) 11 L.R.A. 492; Doran v. Thompson (N. J.) 19 L.R.A. (N.S.) 337; Reynolds v. Buck (Iowa) 103 N.W. 946; Conestoga Traction Co. v. Haldy (1912) 22 Pa. Dist. R. 124.
A parent is not liable for the torts of his minor children, when such acts are done without his authority, knowledge, or consent, and have no connection with his business and are not ratified by him, and are of no benefit to him. Thibodeau v. Cheff, Ann. Cas. 1912A, 585, note; Mirick v. Suchy, 74 Kan. 715, 87 P. 1141, 11 Ann. Cas. 366; Johnson v. Glidden, 11 S.D. 237, 74 Am. St. Rep. 795, 76 N.W. 933, 5 Am. Neg. Rep. 97; Dick v. Swenson, 137 Ill.App. 68; Pauley v. Draine, 9 Ky. L. Rep. 693, 6 S.W. 329; Bassett v. Riley, 131 Mo.App. 676, 111 S.W. 596.
A father is not liable for an injury inflicted by his automobile while being driven by his son, merely because of the relationship. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Loehr v. Abell, 174 Mich. 590, 140 N.W. 926; Roberts v. Schanz, 83 Misc. 139, 144 N.Y.S. 824; Notes to McNral v. McKain, 41 L.R.A. (N.S.) 775; Birch v. Abercrombie, 50 L.R.A. (N.S.) 59; White Oak Coal Co. v. Rivoux, Ann. Cas. 1914C, 1091.
An automobile is not per se a dangerous agency. Lewis v. Amorous, 3 Ga.App. 50, 59 S.E. 338; Shinkle v. McCullough, 116 Ky. 960, 105 Am. St. Rep. 249, 77 S.W. 196; Christy v. Elliott, 216 Ill. 31, 1 L.R.A. (N.S.) 215, 108 Am. St. Rep. 196, 74 N.E. 1035, 3 Ann. Cas. 487; Chicago v. Banker, 112 Ill.App. 94; McIntyre v. Orner, 166 Ind. 57, 4 L.R.A. (N.S.) 1130, 117 Am. St. Rep. 359; Indiana Springs Co. v. Brown, 165 Ind. 465, 1 L.R.A. (N.S.) 238; Smith v. Jordan, 211 Mass. 269, 97 N.E. 761; Hartley v. Miller, 165 Mich. 115, 33 L.R.A. (N.S.) 81; Slater v. Advance Thresher Co. 97 Minn. 305, 5 L.R.A. (N.S.) 598; Dailey v. Maxwell, 152 Mo.App. 675, 108 S.W. 1122; Danforth v. Fisher, 75 N.H. 111, 21 L.R.A. (N.S.) 93; Vincent v. Crandall, 131 A.D. 200, 74 N.Y.S. 999; Steffen v. McNaughton, 142 Wis. 49, 26 L.R.A. (N.S.) 382, 124 N.W. 1016; Jones v. Hoge, 47 Wash. 663, 14 L.R.A. (N.S.) 216, 125 Am. St. Rep. 915, 92 P. 433; McNeal v. McKain, 41 L.R.A. (N.S.) 778, 779; 6 Labatt, Mast. & S. 6644, 6843.
No presumption arises from the fact that at the time of an accident a son was driving his father's automobile, that he was acting within the scope of his authority, which will cast upon the father the burden of showing the contrary. Hays v. Hogan, L.R.A.1918C, 715; McFarlane v. Winters (Utah) 155 P. 437; Zeer v. Bahnmaier (Kan.) 176 P. 326; 6 Labatt, Mast. & S. 6644; 46 L.R.A. (N.S.) 199.
This is an action to recover damages by reason of a personal injury sustained by collision with an automobile. The court directed a verdict for the defendant and on that verdict two judgments have been entered. On November 21, 1918, pursuant to an order of the court reciting the trial and verdict, a judgment was entered that the defendant do have and recover from the plaintiff the costs and disbursements of the action, taxed at $ 237.50.
Now a judgment is a final determination of the rights of the parties in the action. Comp. Laws, § 7599. The first judgment showed such a final determination. It recites the verdict of the jury in favor of the defendant and the order for judgment on the same and the amount allowed as costs, but it seems counsel thought the first judgment not good enough, because it did not declare the action dismissed. Hence, on May 7, 1919, a second judgment was entered which is that the defendant have and recover judgment against the plaintiff dismissing the action and for $ 237.50, his costs. Plainly the second judgment is no better than the first and it is in the form of an order for judgment.
This is an appeal from the second judgment. It was taken October 15, 1919, and after the first judgment had become final. The second judgment was not authorized and it must be reversed and canceled. After one judgment has been entered on a verdict, if it is in any way technically defective, it may be corrected on motion, but the court may not enter a succession of judgments and in that way extend the time for an appeal from the first judgment. The defendant erroneously moved to dismiss the appeal on the ground that the second judgment is wholly unauthorized and without jurisdiction. But that is cause for canceling and reversing the judgment, and not for dismissing the appeal.
The record is from beginning to end a very bunglesome affair. Hence, without reviewing the merits of the case, the second judgment must be reversed and canceled, and that will leave the first judgment in full force and effect.
Reversed and canceled.
On Petition for Rehearing, filed January 30, 1920.
Per Curiam. Plaintiff has petitioned for a rehearing, and we have reconsidered the case. Such reconsideration has caused no change of mind on the part of any of the members of the court. The majority members are still of the opinion that the first judgment was a final judgment. On its face it showed that it was rendered pursuant to a verdict, which decided all questions of fact in the case. Hence, the second judgment was wholly unauthorized. Miller v. Thompson, 31 N.D. 147, 153 N.W. 390.
The majority members are, also, of the belief that the trial court properly directed a verdict in favor of the defendant.
Rehearing denied.
BRONSON J. I dissent. The motion to dismiss the appeal herein should be denied.
This cause, an action for personal injuries, was tried before a jury, and, at the conclusion of plaintiff's case pursuant to a motion made by the defendant, verdict was directed by the court in favor of the...
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