Dimond v. Kling

• Citation: 221 N.W.2d 86
• Decision Date: 28 June 1974
• Docket Number: No. 8953,8953
• Parties: Lyle DIMOND and Willard Dimond, Plaintiffs/Appellants, v. Sandra E. KLING et al., Defendants, Third-Party Plaintiffs and Appellees. Civ.
• Court: United States State Supreme Court of North Dakota

Page 86

221 N.W.2d 86

Lyle DIMOND and Willard Dimond, Plaintiffs/Appellants, v. Sandra E. KLING et al., Defendants, Third-Party Plaintiffs and Appellees.

Civ. No. 8953.

Supreme Court of North Dakota.

June 28, 1974.

Rehearing Denied Aug. 26, 1974.

Syllabus by the Court

1. Two minors riding together on a bicycle for the common purpose of purchasing popsicles at a store are not engaged in a joint enterprise for the purpose of imputing the negligence or contributory negligence of the minor driver to his minor rider so as to bar the minor rider and his father from recovering damages for personal injuries and medical expenses from the operator and owner of an automobile as the result of a collision of the two vehicles.

2. Where no timely objection was made at trial to the admission into evidence of a deposition as a whole, this court is foreclosed from considering such objection on appeal.

3. Where certain statements contained in a deposition are objected to as being hearsay, and the trial court rules that the statements are admissible as a part of the Res gestae, this court may review only the correctness of the court's ruling on that specific objection.

4. The trial court did not err in refusing to admit into evidence proof of speeding convictions of the defendant driver which occurred after an accident but before trial of suits arising from that accident.

William R. Mills, Bismarck, for plaintiffs/appellants.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendants, third-party plaintiffs and appellees.

TEIGEN, Judge.

This is an appeal by the plaintiffs, a boy who was injured in an automobile-bicycle collision and his father, from the judgment of the district court, based on a jury verdict, dismissing their complaint against the driver of the automobile and her employer.

On April 15, 1968, the plaintiff, Willard Dimond, then age 14, and one Daniel Wintermeyer, then age 16, were home early from school for the day. They were conversing with several other children in the trailer court where they lived, which is located south of the intersection of Bismarck Avenue and South 9th Street in Bismarck, North Dakota. Willard and Daniel decided to go to a store located on 9th Street, several blocks to the north, to purchase popsicles for themselves and the others. Since Willard's bicycle was not functioning properly, both boys rode on the bicycle owned by Wintermeyer. His bicycle was a 24 or 26 inch Huffy bicycle with modified handlebars, called at various points in the record, 'stingray,' 'butterfly,' 'bat wing,' or 'resembling the horns on a long-horn steer.' Whatever the description, it appears that such handlebars consist of a small level segment in the center, attached by a clamp to the front-wheel steering column. From thence the handlebars veer sharply upward, slightly outward, and back toward the rider with the ends of the handlebars veering downward.

After Wintermeyer purchased the popsicles, using his own money, they proceeded back toward the trailer court. Wintermeyer was on the bicycle seat peddling and steering, and Dimond sat on the handlebars with his arms wrapped around them and the popsicles in a box on his lap.

The defendant, Sandra Kling, an employee of National Car Rental of Bismarck, had taken a 1968 Pontiac Tempest automobile to Howard Thompson Motors, Inc., of Bismarck for cleaning. Thereafter, she proceeded toward the airport to return the car for use by National Car Rental customers. As she proceeded south on South 9th Street, and while in the process of passing the two boys on the bicycle, the two vehicles sideswiped and the boys were injured.

The plaintiff, Willard Dimond, through his guardian, sues for damages for personal injuries and his father, Lyle Dimond, sues for medical expenses incurred as a result of the same injuries. The action was brought against Sandra Kling, the driver of the automobile, and National Car Rental Systems, Inc., and Howard Thompson Motors, Inc., as the alleged owners of the automobile.

All defendants answered, denying the negligence of Sandra Kling and alleging the negligence of Wintermeyer and Dimond as joint venturers, and the contributory negligence of both Wintermeyer and Dimond. Kling served a third-party complaint for liability over, alleging the sole or contributory negligence of Wintermeyer. Wintermeyer cross-complained for damages allegedly due to the negligence of Kling.

A Bismarck police officer, Eugene Hetland, investigated the accident and interviewed the parties. His testimony was taken by deposition in the State of Hawaii, where he had moved.

The case was originally brought on for trial with the Dimonds and Wintermeyer as complaintiffs, and Kling, Howard Thompson Motors, Inc., and National Car Rental Systems, Inc., as defendants. On the third day of the trial, as a result of questions raised about the admissibility of the Hetland deposition for use against Wintermeyer, the claims of the Dimonds were severed for purposes of trial from those of Wintermeyer.

Upon conclusion of the trial, the jury returned its verdict in favor of the defendants and against the Dimonds. From the judgment on this verdict dismissing the complaint, the plaintiffs appeal.

The plaintiffs allege twelve issues of error. We find it necessary to consider at length only three of them.

The first issue for consideration is whether the trial court erred in submitting the question of joint enterprise to the jury and whether the instruction correctly stated the law. We find it necessary to the resolution of this question to review the state of the law with respect to vehicular accidents.

Ordinarily, the nagligence or contributory negligence of the driver of a host automobile is not imputed to a guest who has no control over the movement of the automobile. Only the guest's own contributory negligence will bar recovery against the negligence of a third person, and if the accident is attributable solely to the negligence of the host driver, the guest may recover only from him. Linington v. McLean County, 161 N.W.2d 487 (N.D.1968); Linington v. McLean County, 146 N.W.2d 45 (N.D.1966); Fisher v. Suko, 111 N.W.2d 360 (N.D.1961); Wilson v. Oscar H. Kjorlie Co., 73 N.D. 134, 12 N.W.2d 526 (1944); Bagan v. Bitterman, 65 N.D. 429, 259 N.W. 268 (1935); Billingsley v. McCormick Transfer Co., 58 N.D. 921, 228 N.W. 427 (1929); Amenia & S. Land Co. v. Minneapolis, St. P. & S.S.M. Ry. Co., 48 N.D. 1306, 189 N.W. 343 (1922).

Although this court has not heretofore determined the question, other states appear to be virtually of one mind that the same rules generally govern the relationship of a bicycle driver and his passenger. Gellerson v. Rasins, 248 Md. 75, 234 A.2d 758 (1967); Linzey v. Delgado, 246 Cal.App.2d 504, 54 Cal.Rptr. 762 (1966); Harris v. Morris, 259 S.W.2d 469 (Ky.1953); Hensley v. Briggs, 230 N.C. 114, 52 S.E.2d 5 (1949); Johnson v. Shattuck, 125 Conn. 60, 3 A.2d 229 (1938).

One exception to the previously stated rule that an automobile driver's negligence or contributory negligence will not be imputed to the passenger, so as to bar the passenger from recovery for damages, is where the driver and passenger are engaged in a joint enterprise. Bolton v. Wells, 58 N.D. 286, 225 N.W. 791 (1929); Christopherson v. Minneapolis, St. P. & S.S.M. Ry. Co., 28 N.D. 128, 147 N.W. 791 (1914).

The defendants alleged here that Dimond and Wintermeyer were engaged in a joint enterprise in riding to the store to purchase the popsicles, and the court, by an instruction, submitted the question for the jury's consideration. Dimond asserts that this was error on either of two alternate grounds, viz., that two minors may not, as a matter of law, be members of a joint enterprise for the purpose of imputing liability, or that, under the evidence in this case, there was no joint enterprise as a matter of law.

We have not heretofore considered the question of whether two minors may enter into a joint enterprise, and other states which have considered the question in relation to automobile accident cases are divided. The State of Washington has held that minors may engage in a legally recognized joint venture, Paulson v. McMillan, 8 Wash.2d 295, 111 P.2d 983 (1941), while the states of Missouri, Bell v. Green, 423 S.W.2d 724 (Mo.1968), and Texas, Fuller v. Flanagan, 468 S.W.2d 171 (Tex.Civ.App.1971), have held that they may not, at least for the purpose of imputing negligence.

In Paulson v. McMillan, 111 P.2d 986, Supra, the court analogized a joint venture to a partnership, and said:

'We find no dissent from the proposition that a minor may, by contracting with an adult, or even with other minors, create a partnership status. There would seem to be even more reason to apply the same rule to joint adventure * * * (which) contemplates an undertaking of a mere temporary nature * * *'

In Bell v. Green, 423 S.W.2d 730, 731, Supra, the court discussed joint venture from the standpoint of agency:

'* * * The same principle excludes consideration here of the theory of a joint venture, for that relationship is founded upon a contract of express or implied partnership or agency. * * * (A joint venture) * * * can exist only by voluntary agreement of the parties to it. * * * It is in the nature of a partnership, generally governed by the same rules of law, the principal difference being that a joint adventure is usually limited to a single transaction. * * * Since an infant cannot make a valid contract and cannot become a partner, he may not be a member of a joint venture within the legal meaning of the term. The doctrine of joint venture has sometimes been applied in cases arising from automobile collisions, usually to impute contributory negligence (cit. omitted), but we fail to see how it can logically be applied to a minor. * * *

'* * * Such liability, however evasively expressed, rests upon imputed negligence through a relationship of principal and agent. We do not choose to declare, as a...