Doheny v. Coverdale

• Decision Date: 20 May 1937
• Docket Number: 7630.
• Citation: 68 P.2d 142,104 Mont. 534
• Parties: DOHENY v. COVERDALE et al. (two cases).
• Court: Montana Supreme Court

68 P.2d 142

104 Mont. 534

DOHENY v. COVERDALE et al. (two cases).

No. 7630.

Supreme Court of Montana

May 20, 1937

Appeal from District Court, Eighth District, Cascade County; W. H Meigs, Judge.

Actions by Ethel M. Doheny, as administratrix of the estate of Roberta Doheny, deceased, and by Ethel M. Doheny, as administratrix of the estate of Marguerite Doheny, deceased against John M. Coverdale and E. O. Johnson, copartners doing business under the firm name and style of Coverdale & Johnson. From judgments on verdicts for plaintiff, defendants appeal.

Affirmed.

Howard Toole and W. T. Boone, both of Missoula, for appellants.

Hall & McCabe, of Great Falls, for respondent.

STEWART Justice.

These are appeals from two judgments rendered in the district court of Cascade county. Ethel M. Doheny is the mother of Roberta Doheny and Marguerite Doheny, now deceased. She prosecuted two actions as administratrix of the respective estates of her daughters, against John M. Coverdale and E. O. Johnson copartners doing business under the firm name and style of Coverdale & Johnson. The suits were against the partnership as such, and not against the individual partners, although service was made upon Coverdale individually, and he filed a separate demurrer and later a separate answer. The judgments, however, were entered against the partnership.

The causes were based upon the death of the daughters in an automobile accident. They were instituted separately but were combined for the purpose of trial. Separate verdicts were returned by the jury and judgments entered accordingly.

The facts out of which the cases arose are as follows: The partnership had a contract with the State Highway Commission for the construction of certain road and bridge improvements in the vicinity of the town of Augusta west of the city of Great Falls. Each of the partners had an individually owned automobile which was apparently from time to time used in and about the construction work. On December 10, 1934, Coverdale was absent from the vicinity of the contract work and at his home in Anaconda. Johnson was present and in charge of operations. One Bardon was employed by the partnership as timekeeper. The partnership had leased certain machinery from a resident of Great Falls. On the date mentioned the use of the machinery had been consummated, and Johnson directed a truckman in the employ of the firm to load the machinery on a truck and transport it to Great Falls. He designated a point in that city where he would meet him and thereafter direct him to the premises of the owner and assist in the unloading. The truck driver started upon the trip early in the evening. Thereafter Johnson in his own car, in company with Bardon, left Augusta and drove to Great Falls. On this trip Johnson and Bardon were accompanied by the two Doheny girls and by two men, none of whom were connected with the firm's operations. The record does not disclose the circumstances or conditions attendant upon the presence of these other passengers in the car. The Johnson party of six met the truck driver at the designated place in Great Falls--a restaurant, or beer parlor. Thereafter Johnson proceeded with his party to the premises of the owner of the machinery and was followed by the truck driver. This was approximately 11 o'clock at night. Johnson ascertained and designated the proper place for the deposit of the machinery, and he and the two male passengers, other than Bardon, assisted in the unloading. Bardon and the Doheny girls did not get out of the car. The only part taken by Bardon was that he moved the car into a position where the lights would shine upon the unloading operations. After the machinery had been unloaded the truck driver returned to Augusta. The record does not disclose what became of the two male passengers.

Johnson and Bardon later proceeded upon their return to the company headquarters at Augusta. This trip was made over a public highway which was a main graveled thoroughfare about 30 feet wide. The road passed through the town of Simms, west of Great Falls. About 20 minutes before 5 o'clock on the morning of December 11th, while the car was proceeding along the highway through the town of Simms, the accident occurred. Bardon was driving and Roberta Doheny was in the seat beside him. Johnson and Marguerite Doheny were in the back seat. Almost directly in front of the residence of one Dawson, the car, which apparently had been traveling on the right side of the highway, turned to the left at an angle of approximately 45 degrees, ran off the road, and head-on into a large tree. The car was wrecked and all of the passengers were more or less injured. Bardon and the two Doheny girls died as a result of the injuries without making any statements.

Johnson was not served with process. He did not voluntarily appear and did not testify as a witness in the damage actions. He had testified, however, at the coroner's inquest held previously with relation to the death of one of the girls. His testimony was admitted by agreement. He stated that he was sitting on the back seat covered with a coat half asleep; that he did not know what happened; that the car was traveling at about 35 miles an hour; that Bardon was driving; that the party had not been drinking; that nobody was intoxicated; and that none of the party had been to bed that night. There was a definite allegation in the complaint as to excessive speed, but there was no direct evidence with relation to that fact. Thus it will be observed that the whole matter really depended upon circumstantial evidence.

The admitted facts were that Coverdale and Johnson were copartners doing business under the firm name of Coverdale & Johnson; that Johnson was the owner of the automobile; that Bardon was an employee of the partnership; that the equipment was delivered to Great Falls; and that the accident occurred on the return.

The complaint also alleged that there was gross negligence and recklessness in the driving of the automobile at an excessive rate of speed of 50 or 60 miles an hour; that the driver permitted the car to turn from the highway and crash into the tree; that the road was smooth, unobstructed, 30 feet wide, and in a safe condition for travel; and that there was a clear and unobstructed view for a distance of approximately one-half mile west and one mile east of the place of the accident. The other allegations were of a formal character.

The answer in effect alleged that if the Doheny girls accompanied Johnson and Bardon in the automobile, they did so without the authority of the partnership or of Coverdale, one of the partners, but upon the personal invitation of Johnson and Bardon; that such invitation or permission so to ride was outside the scope of the authority given by the partnership, and outside the scope of the partnership business; and that the injuries to the guests were therefore not the result of any negligence on the part of the partnership or on the part of Coverdale personally. The issues so made were tried to one jury and resulted in the two verdicts.

A number of assignments of error are made and urged. They may be grouped so as to present only two or three points. The first point had to do with the sufficiency of the pleadings. Demurrers to the complaint were filed and overruled. Objections were made to the introduction of testimony. Motions for nonsuit were made, and finally motions for directed verdicts in favor of the defendants were made and overruled. Some of the specifications are based on refusal to give instructions, on instructions given, and on the modification and the giving of other instructions. One specification has to do with statements made by one of counsel for the plaintiff in the argument to the jury.

We have stated that the proof of the facts as to the occurrence consisted almost entirely of circumstantial evidence. Some of the assignments of error involve the allegations of the complaint and the alleged insufficiency of the testimony. It is argued that there was no evidence at all as to the occurrence, and therefore nothing upon which the defendants could be held. In this respect the case is exactly like the plaintiff's case in Harrington v. H. D. Lee Mercantile Co., 97 Mont. 40, 33 P.2d 553, 559. There this court said: "What caused Thompson's car to run into the fence? There was not any witness to the accident, but the facts constituting negligence may be established by circumstantial evidence, if such evidence tends more strongly to establish the theory of the plaintiff than an inconsistent one." Such was the situation here. We are of the opinion that the jury had a right to make a determination of the issues, including the alleged gross negligence and reckless operation of the car, upon circumstantial evidence.

The actions were prosecuted under the provisions of what is known as the "guest statute," section 1748.1 et seq Revised Codes. The act provides that the owner or operator of a motor vehicle shall not be liable for damages or injuries to a passenger or person riding in a motor vehicle as a guest or by invitation and not for hire, unless the damage or injury is caused directly and proximately by the grossly negligent and reckless operation of such motor vehicle; that any person riding in such a vehicle as a guest or by invitation, and not for hire, assumes, as between owner and guest, the ordinary negligence of the owner or operator of such motor vehicle; and that such ordinary negligence is imputed to the passenger so riding. This statute was construed and explained by this court in the case of Nangle v. Northern Pacific Ry. Co., 96 Mont. 512, 32 P.2d 11. There the distinction between liability in ordinary cases and guest cases was explained. The statute was...