Ellingboe v. Guerin

• Decision Date: 01 April 1949
• Docket Number: 34829.
• Citation: Ellingboe v. Guerin, 228 Minn. 211, 36 N.W.2d 598 (Minn. 1949)
• Parties: ELLINGBOE v. GUERIN.
• Court: Minnesota Supreme Court

36 N.W.2d 598

228 Minn. 211

ELLINGBOE v. GUERIN.

No. 34829.

Supreme Court of Minnesota

April 1, 1949

Syllabus by the Court.

1. In an action involving damages resulting from an automobile collision, the court erred in submitting to the jury the rule of the so-called family-purpose doctrine.

2. An instruction unobjected to becomes the law of the case however erroneous it may be, and, whether the charge be right or wrong, it must for the purposes of an appeal be taken as the law of the case.

Appeal from District Court, Ramsey County; Albin S. Pearson Judge.

G P. Mahoney and J. W. Cragg, both of Minneapolis, for appellant.

McMeekin & Quinn and Thomas Quayle all of St. Paul, for respondent.

MAGNEY, Justice.

Plaintiff was the owner of an automobile. On November 15, 1946, while driven by his daughter, Marilyn Stapleton, it collided with a car owned and operated by defendant. Both cars were damaged. Plaintiff brought action to recover for his loss. Defendant counterclaimed. Marilyn and Jacqueline, her daughter, who was a passenger in the car, brought separate actions to recover for injuries sustained. The three cases were tried together. A verdict was returned for Jacqueline, and verdicts were rendered for defendant in the other two cases, without recovery against plaintiff on the counterclaim.

The court charged the jury:

'The Dodge car was owned by the plaintiff, Thomas Ellingboe, and was operated by the plaintiff, Marilyn Stapleton, as his agent so if, and only if, Marilyn was guilty of negligence or contributory negligence, Thomas Ellingboe is also guilty. Since Jacqueline was only a passenger, no negligence nor contributory negligence may be imputed to her.'

The jury came back for further instructions. The court then told the jury, among other things, that, even if it found defendant guilty of negligence, Marilyn could not recover if she was guilty of contributory negligence, and also that if it found Marilyn guilty of contributory negligence such negligence would not be imputed to her daughter. The court then discussed the situation in the Ellingboe case as follows: He told the jury that there was some difficulty in that case. The troublesome question was whether the contributory negligence of Marilyn, the driver, could be imputed to her father, the owner of the car. He said:

'* * * Perhaps you saw this afternoon that Mr. Cragg (one of the attorneys for defendant), after both counsel had completed their arguments, handed me a yellow sheet of paper which was a request for an instruction. * * * In order to explain the situation, I will read it to you now: 'The above named defendant respectfully requests the court to instruct the jury as follows: Under the evidence produced in this case, the car of the plaintiff, Thomas Ellingboe, driven by his daughter, Marilyn Stapleton, at the time of the accident was a family purpose car and was being used for such purposes at the time of the accident and any negligence of said daughter would be imputable to the plaintiff, Thomas Ellingboe.' After I had read that, I turned to Mr. Quinn (one of the attorneys for plaintiff) and he said he had no objection to it, and then I said to Mr. Cragg, or to both of them, that I would give that instruction but in different and simpler language, * * *.'

The court then reread the instruction which he had already given in the original charge on this point and said:

'* * * and at the end of the instructions I turned to both lawyers and asked if they had any objections to what I had said and Mr. Quinn said he had none. Then I asked Mr. Cragg if I had covered his point, referring to this yellow sheet of paper, and he said that I had. Whatever the effect of that agreement may be, and there is some question as to whether this is the law or not, and I didn't go into it because they both agreed to it, my present idea is that if anything needs to be done about that agreement I can correct that later on after you have brought in a verdict in the case of Thomas Ellingboe.'

Later on, in the supplementary charge, he stated:

'* * * On the other hand, if you find that he (defendant) was not negligent, then of course you must determine whether Marilyn was guilty of negligence because that case on the counter-claim is just like another lawsuit. Does everybody understand the counter-claim business?'

After the three verdicts had been handed to the court, the court said:

'An inspection of the three verdicts leads me to the conclusion that you found the defendant guilty of negligence and that you found Marilyn, the driver, guilty of contributory negligence, is that correct?' to which a juror answered: 'That is correct.'

The court again referred to the legal question, which he had discussed when the jury returned for further instructions. He thereupon sent the jury out again to assess the damages to plaintiff's car and to bring in a verdict for plaintiff. No other direction was given. The jury returned a verdict of $800 for plaintiff. The court was apparently convinced that it erred in its original charge when in effect it stated that the negligence of Marilyn would be imputed to her father, the owner of the...