Erickson v. Foley

• Decision Date: 12 August 1935
• Docket Number: No. 6357.,6357.
• Citation: 262 N.W. 177,65 N.D. 737
• Parties: ERICKSON v. FOLEY et al.
• Court: North Dakota Supreme Court

65 N.D. 737

262 N.W. 177

ERICKSON

v.FOLEY et al.

No. 6357.

Supreme Court of North Dakota.

July 23, 1935.

Rehearing Denied Aug. 12, 1935.

Syllabus by the Court.

1. Where there is no conflict in the evidence or the presumptions that may reasonably be drawn therefrom, the scope of authority of one driving an automobile belonging to another is a question of law for the court.

2. A servant or agent has no implied authority to invite a guest to ride in a motor vehicle in his charge.

3. Evidence examined, and it is held, that under the facts here presented, the negligence of the driver cannot be imputed to the owner of the car.

Appeal from District Court, Ramsey County; G. Grimson, Judge.

Action by John R. Erickson against F. A. Foley, C. B. McLane, and Westlie Motor Company, wherein suit was dismissed as to first-named defendant. From a judgment and order denying motion for judgment notwithstanding verdict for plaintiff, third-named defendant appeals.

Reversed, and action against third-named defendant dismissed.

Traynor & Traynor, of Devils Lake, for appellant.

Sinness & Duffy, of Devils Lake, for respondent.

MORRIS, Judge.

This case arose out of an automobile accident which occurred at the intersection of Military road and Lakewood road near the city of Devils Lake, between twelve and one o'clock, a. m., June 24, 1934. The plaintiff was riding as a guest in a car which was driven by C. B. McLane and owned by the Westlie Motor Company. The McLane car collided with one driven by F. A. Foley, and the plaintiff was injured. Suit was brought against Foley, McLane, and the Westlie Motor Company, as joint tort-feasors, and was settled and dismissed as to Foley before trial. A verdict was rendered against the two remaining defendants. From the judgment, and an order denying a motion for judgment notwithstanding the verdict, the Westlie Motor Company alone appeals.

The day before the accident occurred, the defendant McLane, who lived in Minot and had formerly lived in Devils Lake, procured from one Murphy, a salesman for the Westlie Motor Company, the use of a demonstrator car for the purpose of driving to Devils Lake to get McLane's wife, who expected to meet him there. McLane was considering the purchase of an automobile and Murphy loaned him the demonstrator in order that he might try out the car as a prospective purchaser during the contemplated trip. McLane took with him a young lady who intended to visit at Devils Lake. The record does not disclose that Murphy knew that McLane was to be accompanied by any one, although it appears that the young lady was also considering the purchase of an automobile. When they reached Devils Lake, McLane left his passenger at the home of a friend. He stayed around town until about midnight and then drove out to the officer's mess on the military grounds. There he met the plaintiff, whom he had known for some time, and also a Mr. Couture. Erickson, Couture, and McLane then started to drive to a cottage in the vicinity, and on the way the collision occurred between the demonstrator driven by McLane, and the car driven by Foley. They record discloses negligence on the part of the drivers of both cars. The plaintiff was the guest of McLane. He was not the guest of the Westlie Motor Company.

Chapter 184, Session Laws, N. D., 1931, provides: “§ 1. Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of North Dakota, and 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. * * *”

Section 2 of this act further provides: “Nothing in this Act contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle.”

Under this statute the appellant is not liable unless the plaintiff's injury proximately resulted from the gross negligence of the appellant. Such negligence the plaintiff seeks to establish upon the theory that McLane was the agent or servant of the appellant for the purpose of demonstrating the car to himself and to others. The evidence does not support this contention. The only trip contemplated by Murphy and McLane was from Minot to Devils Lake, and the only passenger or guest contemplated was Mrs. McLane. The accident occurred during a pleasure trip which McLane decided to take after reaching Devils Lake. He took this trip entirely upon his own responsibility and without either the express or implied authority or consent of the Westlie Motor Company or its salesman.

A dealer is generally held responsible for the negligent conduct of his salesmen while demonstrating an automobile to a prospective purchaser. Berry on Automobiles (6th Ed.) p. 1196, § 1429. In such case the salesman is the agent of the dealer. The dealer contemplates that demonstrations may be made to prospective purchasers, and if injury results from the negligent conduct of the agent, the dealer is responsible. An entirely different situation arises when the salesman permits a car belonging to the dealer to be driven by a prospective purchaser on a trip involving the purchaser's own business, and where the salesman or dealer is not present and exercises no authority over the trip. It is argued by the plaintiff that under such conditions the prospective purchaser is demonstrating the car to himself, and is therefore the agent or servant of the dealer. In this case McLane was driving the car for his own purposes, namely, to go to Devils Lake for his wife, and to try out the car in order to better determine whether or not he wished to purchase it. It is true that the appellant would benefit by selling a car if McLane was satisfied and decided to buy. Such benefit is both remote and contingent. It did not constitute the purpose for which the trip to Devils Lake was made, and had no connection whatever with the subsequent pleasure trip to the military grounds during which the accident occurred. The evidence wholly fails to show that McLane had authority to demonstrate the car to any one else, or that he was known to the appellant or its...