Feather v. Krause

• Citation: 91 N.W.2d 1
• Parties: James FEATHER, Philip Feather, Virgil Feather, Linda Feather, and Tina Marie Feather (Mesabe), by Walter Lien, their Guardian ad Litem, Plaintiffs and Appellants, v. Samuel D. KRAUSE, the Administrator of the Estates of Ernest Betke and Harold Hartl, deceased, Defendant and Respondent.
• Decision Date: 23 June 1958
• Court: United States State Supreme Court of North Dakota

Page 1

91 N.W.2d 1

James FEATHER, Philip Feather, Virgil Feather, Linda

Feather, and Tina Marie Feather (Mesabe), by

Walter Lien, their Guardian ad Litem, Plaintiffs and Appellants, v. Samuel D. KRAUSE, the Administrator of the Estates of Ernest

Betke and Harold Hartl, deceased, Defendant and Respondent.

Supreme Court of North Dakota.

June 23, 1958.

Syllabus by the Court.

1. Under N.D.R.Civ.P., Rule 56(c), a motion for summary judgment will be granted only if after taking the view of the evidence most favorable to the party against whom summary judgment is sought it appears that there is no genuine issue as to any material fact and that the party seeking the judgment is entitled to it as a matter of law.

2. Ownership alone is not sufficient to impose liability upon the owner of an automobile because of its negligent operation by another to whom he has given permission for its use.

3. It is a general rule, subject to certain exceptions not applicable in the instant case, that the doctrine of res judicata binds only parties to the action in which the judgment was rendered and their privies and does not affect strangers to the judgment who are neither parties nor in privity with a party to the action.

4. For reasons stated in the opinion it is held that upon a motion for summary judgment in an action by minors to recover damages for the death of their mother in an automobile accident, a showing that a former action by minors to recover damages for the death of their mother growing out of the same accident was instituted by a guardian ad litem who appeared throughout the proceedings without counsel and who stipulated for a settlement with the defendants in the former action against whom no cause of action was stated or shown to exist, and that a judgment was entered against the defendants upon the stipulation of the guardian ad litem without findings by the court or a determination of the merits, which judgment was satisfied by the guardian ad litem, did not warrant the trial court in granting summary judgment against the minor plaintiffs in a second action by them against one who was not a party to the former action or shown to have been in privity with any of the parties thereto.

Duffy & Haugland, Devils Lake, for plaintiffs-appellants.

Palda, Palda & Peterson, Minot, for defendant and respondent.

MORRIS, Judge.

This action was brought on behalf of five minor children by their guardian ad litem Walter Lien to recover damages for the alleged wrongful death of their mother growing out of an automobile accident. The defendant is the administrator of the estates of Ernest Betke and Harold Hartl who were killed in the same accident.

The amended complaint alleges that at the time of the accident a collision occurred between an automobile in which Delores Feather, mother of the plaintiffs, was riding and an automobile being driven by Ernest Betke with whom Harold Hartl was riding, that Betke and Hartl were engaged in a joint enterprise, namely a mutual joy ride, that they were intoxicated and were negligent and reckless in the operation of the automobile, and that the collision that resulted in the death of Delores Feather was caused solely and proximately by their negligence and recklessness.

The defendant answered by a general denial. The answer further alleges that in October 1956 an action was commenced by the minor plaintiffs in this action by their guardian ad litem Paul S. Reaney against Ray I. Clark and Violet Clark as defendants which action was based upon the death of Delores Feather resulting from the same automobile collision that is the basis of the present action. The answer further states that a judgment was rendered against Ray I. Clark and Violet Clark in the sum of $1,300, and that:

'The said judgment is based upon the same cause of action alleged in plaintiffs' amended complaint and was rendered in favor of the same minor plaintiffs and that said judgment is a complete and full satisfaction and trial of the said cause of action alleged in the plaintiff's amended complaint, and is full satisfaction of the said cause of action.'

The defendant moved for a summary judgment in accordance with the N.D.R.Civ.P., Rule 56, on the grounds that the pleadings and affidavits attached to the motion show that the action had previously been adjudicated and that the defendant was entitled to judgment in this action as a matter of law.

Attached to the motion was the affidavit of K. S. Peterson, one of the attorneys for the defendant, which states:

'That said Deloris Alex Feather died as a result of an automobile accident on July 29th, 1956, at a point about seven miles south of Devils Lake, North Dakota, when she was a passenger in a vehicle owned and driven by Ted Tofsrud. The Tofsrud vehicle was involved in a collision with a vehicle owned by Ray I. Clark and Violet Clark and at the time of the accident, the Clark vehicle was occupied by Ernest Betke and Harold Hartl, the deceased persons in the above entitled action.'

The affidavit then goes on to describe the procedure that resulted in the appointment of a guardian ad litem and the bringing of an action against the Clarks for damages arising out of the death of Delores Alex Feather. It also appears from the affidavit that the action against the Clarks was brought in the district court of Ramsey County and that the judge thereof ordered the guardian ad litem to enter into a settlement with the Clarks and ordered that the money paid should be delivered to the Superintendent of the Fort Totten Indian Reservation for the benefit of the minor children. On October 19, 1956, pursuant to this order and a stipulation signed by the guardian, judgment was entered, the money paid over to the superintendent and satisfaction of the judgment was entered in Ramsey County. It is then stated that the minor children involved in these actions are the same children and that both actions are based on the death of Delores Alex Feather as the result of the automobile accident.

The motion for summary judgment was resisted. The resistence was supported by the affidavit of Neil Thompson, one of the attorneys for plaintiffs in this action, in which he states:

'That on July 29, 1956, Harold Hartl and Ernest Betke borrowed from Clark Oil Company of Fessenden, a certain automobile which they used in and about their own business and pleasure; that on said day, while driving such borrowed automobile, they collided with an automobile in which Delores Feather and two of her children were riding, and that as a result of such collision the said Delores Feather died and the two children were injured.'

The affidavit further states that the Clark Oil Company is owned by Ray Clark and Violet Clark and that the accident, death and injuries were caused by the negligence of Hartl and Betke. The affidavit further states:

'That the basis of settlement insofar as the death of the plaintiffs' mother is concerned, was wholly inadequate at least insofar as the estates of Harold Hartl and Ernest Betke are concerned.'

The court granted defendant's motion and ordered entry of summary judgment. From a judgment entered pursuant to that order the plaintiffs appeal.

The accident that resulted in the death of Delores Feather also resulted in personal injuries to the minor plaintiffs James Feather and Tina Marie Feather. In October 1956 three actions were brought against Ray I. Clark and Violet Clark, one each for the personal injuries of the minors and a third action for the wrongful death of the mother. Settlements were made in all three actions and judgments rendered accordingly. The guardian ad litem in each of the three actions was Paul S. Reaney. The judgment roll in the action for wrongful death of the mother is made a part of the record of this appeal. The complaint in that action alleges:

'That heretofore, on or about July 29th, 1956, the said Delores Alex Feather was riding in an automobile being driven by one Ted Tofsrud at a point about six and one-half or seven miles south of Devils Lake, North Dakota, on Highway 57 traveling in a southerly direction. That at said time and place the defendants were the owners of a 1948 Nash, which was being driven by one Harold Hartl in a northerly direction.

'That the said Harold Hartl negligently and carelessly and recklessly operated the Nash vehicle as to propel it into the vehicle driven by Ted Tofsrud killing the said Delores Alex Feather.'

It is then alleged that the plaintiffs were deprived of the society, service, comfort and motherly love, support and attention due them and which could reasonably be expected by them to their damage in the sum of $5,000. This complaint is signed by the guardian ad litem as is the summons. Nowhere in the proceedings does it appear that the guardian, Paul S. Reaney, had an attorney. Reaney petitioned the court for an order allowing him to enter into settlements of all three actions, as follows: For James Feather, who was also known as James Alex, $100; for Tina Marie Feather, who was also known as Tina Marie Masabe, $300, and for the five minor children for the death of their mother, $1,300. The petition contains this statement:

'Your petitioner is informed that the question of negligence on the part of the defendants or on the part of Harold Hartl and that of contributory negligence on the part of the deceased is problematical, and that the liability of the defendants is very questionable.'

The settlement was approved by the court. A stipulation was entered into between the guardian ad litem and the attorneys for Ray I. Clark and Violet Clark for the entry of judgments pursuant to the permission of the court, which provided:

'That said judgments shall be a full and complete settlement of any and all causes of action that the five minor children have against the defendants arising out of an automobile accident on July 29th, 1956.'

The court ordered judgment in accordance with this stipulation and...