Hardware Mut. Cas. Co. v. Danberry

• Decision Date: 22 June 1951
• Docket Number: No. 35439,35439
• Citation: 234 Minn. 391,48 N.W.2d 567
• Parties: HARDWARE MUT. CAS. CO. v. DANBERRY.
• Court: Minnesota Supreme Court

Page 567

48 N.W.2d 567

234 Minn. 391

HARDWARE MUT. CAS. CO. v. DANBERRY.

No. 35439.

Supreme Court of Minnesota.

June 22, 1951.

As Amended Aug. 31, 1951.

Syllabus by the Court.

1. In negligence cases, one seeking contribution from another joint tortfeasor is not barred from recovery by the fact that he was guilty of ordinary negligence in the matter; but if his negligence amounted to an intentional wrong, or if he knew or is presumed to have known that he was doing an unlawful act which constituted the negligence for which he was liable, then he is not entitled to contribution. It is a failure after, not before, discovering the peril to exercise ordinary or reasonable care to avoid impending injury that constitutes wilful negligence. Evidence merely showing negligence--a want of ordinary or reasonable care--will not sustain a finding of wilful or wanton negligence.

2. Evidence showing the position of a speedometer needle of one of the automobiles after a collision between two or more vehicles is inadmissible in the absence of a foundation showing that the speedometer was operating properly prior to the collision and that the speedometer needle could not be moved upward by the force of the collision. If such foundation can be laid, such evidence may be admissible, together with other circumstantial evidence; but in that event the court should carefully caution the jury that it is not conclusive, but may be considered together with all other evidence in determining the speed at which the automobile was operating immediately prior to the collision.

3. Under the record here, the court did not err in its inquiry of the jury panel with reference to insurance.

Carroll & Thorson, Minneapolis, for appellant.

Wm. Stradtmann, Mankato, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from an order of the district court denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

This appeal arises out of an automobile-truck collision at a point in Blue Earth county, Minnesota, where highway No. 179 intersects at right angles with Marysburg highway at what is known as the Marysburg Corner. On November 8, 1946, defendant Glen Danberry, who at the time of the trial was a minor 20 years of age, was operating a 1937 model Packard automobile with the consent of the owner, one Harold Kenyon. Riding with him as a passenger was Grace Kenyon, wife of the owner. He was driving east on Marysburg highway, and about the same time one Melvin Burnett was operating a Chevrolet truck owned by plaintiff's assured, Madison Lake Creamery Company, in a southerly direction on highway No. 179. The two vehicles collided in the intersection, and Grace Kenyon was severely injured. She thereupon brought an action for damages against Melvin Burnett and plaintiff's assured, in which action Glen Danberry was joined as a third-party defendant. During the course of the trial, Grace Kenyon settled her claim with Burnett and plaintiff's assured for $15,000. This entire sum was paid by plaintiff, which brought this action to obtain contribution from defendant herein.

The facts necessary for our consideration are briefly as follows:

Burnett was traveling south on highway No. 179, a graveled highway, made slippery by a rain which had fallen the morning of the accident. He was driving a 1 1/2 or 2-ton truck, approximately half loaded with milk which he had picked up that morning on his creamery route. He testified that he was traveling about 20 miles per hour, and under the circumstances existing at the time of the collision could have stopped the truck within a distance of 50 or 60 feet. He testified also that he was familiar with the Marysburg Corner, knew it to be dangerous, and that he was aware of the law which gave the right of way to the driver of any vehicle on his right. Defendant was traveling east on the Marysburg highway, which also was a graveled road. The view of anyone approaching the intersection from either the north or the west was obstructed by farm buildings, a grove of trees, and a hedge, which were located in the northwest corner of the angle formed by the intersecting highways. Except for scattered clearings between the buildings and the trees, these obstructions blocked the view of anyone approaching from the north until he reached a point approximately 250 feet from the intersection. From the west, the view was blocked until a point approximately 175 feet from the center of the intersection was reached. Both drivers testified that they had looked both ways upon approaching the intersection. Burnett testified that as he approached the intersection his view toward the west was obstructed, except 'a couple times' when he could see through small clearances between the buildings. He said that he did not see the car coming from the west until after he got into the intersection, when he 'got a glimpse of it and then they hit.'

Defendant testified that he first saw the truck when he was approximately 175 feet from the center of the intersection. He estimated that the truck was then about 300 feet from the intersection. He did not see the truck again until it was entering the intersection. He claimed that he was the first one in the intersection, that he was driving about 35 miles an hour as he approached the intersection, and believed that he slackened his speed before entering it.

After the impact at the intersection, the automobile stood south of the east-west road and west of the north-south road, facing southwest. The truck was on the east side of the north-south road and south of the east-west road, facing west, with the rear wheels on the shoulder and the front wheels on the traveled portion of the road, about 70 feet south of the intersection. The right side of the truck was heavily damaged from the fender back through the cab of the truck, and the frame was bent toward the driver's seat approximately 30 or 34 inches, the full width of the frame. The automobile was more severely damaged. The motor was standing on end and had been pushed back sufficiently to pin defendant in the car. The post on the left-hand side of the car had to be cut away with an acetylene torch in order to free defendant, who suffered a broken leg and shoulder and who from the time of the accident until he was taken to a hospital remained in a state of semiconsciousness. Ben Fasnacht, who helped remove defendant from the car after the collision, testified that the speedometer needle in the car was jammed at 70 miles per hour. This testimony was objected to by defendant, which was overruled. This ruling constitutes one of the assignments of error. At the close of the testimony defendant moved for a directed verdict, which was denied.

The jury returned a verdict of $7,500 for plaintiff. Defendant moved for judgment notwithstanding the verdict or for a new trial, and the appeal is from a denial of the motion.

The only questions raised by defendant which we need consider are as follows:

(1) Did the court err in excluding from consideration of the jury the question of wilful and intentional violation of the statute by Melvin Burnett as bearing on the right of plaintiff to contribution?

(2) Did the court err in admitting testimony concerning the position of the speedometer needle in defendant's car after the collision and in denying the motion to strike that testimony?

1. Defendant argues that the court erred in refusing to give his requested instruction to the effect that if the jury found that Burnett was guilty of an intentional wrongful act or that he knowingly committed an illegal act plaintiff could not recover. He maintains that throughout the trial the court took the position, as stated in its memorandum attached to the order appealed from, that any negligence on the part of Burnett was no more than ordinary negligence and therefore was not a bar to plaintiff's recovery of contribution from defendant. Defendant contends that such a position cannot be maintained in light of the testimony of Burnett himself and of the Minnesota law applicable thereto. Defendant argues further that Burnett was guilty of wilful and intentional violation of M.S.A. § 169.20, which provides in part: 'When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.'

It is defendant's position that Burnett was the driver of the vehicle on the left; that he knew that his view across the northwest corner of the intersection was partly obstructed by some buildings and a grove of trees; and that this partial obstruction began several hundred feet north of the intersection and continued nearly to the intersection along the west side of the highway. Defendant stresses that Burnett's testimony also made it clear that he knew that any car coming from his right had the right of way, but that, regardless of this knowledge, he entered the intersection without seeing or being able to see cars approaching from his right and thus failed to comply with § 169.20. It is therefore defendant's position that under these circumstances Burnett knew that he was required to yield the right of way to defendant and that his failure to stop before entering the intersection was wilful and intentional negligence and a wilful and intentional violation of the statutes of right of way and speed which would prevent plaintiff's recovery by way of contribution.

The issue on that point therefore simmers down primarily to whether the actions and conduct of Burnett as he approached and entered the intersection constituted ordinary negligence as it is commonly known, or if his negligence amounted to an intentional wrongdoing which he knew or was presumed to have known was an illegal act.

The distinction and rule are set out in Fidelity & Cas. Co. of New York v. Christenson, 183 Minn. 182, 186, 187, 236 N.W. 618, 619, 620, where this court ...