Harmon v. Haas

• Decision Date: 18 February 1932
• Docket Number: No. 6013.,6013.
• Citation: 61 N.D. 772,241 N.W. 70
• Parties: HARMON v. HAAS et al.
• Court: North Dakota Supreme Court

61 N.D. 772

241 N.W. 70

HARMON

v.HAAS et al.

No. 6013.

Supreme Court of North Dakota.

Feb. 1, 1932.

Rehearing Denied Feb. 18, 1932.

On Motion for Rehearing.

Syllabus by the Court.

1. Where the trial court instructs upon the issues raised by the pleadings and justified by the evidence, it is not error for the court to fail to instruct on all theories which may be drawn from the evidence introduced, in the absence of requests for such instruction.

2. It is not error for the court to permit the plaintiff to show that, immediately after an automobile collision said to have been caused by the appellant's car, the appellant transferred all of his real estate, as such evidence is permissible on the theory of an admission. The appellant, if he desires, may show his reasons for any such transfer.

3. In this case plaintiff's husband was killed when a car owned by the appellant collided with decedent's car. The question of negligence on the part of the driver of appellant's car, contributory negligence on the part of the decedent, and the liability of the appellant for the acts of the driver of his car were all submitted to the jury under proper instructions. The evidence is examined, and it is found that there is sufficient evidence to sustain the verdict of the jury, and therefore the judgment for the plaintiff is affirmed.

Appeal from District Court, Richland County; Wm. H. Hutchinson, Judge.

Action by Evelyn D. Harmon against Theodore Haas and another. From a judgment for plaintiff and an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant named appeals.

Affirmed.

Heder & Lauder, of Wahpeton, for appellant.

Kvello & Adams, of Lisbon, and A. L. Parsons, of Lidgerwood, for respondent.

BURR, J.

August 30, 1929, A. L. Harmon was driving westward on highway No. 13 in the immediate vicinity of Wyndmere. Having some tire trouble, he stopped his car on the north side of the road, close to the ditch, and while at the rear of his car fixing the tire he was killed by a car belonging to Theo. Haas and driven by his daughter, Katherine Haas.

The plaintiff is the widow of the deceased. She says: That Katherine Haas drove the car in a careless, heedless and wanton manner “without due caution and circumspection and at a speed so great as to endanger the person and property” of the deceased upon the highway; that the lamps of this car were “covered with dirt, grime and oil so that the light was dimmed to such an extent that the light was not visible and could not be seen for a distance of two hundred feet ahead,” and that the death of her husband was caused by the carelessness and negligence of the said Katherine Haas; that at the time of this accident Katherine Haas was a member of the family and household of Theo. Haas and living in his home; that the car was owned and kept by the father for the purpose and pleasure of himself and his family, including the daughter Katherine; that said car was being so used by Katherine Haas at the time of the accident; that the father knew his daughter was using the car at said time for such purpose; and that Katherine was driving the car with his permission and consent and as part of his business and pleasure.

Theo. Haas admits he was the owner of the car, and that there was an accident in which A. L. Harmon was killed; but says this accident was caused by the negligence of the said deceased in stopping his car where he did and either not equipping his car “with a rear light visible in normal atmospheric conditions at a distance of 500 feet to the rear”; or that, if it was so equipped, it either was not lighted or that he had placed his body in front of the rear light so as to make the car invisible to any one coming from the east; that though Katherine was driving the car at the time of the accident she was at said time “over the age of twenty-one, not dependent upon this defendant in any manner and was not at said time a member of the family of this defendant or the agent of this defendant; that said Katherine Haas at said time was not using the said automobile for the business and pleasure of the defendant, Theo. Haas, and was not using said automobile for the business and pleasure of the family of the defendant-and was not driving said automobile at said time as a part of the business and pleasure of the defendant-that at the time mentioned in the complaint the said automobile of this defendant was equipped with the usual appliances, including brakes and headlights and that said brakes and headlights were in first class condition and in good working order,” that his daughter was an experienced driver and driving in a careful and prudent manner, but that on or about the time of the accident she met an automobile coming from the west with glaring headlights, and thus was momentarily partially blinded as the car passed and threw up a cloud of dust; that she slowed down to the rate of speed of less than five miles per hour and at this time collided with the car of the deceased.

Katherine Haas answered with practically the same kind of an answer, alleging that while driving the car she was driving it for her own pleasure and on her own business, and not for the pleasure or on the business of her father.

The case was submitted to a jury who returned a verdict in favor of the plaintiff. Judgment was entered thereon and Theo. Haas made a motion for judgment notwithstanding the verdict or for a new trial. This motion was overruled and he appeals.

Appellant says there are but three issues involved in this appeal:

First: “Was the instruction of the trial court as to the liability of Theo. Haas a full, true and correct statement of the law?”

Second: “Was it prejudicial error for the trial court to admit testimony as to the transfer of property by the defendant, Theo. Haas, over the defendant's objection?”

Third: “Was there sufficient evidence to sustain the verdict of the jury?”

The portion of the charge, said to be involved in the first issue, is as follows: “I instruct you that the law of principal and agent, and master and servant, is not confined to business transactions. When the owner of an automobile directs, or permits, another to operate such car under such circumstances that the one who operates such car may be deemed to perform a service for the owner, whether such service is one of profit to the owner, or to promote for the owner the pleasure or wish of a guest of the owner, then the person operating the automobile will be the agent or servant of the owner, and the owner would be liable for the negligence of the person operating the automobile.” The appellant does not urge this is an incorrect statement of law, but says it is an abstract proposition of law not applicable to the facts in the case, “and could lead the jury to the inference or belief that any one driving the owner's car for a guest of the owner would be (doing) a service for the owner”; and, further, “because it infers that the abstract propositions therein set out are the facts in the case.”

Appellant cites Welter v. Leistikow, 9 N. D. 283, 83 N. W. 9, and Polluck v. M. & St. L. Ry. Co., 45 S. D. 210, 186 N. W. 830, in support of his contention.

These cases are not applicable for the simple reason that this instruction is not merely an abstract proposition of law, but states law applicable to the case. Just prior to giving this instruction the court charged the jury that, before holding the appellant “responsible for the negligence of his daughter it must appear, by a fair preponderance of the evidence, that she was using her father's automobile with either express or implied authority from Theodore Haas, as the agent or servant of said Theodore Haas, and in serving some purpose for which the said automobile was purchased and kept by said father, the defendant, Theodore Haas.”

In a later portion of the charge the court said: “It is the contention of the defendant, Theodore Haas, that at the time of the accident the automobile in question, and driven by the defendant, Katherine Haas, was not being driven and operated upon said highway for any purpose of the defendant, Theodore Haas, or for any purpose for which said automobile was procured and kept by said defendant, Theodore Haas; and further that the defendant, Katherine Haas, was not, at said time, acting as either the agent or servant of the defendant, Theodore Haas.” And again the court said: “The burden of proof is upon the plaintiff to establish, by a fair preponderance of the evidence, to your satisfaction, that at the time in question Katherine Haas was using said automobile with either express or implied authority from Theodore Haas; and in so using it was serving some purpose for which said automobile was procured and kept by the defendant, Theodore Haas; and that said Katherine Haas was, in driving said automobile, acting as the agent or servant of the father, Theodore Haas, before you would be entitled to find a verdict against the defendant, Theodore Haas.”

Appellant says that “nowhere in the instructions is appellant's contention that the defendant, Katherine Haas, was driving for Josephine Haas, set out. Josephine Haas was not referred to at all in any instructions in regard to the agency.”

The issues upon which the case was tried were framed by the pleadings. The plaintiff in her complaint charged that the car was owned by the appellant, was operated by the daughter, with knowledge and consent of the father and in furtherance of some purpose for which the father kept the car. The appellant states that it was operated by his daughter Katherine for her own purpose and not for any purpose of his; and Katherine, in her answer, says the same thing. Nowhere in the pleadings is it alleged that the car was operated for Josephine or that Katherine Haas was driving it for Josephine, or as agent for Josephine. Consequently the court was not in error in omitting to refer to that feature.

[1] There is a difference...