Haug v. Grimm, 15818.

Citation251 F.2d 523
Decision Date17 January 1958
Docket NumberNo. 15818.,15818.
PartiesDuane HAUG and Oscar Haug, Appellants, v. Edward M. GRIMM, a minor, by Albert E. Grimm, his guardian ad litem, and Albert E. Grimm, individually, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Quentin N. Burdick, Fargo, N. D., for appellants.

Mart R. Vogel and Jon N. Vogel, Fargo, N. D. (Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., were with them on the brief), for appellees.

Before SANBORN, JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment against the defendants (appellants) in a personal injury case resulting from an automobile accident which occurred in the evening of May 25, 1953, near Harwood, Cass County, North Dakota, on U. S. Highway 81. Edward M. Grimm, the 19-year-old son of Albert E. Grimm, was injured. Duane Haug was driving the automobile with the consent of his father, Oscar Haug, who owned the car. It was a family-purpose automobile. Edward Grimm and Milo Lew Rustan were with Duane in the car at his invitation. In passing another car, while on the way from Grand Forks to Fargo, Duane lost control of the Haug car, and it rolled over. The Grimms are citizens of Minnesota, and the Haugs citizens of North Dakota.

Albert E. Grimm, the father and guardian ad litem of Edward, brought this action for damages on July 28, 1954, on behalf of his son and on his own behalf against Duane Haug and his father, Oscar Haug, upon the claim that the accident and Edward Grimm's injuries, alleged to have been serious and permanent, were caused by the gross negligence of Duane Haug in driving at a dangerous rate of speed and in failing to keep control of the car.1

In their complaint the plaintiffs alleged that Albert Grimm had expended approximately $1,200 for medical and hospital treatment required by his son Edward because of his injuries, and would have to expend about $1,000 more for his further treatment.

The following is the plaintiffs' concluding allegation and prayer for relief:

"Because of the injuries as aforesaid and the pain and suffering both in body and mind already suffered and the pain and anguish which he will continue to suffer the plaintiff, Edward M. Grimm, has been damaged in the sum of $35,000.00.
"Wherefore, plaintiffs pray for judgment against the defendants as follows:
"1. for Albert E. Grimm individually the sum of $2,200.00.
"2. for Edward M. Grimm, a minor, by Albert E. Grimm, his guardian ad litem, the sum of $35,000.00.
"3. for costs and disbursements."

The defendants in their amended answer denied that Duane Haug was negligent, and alleged that Edward Grimm was guilty of contributory negligence, and that the plaintiffs' damages were overstated.

The case was tried to a jury in February, 1957. At the close of the evidence the court denied a motion of the defendants for a directed verdict. The jury returned a verdict for the plaintiffs, awarding them damages against the defendants "in the sum of $500.00 for the plaintiff, Edward M. Grimm, and $1,260.15 for the plaintiff, Albert E. Grimm."

The defendants moved for judgment notwithstanding the verdict or in the alternative for a new trial. The plaintiff Edward M. Grimm, who by the time of the trial was 23 years of age, moved that the verdict in his favor be set aside and that a new trial be granted him because of the inadequacy of the award.

The court denied the motion of the defendants, and granted Edward Grimm a new trial on the issue of damages only, setting aside so much of the judgment entered on the verdict as awarded him $500.00.

The defendants seek a reversal of the judgment appealed from. They ask that this Court direct the entry of a judgment in their favor or order a new trial because of the following alleged errors of the District Court:

1. Permitting a witness to give his opinion as to the speed of the Haug car at the time of the accident, based on tire marks alone.

2. Denying a motion for a mistrial for alleged misconduct of plaintiffs' counsel in argument to the jury.

3. Denying a requested instruction defining gross negligence, and giving an erroneous definition.

4. Giving an instruction permitting the jury to find that Edward Grimm was not a guest.

5. Denying the defendants' motion for a directed verdict made at the close of the evidence, and their motion, after verdict, for judgment notwithstanding or in the alternative for a new trial.

6. Granting the motion of Edward Grimm for a new trial on the issue of damages only.

1.

The witness Charles Young Punton, Sheriff of Cass County, North Dakota, who had had fifteen years experience as a highway patrolman in the investigation of automobile accidents, testified that he investigated the accident in suit, shortly after it occurred; that the weather was clear and the pavement dry; that he saw tire marks across the highway, to the east side of the pavement, showing that a car struck a soft spot on the east shoulder of the highway; that the car went on the soft shoulder for a considerable distance, and then angled across the highway again; that the marks led to the Haug car, "which was sitting in the west side of the road"; and that the distance the tracks extended was 435 feet. The witness was then asked whether he had an opinion as to the speed of the Haug car at the time of the accident. To lay a foundation for an objection, Punton was asked by counsel for the defendants if he knew whether the brakes of the Haug car were on at the time the tire marks were made. He said, "I do not." He said, however, that he had an opinion as to the speed of the car. Defendants' counsel objected to the witness giving his opinion, as being without foundation, since the witness did not know whether the tire marks were made with the brakes set or not. The court overruled the objection, and the witness said: "I would estimate at least 75 miles per hour." The witness then was permitted to testify, over objection, to the braking distance within which a car traveling at varying speeds could be stopped.

We think that the foundation for Punton's expert opinion as to the speed of the car at the time of the accident was obviously inadequate and his testimony about braking distances incompetent, since there was no basis for an assumption that Duane Haug had applied the brakes, and nowhere in the record was there any evidence that they had been applied before the car came to rest. The objections of the defendants to the opinion evidence of Punton, we think, should have been sustained. Whether the error in admitting the evidence would, standing alone, warrant a reversal of the judgment appealed from, we need not decide.

2.

We cannot review the alleged misconduct of plaintiffs' counsel in argument to the jury, since the record does not contain the closing jury arguments of counsel on both sides. See London Guarantee & Accident Co. v. Woelfie, 8 Cir., 83 F.2d 325, 344, and Illinois Terminal R. Co. v. Friedman, 8 Cir., 210 F.2d 229, 231.

3.

The defendants requested the following instruction on gross negligence:

"Gross negligence is, to all intents and purposes, no care at all. It is the omission of care which the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature. It is the absence of even slight care."

The court's instruction to the jury was as follows:

"Defining gross negligence is not easy. I charge you that it is something between ordinary negligence and reckless conduct. Gross negligence falls short of a reckless disregard of consequences and differs from ordinary negligence only in degree, and not in kind. So far as it has any generally accepted meaning, it is merely an extreme departure from the ordinary standard of care."

The defendants' requested instruction was in exact accord with the State Supreme Court's...

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  • Johnson v. Hassett
    • United States
    • North Dakota Supreme Court
    • March 29, 1974
    ...take the plaintiffs out of the guest statute (citing dictum in Ledford v. Klein, 87 N.W.2d 345 (N.D.1958), and the opinion in Haug v. Grimm, 251 F.2d 523 (CA8 1958), construing North Dakota law) and, second, that the plaintiffs nevertheless were entitled to recover for ordinary negligence, ......
  • Jenkins v. United States
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    • April 12, 1962
    ...1430 (1954). 3 Toho Bussan Kaisha, Ltd. v. American Pres. Lines, Ltd., 265 F.2d 418, 76 A.L.R. 2d 1344 (2d Cir. 1959); Haug v. Grimm, 251 F.2d 523 (8th Cir. 1958). The Government cites United States v. Alker, 260 F.2d 135, 155 (3d Cir. 1958), cert. denied, 359 U.S. 906, 79 S.Ct. 579, 3 L.Ed......
  • Lundstrom v. Daniel M. Homolka, P.A.
    • United States
    • U.S. District Court — District of South Dakota
    • February 15, 2022
    ... ... awarded was induced by unsatisfactory proof of liability and ... was a compromise.'") (quoting Haug v ... Grimm , 251 F.2d 523, 527-28 (8th Cir. 1958)). Indicia of ... compromise verdicts may be found '"when the jury, ... unable ... ...
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    • United States
    • U.S. District Court — District of South Dakota
    • February 15, 2022
    ... ... awarded was induced by unsatisfactory proof of liability and ... was a compromise.'") (quoting Haug v ... Grimm , 251 F.2d 523, 527-28 (8th Cir. 1958)). Indicia of ... compromise verdicts may be found '"when the jury, ... unable ... ...
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