Helbling v. Helbling
| Decision Date | 28 June 1978 |
| Docket Number | No. 9458,9458 |
| Citation | 267 N.W.2d 559 |
| Parties | Wayne HELBLING, Plaintiff and Appellant, v. Frank HELBLING, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
C. J. Schauss, Mandan, for plaintiff and appellant.
Orell D. Schmitz of Schlosser & Schmitz, Bismarck, for defendant and appellee.
The plaintiff, Wayne Helbling, suffered a back injury while he and an uncle were loading a dismantled furnace on a pickup truck. The two of them had been asked by Wayne's father, the defendant Frank Helbling, to load the furnace. The evidence indicates that Wayne, who was of age and married and not living with his parents, worked for his father occasionally when requested to do so, and was usually paid in goods such as meat or gasoline. On the day in question, he was paid by filling the gasoline tank of his own vehicle.
Wayne and his uncle were being assisted to some extent by a minister, from whose church the furnace had been purchased. The loading was being done by lifting a long board, which had been run through an opening in the piece of the furnace being lifted at the time of the injury.
The complaint alleged negligence in failing to provide sufficient assistance. The answer alleged contributory negligence and assumption of risk and included a general denial.
Depositions were taken of the plaintiff and his uncle, and a motion for summary judgment was made by the defendant and granted by the court. The plaintiff appealed. We reverse.
In its memorandum decision the trial court first decided that Wayne was an independent contractor. This is a theory which had been advanced by neither party in his brief. The parties had argued whether the plaintiff was an employee for reward (Sec. 34-02-06, N.D.C.C.) or a gratuitous employee (Sec. 34-02-04, N.D.C.C.; Schan v. Howard Sober, Inc., 216 N.W.2d 793 (N.D.1974); and see Olson v. Kem Temple, Ancient Arabic Order of the Mystic Shrine, 77 N.D. 365, 43 N.W.2d 385 (1950)).
The court went on to hold that even if it were in error in its determination that the plaintiff was an independent contractor, still he was not entitled to recover, regardless of whether he was a gratuitous employee or an employee for reward, because there was no negligence as a matter of law. In support of this conclusion the court cited the plaintiff's testimony in his deposition that he "lifted wrong" and hurt his back, and that the piece of iron being lifted was not too large for three men to lift.
In our view, the court erred in making this determination. We recently held, in Miller v. Trinity Medical Center, 260 N.W.2d 4, 7 (N.D.1977), that an admission by a plaintiff that he felt responsible to some extent for his own injury was not conclusive as an admission of legal liability. We said:
"A layman may use the word 'responsible' in the sense of causation in fact, as distinguished from proximate cause in law. As we said in Bertsch...
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Doan ex rel. Doan v. City of Bismarck
...justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978). [¶ 8] Whether a trial judge properly granted summary judgment is a question of law which we review de novo on the enti......
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Saltsman v. Sharp
...as to the inferences to be drawn from those facts.” Doan v. City of Bismarck, 2001 ND 152, ¶ 7, 632 N.W.2d 815 (citing Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978)). Where questions of negligence are in issue, summary judgment is improper “if there is any doubt as to the existence o......
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Krueger v. St. Joseph's Hospital, 9923
...exist as to the inferences to be drawn from undisputed facts. Ness v. St. Aloisius Hospital, 301 N.W.2d 647 (N.D.1981); Helbling v. Helbling, 267 N.W.2d 559 (N.D.1978). Whenever the court must make a finding of fact, summary judgment is inappropriate. Albers v. NoDak Racing Club, Inc., 256 ......
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Latendresse v. Latendresse
...and the alleged resulting damages. Negligence cases by their very nature are poor subjects for summary judgments. Helbling v. Helbling, 267 N.W.2d 559 (N.D.1978). In Hart v. Kern, 268 N.W.2d 136, 138 (N.D.1978), we said ". . . even where there is no dispute as to the facts, if inferences ma......