Hogan v. Knoop

• Decision Date: 22 October 1971
• Docket Number: No. 8733,8733
• Parties: Donald M. HOGAN, individually and as Guardian Ad Litem of Michael Hogan, a minor, Plaintiff and Appellant, v. Walter KNOOP and Walter Knoop, Jr., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 263

191 N.W.2d 263

Donald M. HOGAN, individually and as Guardian Ad Litem of Michael Hogan, a minor, Plaintiff and Appellant, v. Walter KNOOP and Walter Knoop, Jr., Defendants and Respondents.

Civ. No. 8733.

Supreme Court of North Dakota.

Oct. 22, 1971.

Syllabus by the Court

1. Because determination of an appeal upon the merits is favored, and because this court has complete discretion under its rules to determine motions for dismissal of appeals based upon undue delay, and since the delay in the instant case has not resulted in inconvenience, detriment or prejudice to the respondents, and since the record, including a settled statement of the case, was received by this court, and the briefs were served and filed with this court prior to the date of the oral argument upon the motion for dismissal, the motion is denied.

2. Under Rule 49(b) of the North Dakota Rules of Civil Procedure, when the trial court submitted written interrogatories to the jury along with appropriate forms for a general verdict, and the jury returned answers to the interrogatories which were consistent with each other, but inconsistent with the general verdict, the court was at liberty to direct the entry of judgment in accordance with the answers. Under such circumstances this court is not required to view the evidence in the light most favorable to the general verdict in determining whether a new trial should be granted.

3. Questions of negligence, contributory negligence, and assumption of risk are questions of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom. In light of the evidence presented in this case, it is held that the questions of negligence, contributory negligence, and assumption of risk were properly submitted to the jury.

4. Whatever naturally and logically tends to establish a fact in issue is relevant and that whch fails to qualify in this respect is not relevant.

5. A guest in a motor vehicle can be guilty of contributory negligence in riding or continuing to ride with the driver who he knows or, in the exercise of ordinary care and diligence, should know is no intoxicated that he is unable to operate the vehicle with proper prudence or skill. Accordingly, evidence concerning procurement of beer for the driver and his friends by the guest at 6:30 p.m. was relevant in determining the issue of contributory negligence and assumption of risk by the guest in an accident which occurred shortly after 11:45 p.m. on that same date.

6. The mere fact that evidence otherwise relevant and of probative value is incomplete, weak, or somewhat prejudicial does not necessarily require its exclusion.

7. The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. For reasons stated in the opinion, we do not believe that counsel's conduct in asking questions which caused witnesses to invoke the Fifth Amendment justifies this court in granting a new trial.

8. For reasons stated in the opinion, it is held that the trial court's submission of special interrogatories to the jury did not mislead the jury and that the form of the special interrogatories was proper.

Degnan, McElroy, Lamb & Camrud, Grand Forks, for appellant.

O'Grady, Edwards, Anderson & Lawrence, Grand Forks, for respondents.

ERICKSTAD, Judge.

Before we may consider the merits of the appeal, we must consider the motion made by the respondents, Walter Knoop and Walter Knoop Jr., made in this court for a dismissal of the appeal by Donald M. Hogan individually and as guardian ad litem of Michael Hogan, a minor.

The notice of appeal from the August 22, 1967, judgment and the notice of deposit for undertaking, both dated February 20, 1968, were served upon the Knoops by mail, the affidavit of mailing indicating that the same were placed in an envelope addressed to the defendants' attorneys on February 20, 1968.

At the time of the filing of the notice of motion to dismiss the appeal in this court on July 16, 1971, the appellant had not filed a transcript of the case, nor a certificate settling the statement of the case, nor his briefs, nor had he caused a transmittal of the record to the Supreme Court.

On August 18, 1971, the judgment roll in the matter was filed with the Supreme Court, and on August 23, 1971, the transcripts and the appellant's brief were filed with the Supreme Court. The certificate settling the statement of the case, signed by the trial court on December 22, 1970, was filed with the clerk of the Supreme Court on August 23, 1971.

The certificate of the clerk of the district court of Grand Forks County discloses that the stipulation for the settlement of the statement of the case as well as the certificate settling the statement of the case were filed in that clerk's office on August 20, 1971. The stipulation settling the statement of the case is dated December 9, 1970.

Section 28--18--06, N.D.C.C., places the responsibility upon the appellant in a civil case to secure a transcript of the evidence 'Within thirty days of the notice of the entry of judgment * * * or within such further time as the court shall allow * * *'. In the instant case, the appellant not only failed to secure the transcript within the thirty days, a common failing, but he also failed to secure an extension of tme from the court within which to secure the transcript and a settled statement of the case. Inasmuch as the respondents stipulated the settling of the case as of December 9, 1970, it would appear that the respondents is so doing have waived any objection to the delay relative to securing a settlement of the case to that point in time and for a reasonable period thereafter.

We note, however, that the trial court settled the statement of the case as of December 22, 1970, and that thereafter the appellant failed to secure a transmittal of the record until August 18, the certificate settling the statement of the case and the stipulation settling the statement of the case until August 23, and the briefs until August 28, 1971.

Rule 21, relating to perfection of appeal and transmission of record; Rule 22, relating to settlement of the case; Rule 24, relating to the time for preparation and service of transcript in civil cases; Rule 26, relating to the preparation and transmission of the record in civil cases as governed by Section 28--27--06, N.D.C.C.; and Rule 31, providing for dismissal of an appeal for failure to comply with the rules, are all pertinent to the motion under consideration. We have very recently concluded that whether we grant a motion of this type is within the discretion of this court. See Application of United States Crude Oil Purchasing Company, 167 N.W.2d 537 (N.D.1969).

Although we are displeased with the appellant's conduct in failing to comply with the rules of our court and the statutes of this State relative to appeal, we shall deny the motion and consider the merits, because we favor determining appeals upon the merits of the appeals, and because the entire record is now before us and properly settled by the trial court, and because the briefs have been properly served and filed and the matter is ready for a consideration upon the merits, which facts distinguish this case from Pierce County Abstract Company v. Petterson, 142 N.W.2d 620 (N.D.1966), wherein this court dismissed the appeal upon a motion grounded upon undue delay. In Pierce County, the transcript had been transmitted to the Supreme Court, but the statement of the case had not been settled and appellant had not served or filed her briefs by the date of the oral argument on the motion in this court.

In conclusion, because determination of an appeal upon the merits is favored--and because this court has the complete discretion under its rules to determine motions for dismissal of appeals based upon undue delay, and since the delay has not resulted in inconvenience, detriment or prejudice to the respondents, and since the record is now before us and the briefs have been served and filed--we shall deny the motion for dismissal.

In this case, Mr. Hogan in his amended complaint asserts that he is the father and guardian ad litem of Michael Hogan, a minor; that Walter Knoop is the owner of a 1950 Ford automobile which was kept and used as a family automobile and that Walter Knoop Jr. is Walter Knoop's son and a member of his household; that at all times pertinent Walter Knoop Jr. was using and operating the said automobile with his father's consent and for a family purpose; that on May 9, 1964, Walter Knoop Jr. was operating the said automobile in a northerly direction on Chestnut Street in the city of Grand Forks while Michael Hogan was riding in the said automobile as a guest passenger; that at that time and place Walter Knoop Jr. operated the said motor vehicle with such gross negligence and with such willful and wanton misconduct that the vehicle was caused to leave the street at an excessively high rate of speed and collide with a tree; that an the direct and proximate result of the gross negligence and willful and wanton misconduct of Walter Knoop Jr., Michael Hogan was seriously injured, and in connection with said injuries was hospitalized and required to undergo several operations; that his injuries will be permanent; that doctor and hospital and other bills were incurred in the sum of $1400 as a direct and proximate result of the accident. The complaint closes with a prayer that judgment be entered in favor of the plaintiff as an individual in the sum of $1400 and in favor of the plaintiff as guardian ad litem of Michael Hogan in the sum of $25,000.

The amended answer of the defendants for the purposes of the issues involved in this lawsuit asserts that Michael Hogan was riding in the automobile as a guest passenger within the provisions of Chapter 39--14 of the North Dakota Century Code; and as an affirmative defense it asserts that at...