Holmes v. Lilygren Motor Co.
| Decision Date | 15 October 1937 |
| Docket Number | No. 31330.,No. 31325.,No. 31332.,No. 31329.,No. 31328.,No. 31327.,No. 31326.,No. 31331.,No. 31323.,No. 31324.,31323.,31324.,31325.,31326.,31327.,31328.,31329.,31330.,31331.,31332. |
| Parties | HOLMES v. LILYGREN MOTOR CO., Inc. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Mower County; Norman E. Peterson, Judge.
Action by Gifford Holmes against the Lilygren Motor Company, Inc. From an order denying defendant's alternative motion for judgment notwithstanding the verdict or a new trial and plaintiff's motion for a new trial as to damages, both parties appeal.
Order denying new trial reversed upon defendant's appeal.
Sasse, French & Dunnette, of Austin, for plaintiff.
Catherwood, Hughes & Alderson, of Austin, for defendant.
Plaintiff recovered a verdict against defendant for injuries received when a passenger in an automobile alleged to have been negligently driven by one in charge thereof with the consent of defendant, the legal owner. Defendant moved in the alternative for judgment notwithstanding the verdict or a new trial, and plaintiff moved for a new trial as to damages only. Both motions were denied, and each party appeals.
The main facts proven are: Plaintiff came to Austin in the forenoon of June 13, 1936, hoping to obtain steady employment with the Chicago, Milwaukee, St. Paul & Pacific Railway Company, he being on the "extra board." At the yards of the company plaintiff met two other employees, Vance Williams and Clifford Keen. Mr. Williams had a Plymouth car, and offered to take the other two uptown. They drove to Smith's saloon, near defendant's place of business. As they parked the car, Dandelet, employed by defendant in selling Ford cars on commission, hailed Williams. There had been talks previously between Williams and Dandelet in respect to exchanging the Plymouth for a Ford. The two conversed for some little time. There is conflict as to whether this talk occurred outside or in a booth in the saloon, and as to whether the four had some beer served them in the booth. The upshot was that Dandelet gave Williams his key to the Ford he was driving, and Williams telephoned his wife that he would come home and get her for a demonstration drive. It was about noon or lunch time. Instead of driving westerly to his home, Williams invited plaintiff and Keen into the Ford car and drove easterly and then southerly upon paved highway No. 218. The speed at times exceeded 80 miles per hour. At a crossroad near a schoolhouse about 5 miles south of Austin, the car was turned around to go back to Austin. Near the city limits the road curves to the west. On approaching that curve the speed was too high to negotiate it, the car ran off into the ditch, was completely wrecked, Keen instantly killed, and plaintiff's arm badly fractured. It further appears that this Ford car was sold in March, 1936, by defendant to Dandelet, under a conditional sales contract and registered in the secretary of state's office in his name, and that five weeks later Dandelet gave a bill of sale thereof to defendant and assigned the registration card to it.
Defendant presents 73 separate assignments of error. It will only be necessary to consider a few to dispose of the appeal. It is claimed that defendant is entitled to judgment notwithstanding the verdict, and, if not, that it is entitled to a new trial on account of rulings excluding evidence offered by defendant that it was not the owner and was not in possession or control thereof, and that it had not consented to Williams' use thereof to carry plaintiff.
The right to judgment notwithstanding the verdict is based first on the proposition that the possession and control of the car was entirely in Dandelet by virtue of the sale thereof to him by defendant under the conditional sales contract. But this overlooks the fact that some 5 weeks after that transaction, Dandelet gave a bill of sale of the car to defendant, and assigned to it the registration card. True, there was uncontradicted oral testimony that Dandelet had possession and used the car according to his own pleasure after the execution of the bill of sale precisely as prior thereto; but that does not dispose of the legal effect of the bill of sale and the transfer of the license registration card. However, as stated, defendant held documentary title to the ownership of the car, and the court did not err when, upon this record which fails to show the full arrangement between defendant and Dandelet respecting the car, a directed verdict was refused defendant at the close of the testimony.
The claim also is made that, conceding the ownership in defendant so that Dandelet as its salesman could give its consent to the use of the same by Williams, a prospective customer, Williams obtained it for the specific purpose of demonstrating the car to his wife; and that no authority was conferred by defendant to Dandelet or by Dandelet on Williams to take plaintiff and Keen for a ride, neither of whom pretended to be prospects. We do not believe it can be said as a matter of law that Dandelet as salesman had no implied authority to let Williams invite some one to accompany him when the car was demonstrated, or that Dandelet did in fact limit the use of the car to demonstrate it to Mr. Williams alone. Even with the testimony as limited as it was in respect to the arrangement between defendant and Dandelet as to the latter's employment, ownership and control of the car, we think the question of whether Williams, in inviting plaintiff and Keen to witness the demonstration, passed beyond the scope of the authority given him was for the jury. Dandelet testified that he placed no restriction upon the use of the car by Williams. Defendant was in the business of selling Ford cars, and it would be natural that it desired the qualities of these cars to be known by as many as possible. We do not think that this record warrants this court to hold, as a matter of law, that plaintiff was a trespasser in the car at the time of the injury.
We are also of the opinion that plaintiff's contributory negligence does not appear as a matter of law, so that defendant is entitled to judgment notwithstanding the verdict upon that ground. It is true plaintiff was in the front seat with Williams and observed the speedometer and knew that the curve was approached at excessive speed; but plaintiff testified that when they arrived at the schoolhouse and were turning around to go back to Austin he objected to the speed, whereupon Williams stated that he would drive slower, and that he did so at first. Williams denies any such talk. Taking all the circumstances into consideration, we think plaintiff's contributory negligence was for the jury.
The rulings of the court are assigned as erroneous in excluding evidence as to the purpose in taking the bill of sale and the assignment of the registration card, and other facts relative to the use, possession, and control of the car by Dandelet in defendant's employ payments made thereon by Dandelet after the bill of sale was given, liability insurance taken out by Dandelet upon the car, and the application of the insurance upon the balance due defendant under the conditional sales contract. We think these rulings were erroneous. Even as between parties and their privies it is competent to show that a conveyance of title...
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