Kunze v. Stang, s. 8681

Decision Date02 September 1971
Docket NumberNos. 8681,8682,s. 8681
Citation191 N.W.2d 526
PartiesRoberta KUNZE, Plaintiff and Respondent, v. Larry D. STANG, Administrator of the Estate of Leon Stang, also known as Leon L. Stang, and the Estate of Leon Stang, also known as Leon L. Stang, Defendant and Appellant, and Jake W. Gruebele, Administrator of the Estate of Brenda Gruebele, Defendant and Respondent. Marlin KUNZE, Plaintiff and Respondent, v. Larry D. STANG, Administrator of the Estate of Leon Stand, also known as Leon L. Stang, and the Estate of Leon Stang, also known as Leon L. Stang, Defendant and Appellant, and Jake W. Gruebele, Administrator of the Estate of Brenda Gruebele, Defendant and Respondent. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Gross negligence is ordinarily a question of fact for the jury. It becomes a question of law for the court only where the evidence is such that reasonable minds can draw but one conclusion therefrom.

2. Excessive speed is a basis for a jury's finding of gross negligence where additional factors such as darkness, passenger protest, and deliberate inattention to driving are present.

3. The gross negligence of a driver is imputed to the owner-passenger of an automobile where the facts of the particular case indicate that the owner had a reasonable opportunity to exercise the right to control the operation of the automobile.

4. Where a guest has no prior knowledge protest, and deliberate inattention to excessive rate of speed and where an accident occurs approximately two minutes after the guest becomes a passenger, the guest does not assume the risk of the driver's grossly negligent driving.

5. The spouse of a party to a lawsuit is not excluded from testifying in behalf of that party by virtue of the dead man's statute, even though the spouse is a party to another suit which has been consolidated for trial purposes with the first suit.

6. When the jury returns to the court room and requests and receives additional, oral instructions, any part thereof charged as erroneous must be considered together with the whole of the additional instruction given and if the instruction as a whole correctly advises the jury as to the law, the error, if any, is thereby cured.

7. When considering the validity of a ruling on a motion for dismissal of a complaint, this court must consider the evidence in the light most favorable to the party against whom the motion was made.

8. On a motion for judgment notwithstanding the verdict the evidence must be viewed in the light most favorable to the party in whose favor the verdict was rendered and such motion should not be granted unless the evidence shows that the moving party is entitled to judgment on the merits as a matter of law.

9. A motion for a new trial is addressed to the sound discretion of the trial court and a denial of such a motion will only be overturned on appeal when it is clear that there was a manifest abuse of discretion.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendant and appellant Larry D. Stang, Administrator of the Estate of Leon Stang, also known as Leon L. Stang, and the Estate of Leon Stang, also known as Leon L. Stang.

Greenwood, Swanson, Murtha & Moench, Dickinson, for plaintiffs and respondents Roberta Kunze and Marlin Kunze.

Maurice LaGrave, Mandan, for defendant and respondent Jake W. Gruebele, Administrator of the Estate of Brenda Gruebele.

PAULSON, Judge (on reassignment).

Marlin Kunze, the husband of Roberta Kunze, commenced an action against Larry D. Stang (hereinafter Stang), administrator of the estate of Leon Stang, and Jake W. Gruebele, administrator of the estate of Brenda Gruebele, to recover damages for personal injuries resulting from an automobile accident. Roberta Kunza, his wife, also commenced a separate action against Larry D. Stang and Jake W. Gruebele, as respective administrators, to recover damages for personal injuries sustained in the same automobile accident. Each of the above defendants filed a separate answer, denying that they were negligent or grossly negligent and further alleging that the accident and the injuries, if any, sustained by Marlin Kunze and Roberta Kunze, were due to their own negligence; that each of the Kunzes assumed the risk of injury; and that their negligence contributed to their injuries. Since these actions arose from the same accident and the same set of facts, the cases were combined for trial pursuant to the consent of the parties. After the Kunzes rested, each of the defendants moved for a dismissal of the actions and at the close of the trial each of the defendants moved for a directed verdict and for a dismissal of the actions, which motions were resisted by the Kunzes, and which motions were denied by the trial court. These cases were submitted to the jury and verdicts were returned in favor of Marlin Kunze in the sum of $37,000 and in favor of Roberta Kunze in the sum of $24,000 (which was later reduced to $22,605.52) against Larry D. Stang, as administrator of the estate of Leon Stang, and Jake W. Gruebele, as administrator of the estate of Brenda Gruebele.

Larry D. Stang, as administrator of the estate of Leon Stang, and Jake W. Gruebele, as administrator of the estate of Brenda Gruebele, then made separate motions in each case for judgment notwithstanding the verdict or in the alternative for a new trial. The motions for judgment notwithstanding the verdict or in the alternative for a new trial were denied. Larry D. Stang, as administrator, has perfected appeals from the judgments and the orders denying the motions for dismissal, motions for a directed verdict, and for judgment notwithstanding the verdict or in the alternative for a new trial. A separate appeal was filed in each of the cases. However, since these cases were combined in the trial court, and have been appealed on the same record, they will be considered in one opinion.

Jake W. Gruebele, as administrator of the estate of Brenda Gruebele, has not appealed, even though a joint judgment was entered in each of the cases against Larry D. Stang and Jake W. Gruebele, as administrators.

The facts in this case are that Marlin Kunze and Roberta Kunze, his wife, met Leon Stang and Brenda Gruebele at a lake located near Regent, North Dakota, during the afternoon of July 4, 1967. The Kunzes, Leon Stang, and Brenda Gruebele met again that evening at a tavern located in Regent. It is conceded by all parties to this action that liquor was not a factor nor an issue in this case. These four individuals left the bar inRegent at approximately ten o'clock on the evening of July 4, 1967, for the purpose of driving to Mott to purchase some food, namely, hamburgers. Leon Stand was driving his car, a 1966 Chevrolet automobile, at the time the group left Regent. Shortly after leaving Regent, Leon Stang stopped his car and permitted Brenda Gruebele to drive it. The accident from which these lawsuits arose occurred approximately two miles past the point where the exchange of drivers took place, on North Dakota Highway No. 21, which is a hard-surfaced highway, having a traveled mat approximately 26 feet wide and adjacent ditches with gradual slopes. The highway at the point of the accident scene was level; the weather was clear and dry; and there were no other vehicles in the vicinity at the time. The car's lights were burning, even though it was not completely dark. Shortly after Brenda Gruebele assumed the operation of Stang's vehicle, she negotiated the gradual curve to the right in the highway. As the car entered the curve, Marlin Kunze noted that the speedometer registered 85 miles per hour and he requested Brenda to slow down as he wanted to live to eat the hamburgers--referring to the reason for the trip, namely, to purchase hamburgers. To this, Leon Stang replied that his car was capable of traveling at speeds up to 90 miles per hour. There was no evidence that the speed of the vehicle was reduced, and no further protest was made.

Approximately 800 feet past the curve, the Chevrolet gradually veered off the surfaced portion of the road and, entering the right ditch, traveled a distance of 560 feet in the ditch before striking an approach and culvert. The car's momentum was such that it crossed the approach, after which it came to rest on the other side of the approach. Brenda Gruebele and Leon Stang were instantly killed and the Kunzes were both severely injured.

Larry D. Stang, as administrator, urges that the evidence is insufficient to sustain the verdicts and, in addition, has assigned errors of law which occurred during the trial of the actions as grounds for the reversal of the judgments and the orders.

The first issue to confront us is whether the evidence is insufficient to sustain the verdict. Stang contends that the evidence was insufficient as a matter of law to support the verdicts of the jury that Brenda Gruebele was grossly negligent. The question of gross negligence ordinarily is a question of fact for the jury and becomes a question of law for the court only where the evidence is such that reasonable minds can draw but one conclusion therefrom. Thornburg v. Perleberg, 158 N.W.2d 188 (N.D.1968); Grenz v. Werre, 129 N.W.2d 681 (N.D.1964). We have persued the record and cannot say that reasonable minds could draw but one conclusion therefrom. The evidence was presented to the jury that the Stang vehicle operated by Brenda Gruebele was traveling at a speed of 85 miles per hour just prior to the accident. While this court has held that excessive speed does not of itself constitute gross negligence (Holcomb v. Striebel, 133 N.W.2d 435 (N.D.1965)), it is well established that excessive speed may serve as a basis for finding gross negligence when other factors are present. 5 Blashfield Auto Law 3rd Ed. § 213.22 (1966). In this case there were other factors present. The evidence does not conclusively establish the exact time of the...

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12 cases
  • Seibel v. Symons Corp.
    • United States
    • North Dakota Supreme Court
    • June 26, 1974
    ...is entitled to judgment as a matter of law, after considering the evidence in the light most favorable to the verdict. Kunze v. Stang, 191 N.W.2d 526 (N.D.1971); Linington v. McLean County, 161 N.W.2d 487 (N.D.1968); Johnson v. Frelich, 153 N.W.2d 775 (N.D.1967); Haga v. Cook, Supra. An exa......
  • Kerby v. Abilene Christian College
    • United States
    • Texas Supreme Court
    • December 12, 1973
    ...Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967); Dillon v. Humphreys,56 Misc.2d 211, 288 N.Y.S.2d 14 (Sup.Ct.1968); Kunze v. Stang, 191 N.W.2d 526 (N.D.1971); Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968); Roberts v. Bohn, 26 Ohio App.2d 50, 269 N.E.2d 53 (1971); Robinson v. Le......
  • Shark v. Thompson
    • United States
    • North Dakota Supreme Court
    • September 4, 1985
    ...case, it was clearly appropriate to apply the above standard in determining whether to allow the case to go to the jury. In Kunze v. Stang, 191 N.W.2d 526 (N.D.1971), the Court reaffirmed Thompson v. Nettum in a jury case where the defendant moved for dismissal and for a directed verdict un......
  • Kunze v. State Farm Mut. Auto. Ins. Co.
    • United States
    • North Dakota Supreme Court
    • May 1, 1972
    ...in the sum of $22,605.52. The judgments which incorporated these verdicts were affirmed by the majority of this court in Kunze v. Stang, 191 N.W.2d 526 (N.D.1971). Following remittitur of the records in the two cases, Marlin and Roberta separately brought actions against the defendant State......
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