Lapp v. J. Lauesen & Co.

• Decision Date: 10 August 1940
• Docket Number: 8308.
• Citation: 293 N.W. 536,67 S.D. 411
• Parties: LAPP v. J. LAUESEN & CO. et al.
• Court: South Dakota Supreme Court

293 N.W. 536

67 S.D. 411

LAPP v. J. LAUESEN & CO. et al.

No. 8308.

Supreme Court of South Dakota

August 10, 1940

Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.

Action by Katherine Lapp against J. Lauesen & Co. and another, for injuries resulting from automobile collision. From a judgment for plaintiff, defendants appeal.

Affirmed.

Williamson & Williamson, of Aberdeen, for appellants.

Van Slyke & Agor, of Aberdeen, for respondent.

ROBERTS Judge.

Plaintiff instituted this action to recover damages for personal injuries resulting from a collision between a Ford sedan owned and operated by Dan Lapp, husband of plaintiff, and a Ford truck owned by J. Lauesen & Co. and operated by J Lauesen, alleging that the driver of the truck turned to the left from a point where his truck was obstructed from view by another truck which preceded it and that he turned without warning or signal before passing the middle line of the intersection and without ascertaining whether or not a car was approaching from the opposite direction, causing the collision and injury sustained by the plaintiff.

Plaintiff and her husband, residents of Hebron, N. D., had been to Virgil, S. D., about 90 miles south of Aberdeen, and while returning the collision occurred. The accident occurred about 8 o'clock in the morning of September 28, 1938, within the city limits of Aberdeen where trunk highway No. 12 and Eleventh Street intersect. The highway runs east and west and Eleventh Street runs north and south. The city limits begin at Twelfth Street, a block west of the intersection where the car and truck collided. Beginning at the city limits there is a slight incline to the west. From Twelfth Street east past the intersection where the collision occurred the highway is practically level. Plaintiff was riding in the front seat with her husband and her sister-in-law was riding in the rear seat. While they were thus proceeding down the incline to the west of Aberdeen plaintiff and her husband observed a truck approaching from the east carrying a load of coal. Mr. Lapp testified that as they drew near the intersection he saw a truck behind the coal truck; that the driver of the second truck which was involved in the accident "took a long angling turn across the highway" without giving any signal indicating that he intended to turn into Eleventh Street. The right front fender of the Lapp car struck the right rear wheel of the truck. Plaintiff, concerning the control and speed of the car, testified: "I noticed from time to time how fast we drove. Mr. Lapp was driving between 35 and 40 miles an hour. As we were coming along east into Aberdeen he was not driving at the same speed that he drove in the country. I looked to see how fast he was driving when we were coming down the hill. He was driving 28 miles an hour. The car did not seem to go any faster after that * * * On the way coming up from Virgil he was not at any time driving faster than I thought was safe. I felt safe all the way coming up. It appeared to me that he was driving at a safe speed just before this happened. I was not nervous at any time until the accident happened. * * * We had not driven at a speed of over 40 miles an hour at any time on that trip. I had not asked him not to drive so fast at any time on this trip. I have asked him before--not so many times--once in a while. Sometimes he drives too fast. * * * A little over 40 then I think he drives too fast and I tell him about it."

Katie Fruehrer, the other passenger in the car, testified that Mr Lapp decreased the speed of his car to about 25 miles an hour when he approached the city limits.

From judgment entered on the verdict rendered in favor of plaintiff and from an order denying motion for new trial, defendants appeal.

We will first consider the claim that the husband of plaintiff was negligent and that such negligence was imputable to her. It is the settled law in this state that in the absence of some control or authority over the operation of the car by the wife, the negligence of the husband in driving the car is not imputable to his wife, who is riding with him as a passenger and will not prevent her from recovering against a third person for injuries sustained by reason of the concurring negligence of her husband and such third person. Pemberton v. Fritts, 56 S.D. 374, 228 N.W. 409; Ulrikson v. Chicago, M. St. P. & P. Ry. Co., 64 S.D. 476, 268 N.W. 369. Counsel for defendants concede that the mere fact that the parties are husband and wife is not the determining factor but that the circumstances must be such as to indicate that they were jointly...