Leonard v. North Dakota Co-Op. Wool Marketing Ass'n

• Citation: 6 N.W.2d 576,72 N.D. 310
• Decision Date: 30 November 1942
• Docket Number: 6853.
• Court: United States State Supreme Court of North Dakota

6 N.W.2d 576

72 N.D. 310

LEONARD v. NORTH DAKOTA CO-OPERATIVE WOOL MARKETING ASS'N.

No. 6853.

Supreme Court of North Dakota

November 30, 1942

Rehearing Denied Dec. 19, 1942.

Syllabus by the Court.

1. The questions of the existence of an agency and the scope and extent of the agent's authority are to be decided from all facts and circumstances in evidence and are primarily questions of fact for the jury. It is only when the evidence is such that reasonable minds could draw but one conclusion that these questions are for the court.

2. Where an injury is the result of separate and distinct acts of negligence by different persons operating and occurring simultaneously and concurrently each act may be regarded as a proximate cause and recovery may be predicated upon either or both acts.

3. Questions of negligence, contributory negligence and proximate cause are always questions of fact for the jury in an action for personal injuries unless the evidence is such that reasonable minds can draw but one conclusion therefrom.

4. The failure of the Trial Court to give a requested instruction to the effect that no damages for future detriment could be allowed except for detriment or damages which are certain to result in the future is held not to constitute prejudicial error under the circumstances in this case and in view of instructions that were given.

5. It is held for reasons stated in the opinion that a verdict of $17,153.55 is excessive and it is reduced to $12,000.00 with an option to the plaintiff to file a remission of the excess or retry the case.

NUESSLE and BURKE, JJ., dissenting.

Nilles Oehlert & Nilles, of Fargo, for appellant.

Simpson, Mackoff & Kellogg, of Dickinson, for respondent.

MORRIS, Judge.

This is an action for personal injuries received by the plaintiff in an accident involving the head-on collision of two automobiles on U.S. Highway No. 10 about 12 miles west of Jamestown North Dakota on June 29, 1940. The plaintiff was riding as a guest in an automobile owned and operated by John P. Grady. At the time of the accident this automobile was proceeding in a westerly direction. The other automobile was proceeding in an easterly direction. It was owned by the appellant corporation and at the time of the accident was being operated by Mrs. Paul Groff whose husband was riding with her. The case was tried to a jury and a verdict rendered in favor of the plaintiff. The North Dakota Co-operative Wool Marketing Association appeals from a judgment entered pursuant to this verdict and from an order of the District Court denying appellant's alternative motion for a judgment notwithstanding the verdict or for a new trial.

An automobile is not a dangerous instrumentality and as a general rule liability for the negligent operation of such a vehicle by one other than the owner cannot be predicated on mere ownership. Posey v. Krogh, 65 N.D. 490, 259 N.W. 757. The appellant contends that Mrs. Groff was operating the automobile at the time of the accident solely for the convenience and purpose of her husband and herself, and that its operation at that time was in no way connected with the appellant's business or under its authority. The plaintiff, on the other hand, contends that Mrs. Groff was operating the automobile as agent of the appellant and with the appellant's authority. Thus, the question of agency becomes the first question to be determined irrespective of any question of the negligence of the drivers of the two automobiles. It is a question of fact that has been determined in favor of the plaintiff by the jury under the instructions of the court. Some of these instructions have been challenged by the defendant.

The question of the existence of an agency and the scope and extent of the agent's authority is to be decided from all facts and circumstances in evidence and is primarily a question of fact for the jury. Ellis v. Nelson, 36 N.D. 300, 162 N.W. 554; McIntosh v. Dakota Trust Company, 52 N.D. 752, 204 N.W. 818 40 A.L.R. 1021; 3 C.J.S., Agency, § 330, p. 330.

At the time of the accident, Paul Groff, husband of the driver of the car, had been employed by the appellant corporation for about three years as a field representative or supervisor. The corporation was engaged in buying wool. In carrying on its business it had agents in various parts of the state. Paul Groff had authority to appoint such agents with the approval of the general manager. The home office of the corporation was in Fargo. Paul Groff's name appeared on the stationery of the corporation as field supervisor. He had authority to buy wool and to issue drafts. The corporation furnished him the automobile involved in the accident and reimbursed him for travelling expenses. It honored a draft drawn by him on June 26. It paid him a salary until the end of June, 1940. For sometime prior to the accident, Paul Groff worked in the vicinity of Minot. He became ill while staying at a hotel in that city. His wife left Fargo and joined him at Minot during his illness. The wife's name is Esther. There is in evidence a telegram dated at Minot, North Dakota, June 25, 1940 which reads as follows:

"Esther will drive coupe home Woodrow unnecessary condition improved."

The telegram bears the penciled notation in the handwriting of the manager "Phoned, advising we were sending man to drive car to Fargo."

The filing time at Minot is indicated as 10:23 P.M. The message was received in Fargo at 10:32 P. M. The record does not show when it was delivered although the manager admits receiving it. Woodrow is the son of the manager who testified that he intended to send the son to Minot to drive the car back to Fargo. Upon receipt of the telegram no one was sent to Minot and no further attempt to communicate with the Groffs was made. The manager says he "assumed the car was on the way in". Mr. and Mrs. Groff left Minot on June 28 and proceeded to Bismarck where they stayed all night. The following morning they started for Fargo and reached the point where the accident happened at about 11:00 o'clock A.M.

On July 2, 1940, the appellant, through its general manager executed an employer's report of Paul Groff's injury which contained the following questions and answers:

"Was employee injured in course of employment? Yes

"Was injured doing his regular work? Yes"

It is strenuously argued by the appellant that at the time the accident happened Mrs. Paul Groff was driving the automobile at the sole request of her husband and for his convenience, and that he had no authority as agent of the appellant to designate or authorize his wife to drive the car. Appellant cites the case of McIntee v. Baker, 66 N.D. 669, 268 N.W. 661, 664. However, in that case the undisputed evidence disclosed that "The car involved in the accident was not any car intrusted to the employee in the matter of his employment." This court reached that conclusion from facts that differ greatly from those now before us. In that case an employee of the defendant took a truck from the garage in which it had been placed by another employee and with two friends drove to a Sunday ball game in a neighboring town. An accident occurred while one of these friends of the employee was driving. The employer did not consent to or know of the use of the truck. It further appeared that upon arrival in the town where the ball game was to take place the employee and his friends stopped at a meat market to get some bologna where the proprietor made some inquiries about hides and asked the employee when he was coming up. The reply was that he "would be there sometime the coming week to pick them up." This court held as a matter of law that "at the time of the collision involved the employee was not engaged in the employer's business."

The jury having returned a verdict for the plaintiff is presumed to have determined all questions of fact within the jury's province in favor of the plaintiff. Among those questions are the agency of the driver of the car and whether, at the time the accident occurred, the driver was acting within the scope of her authority. It is only when the facts are such that reasonable minds could draw but one conclusion that these questions are for the court. Parker Motor Company v. Northern Packing Company, 58 N.D. 685, 227 N.W. 226; Kohlman v. Hyland, 54 N.D. 710, 210 N.W. 643, 50 A.L.R. 1437; Clark v. Feldman, 57 N.D. 741, 224 N.W. 167.

The automobile was furnished by the appellant as a means of transportation for its field supervisor, Paul Groff. He had authority to use it in the business of the company which entailed occasional trips to the home office at Fargo. The appellant strenuously contends that the record discloses no authority on the part of Paul Groff to delegate to another the right to drive the appellant's car or to employ a subagent to do so. However, the agency and authority of Mrs. Groff is not determined solely by this point. Paul Groff was ill and presumably unable to drive the car to Fargo. The inference may also be drawn from the record that the general manager of the appellant desired to have the car returned to Fargo. Groff and his wife also wanted to return to Fargo. The manager intended to send his son to Minot to drive the car back. When Groff learned this he telegraphed the manager that it would be unnecessary to send a driver to Minot for the car and that Mrs. Groff would drive it back. As matters then stood, this arrangement appeared to be mutually beneficial to all parties concerned. Mr. and Mrs. Groff would have transportation to Fargo and the appellant would have the car returned to its home office. After receiving the telegram the general manager made no further effort to communicate with his field supervisor. From these facts the jury might...