Motley v. Standard Oil Co.

• Decision Date: 22 January 1932
• Docket Number: No. 5962.,5962.
• Citation: 61 N.D. 660,240 N.W. 206
• Parties: MOTLEY v. STANDARD OIL CO. et al.
• Court: North Dakota Supreme Court

61 N.D. 660

240 N.W. 206

MOTLEY

v.STANDARD OIL CO. et al.

No. 5962.

Supreme Court of North Dakota.

Dec. 15, 1931.

Rehearing Denied Jan. 22, 1932.

Syllabus by the Court.

1. While the fact of agency and the extent of authority of an agent cannot be proven by the declarations of an agent, the agent is a competent witness to prove the fact of agency and the extent of his authority in all cases where an agency can be established by parol.

2. In an action to recover damages for personal injuries sustained in a collision between an automobile and a truck, it is held, for reasons stated in the opinion:

(a) That the questions of negligence and contributory negligence were for the jury.

(b) That there was substantial, competent evidence tending to establish that the defendant Potter, at the time of the collision, was an employee of the defendant Standard Oil Company, and engaged in discharging duties which he had been employed to perform.

3. Certain assignments predicated upon instructions given and refused are examined, and it is held that the rulings complained of did not operate to prejudice any substantial rights of the defendants or prevent either of them from having a fair trial.

Appeal from District Court, Bottineau County; Buttz, Judge.

Action by Max Motley against the Standard Oil Company and another. From a judgment for the plaintiff, and from an order denying their motion for a judgment notwithstanding the verdict, or for a new trial, defendants appeal.

Judgment and order affirmed.Nestos, Herigstad & Stenersen, of Minot, for appellants.

W. H. Adams, of Bottineau, for respondent.

CHRISTIANSON, C. J.

Plaintiff brought this action to recover damages for personal injuries sustained as the result of a collision between an automobile driven by the plaintiff and a truck driven by the defendant George Potter. The complaint alleges that the defendant Potter was “the servant and employee” of the defendant Standard Oil Company and, at the time of the collision, operated the truck for the said Standard Oil Company as such servant. The complaint contains the usual averments and charges that the collision was occasioned by, and the resulting injuries to the plaintiff were due to, the negligence of the said defendant, George Potter, in operating the truck. The two defendants interposed separate answers. Each answer admitted the corporate existence of the Standard Oil Company, but denied all other allegations in the complaint. The answer of the Standard Oil Company also specifically denied that it was the owner or in control of the truck mentioned in plaintiff's complaint. Each answer, however, admitted the collision, but alleged that it was occasioned by the negligence of the plaintiff. It was also alleged that the plaintiff failed to keep the automobile on his side of the road, and drove it in or near the center of the road; that the automobile was equipped with insufficient and dim headlights, with the lenses sprayed with paint, and that he allowed his left arm to project out of the window of the automobile while he was driving.

The case was tried to a jury, and resulted in a verdict in favor of the plaintiff. The defendants moved for judgment notwithstanding the verdict, or for a new trial. The motion was denied and defendants appeal.

There is no dispute in the evidence but that the collision occurred, and that the plaintiff was seriously injured as a result of it. There is likewise no dispute as to the particular injury sustained by the plaintiff. The accident occurred on the evening of August 25, 1929. The plaintiff was driving a Ford coupé. Another young man, named Sachs, was riding with him. They were both employees of the Otter Tail Power Company. Potter was driving a truck filled with gasoline belonging to the Standard Oil Company, which he was delivering for that company. There was protruding from the side of the truck a rack in which grease cans were kept. This rack protruded to some extent on the side of the truck. The defendant Potter testified that he saw the car approaching when it was about half a mile away, and that it was in sight at all times after that time. The plaintiff was driving with his left arm resting on the ledge of the window, so that the elbow protruded some four or five inches. In passing the truck, the elbow was caught in the protruding rack, with the result that the arm was badly shattered and the bones of the forearm protruded through the skin, and a part of the skin was left on the rack. There was a square conflict in the testimony as to the relative positions of the car and truck at the time the accident occurred. According to the testimony of the defendant Potter, he drove his truck to the extreme edge of the road on the right-hand side, and the automobile did not yield sufficient space, but stayed near the center of the road, and as they were about to pass the automobile veered toward the truck and crashed into it. According to the testimony of the plaintiff and the man who was riding with him, the automobile was driven as near the right-hand edge of the road as was possible, and the truck failed to give sufficient space for passage, with the resulting collision. The defendant produced certain witnesses, who went out to the place where the accident occurred on the evening immediately following the accident to examine the road and ascertain the relative positions of the truck and the automobile. Their testimony tends to corroborate that of the defendant Potter. The evidence, however, shows that the road was a well-traveled one; that, while there was a certain amount of loose gravel, in a general way the road was well packed. Viewing the testimony as a whole, we are all agreed that it cannot be said that the evidence adduced by the defendant as to the relative locations of the car and truck at the time of the accident is so conclusive as to eliminate this as a question of fact and make it one of law. We are of the opinion that the evidence presents a question of fact for the jury, and that upon the record it was for the jury to say which version was correct, that asserted by ...