Norgaard v. Nodak Mut. Ins. Co.

• Decision Date: 31 October 1972
• Docket Number: No. 8838,8838
• Citation: 201 N.W.2d 871
• Parties: Richard NORGAARD, Plaintiff and Appellant, v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 871

201 N.W.2d 871

Richard NORGAARD, Plaintiff and Appellant, v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Respondent.

Civ. No. 8838.

Supreme Court of North Dakota.

Oct. 31, 1972.

Syllabus by the Court

1. The phrase 'as result of', as contained in the automobile insurance policy in the instant case, is not to be construed to mean 'proximately caused by'.

2. An injury is not the result of the use of an automobile if it is directly caused by some independent act or intervening cause wholly disassociated from, independent of, and remote from its use.

3. The use of the rifle in the instant case, notwithstanding that it rested upon the roof of an automobile at the time of its discharge, constituted an independent and intervening cause of the injury and death of the passenger who had alighted from or who was alighting from the automobile at the time of the discharge of the rifle.

Ohnstad, Twichell, Breitling & Arntson, West Fargo, for plaintiff and appellant.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendant and respondent.

ERICKSTAD, Judge.

Richard Norgaard, as plaintiff, appeals from the judgment of the district court of Cass County entered on November 10, 1971, which dismissed his complaint against the defendant Nodak Mutual Insurance Company.

The material allegations of the complaint are that Nodak was at all times pertinent to this lawsuit authorized to do insurance business within the State of North Dakota; that Richard was the owner of a certain 1959 model Chevrolet automobile; that an insurance policy covering the said automobile was issued to Richard and was in effect at all times pertinent; that by the terms of the policy Nodak contracted to defend in the insured's name and on his behalf any suit brought against the insured arising out of the occurrence of any accident covered by the insurance policy issued to the insured; that James Baldock and Esther Baldock claimed that on the 20th of August 1967, while the policy was in full force and effect, their son Stanley Baldock met with an accident as a result of Richard's careless, reckless, and negligent use of said automobile; that thereafter due notice was given Nodak of said accident; that during January of 1969 the Baldocks commenced an action against Richard in the district court of Cass County, which was subsequently transferred to the district court of Steele County, to recover damages sustained by reason of the injuries suffered by their son Stanley; that Richard forwarded to Nodak the summons and complaint served upon him and requested Nodak to defend the action, but that Nodak refused to defend the action and returned the summons and complaint to Richard, suggesting that he procure the services of an attorney of his own choosing in order to put in an answer prior to the expiration of the period for answering, in order to avoid a default judgment; that thereafter Richard retained the services of Nelson, Mack & Moosbrugger, attorneys at law, Grand Forks, North Dakota, to represent and defend him in said action; that on the 26th of January 1970 the trial of said action was duly had in the district court of Steele County, in which Richard was duly represented by John Moosbrugger of the aforesaid law firm; that the district judge, the Honorable Adam Gefreh, found the Baldocks entitled to recover $7,500 in damages plus costs; that on the 24th of February 1970, a judgment was duly entered upon said findings in favor of the Baldocks and against Richard in the sum of $7,500 plus costs and disbursements of $31.10; that Richard incurred legal expenses in the defense of the action in the sum of $1,500; and that prior to the commencement of this action against Nodak, Richard demanded that Nodak indemnify him in the sum of $9,031.10, but that Nodak refused to do so. The prayer for relief is that Richard receive a judgment against Nodak in the sum of $9,031.10, plus interest, costs, and disbursements.

The pertinent allegation of the answer filed by Nodak is that the policy does not cover the death of Stanley Baldock, nor the judgment obtained against Norgaard arising out of said death, nor the attorney fees and costs incurred by Norgaard in defense of the Baldock action, nor the interest on the judgment, as the death was not 'a result of the ownership, maintenance or use of the automobile described' in the policy.

The pertinent findings of the trial court in the Baldock action are contained in paragraphs II through VI of the trial court's findings of fact, as follows:

'II.

'That on the afternoon of August 20, 1967, the defendant, Richard Norgaard, was in the control of a 1959 Chevrolet Fordor Sedan automobile and did use and operate said automobile to go hunting.

'III.

'That the defendant, Richard Norgaard, while operating and in control of said automobile, did stop said automobile, alight from the same and while using the roof of the automobile as a gun rest did, in a careless, reckless and negligent manner, with wanton disregard for the safety of others, discharge said rifle in such a manner that the bullet discharged therefrom struck Stanley Baldock, the deceased eldest son of the plaintiffs, as he was getting out of the automobile.

'IV.

'That as a result of the carelessness, recklessness, and negligence of the defendant, Richard Norgaard, Stanley Baldock did receive a bullet wound in his head, suffered great pain and died on September 2, 1967.

'V.

'That as a result of said death, the plaintiffs have been wrongly deprived of the services, companionship, and financial assistance of their eldest son, the deceased Stanley Baldock.

'VI.

'That as a result of the carelessness, recklessness, and negligence of the defendant, Richard Norgaard, the plaintiffs herein have suffered and endured great pain, incurred expenses for medical attention, hospitalization, funeral, and travel, said expenses exceeding Three Thousand Two Hundred and no/100 ($3,200.00) and have suffered pecuniary loss and injury as a result of the death of their son, which, together with the medical, hospital, funeral, and travel expenses total Seven Thousand Five Hundred and no/100 ($7,500.00).'

The pertinent facts in the subsequent action initiated by Norgaard against Nodak are stated in paragraph I of the trial court's findings of fact, as follows:

'. . . on August 20, 1967, the Plaintiff and three young companions, each of whom was armed with a .22 caliber rifle, embarked on a Sunday afternoon hunting expedition. The hunting party was being transported by an automobile owned and operated by the Plaintiff. The incident giving rise to this lawsuit occurred after the Plaintiff and his companions had stopped a number of times to shoot at small birds and, on the occasion in question, the Plaintiff and two of the other companions, stepped out of the stopped automobile to shoot at some blackbirds. The Plaintiff stepped out of the automobile on the driver's side and was using the roof of the car as a bench rest to shoot at the blackbirds, which were located in a field on the opposite side of the car. The Plaintiff had fired once and just as he fired a second time, a head appeared in the scope of his rifle and, upon investigation, he learned that the fourth member of the group, who had not gotten out of the automobile originally, had stepped out and stood up directly in the line of fire of the Plaintiff's rifle and was shot in the head, receiving a fatal injury therefrom.'

The trial court in the Norgaard action against Nodak found: 'That the fatal shooting of Stanley Baldock arose out of facts and circumstances which had no causal relationship to, and did not arise out of the ownership, maintenance, or use of the automobile owned and operated by the Plaintiff and, therefore, the damages resulting therefrom are not within the coverage of the policy of insurance issued by the Defendant.'

As the crucial facts in this case are not in dispute, we shall include them herein as summarized in Norgaard's brief filed with this court.

On the afternoon of August 20, 1967, Richard Norgaard and Stanley Baldock, along with two other companions, embarked on a hunt for blackbirds, hawks, and other fowl. Richard, along with his hunting companions, proceeded to drive the countryside between the towns of Hatton and Finley, North Dakota, scrutinizing the roadways and fields for intended game. For transporation, the four young men used...