Nuelle v. Wells
| Decision Date | 22 November 1967 |
| Docket Number | No. 8446,8446 |
| Citation | 154 N.W.2d 364 |
| Parties | James A. NUELLE, a minor, by Hans W. Reinhardt, his Guardian ad litem, Plaintiff, v. Robert WELLS, Defendant and Third-Party Plaintiff and Appellant, and Howard NUELLE and Ellen Nuelle, Third-Party Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. In this state there is no common law in any case in which the law is declared by the Code. N.D.C.C. § 1--01--06.
2. Everyone is responsible not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter, willfully or by want of ordinary care, has brought the injury upon himself. N.D.C.C. § 9--10--06.
3. For reasons stated in the opinion the judgment of the trial court which dismissed the defendant's third-party complaint--which alleged that if the defendant was found liable to the plaintiff, an unemancipated minor, for the defendant's negligence, the third-party defendants (the parents of the plaintiff) were jointly liable with the defendant and third-party plaintiff, and the defendant and third-party plaintiff was entitled to a contribution from the third-party defendants of two-thirds of that sum which the defendant and third-party plaintiff was found liable to the plaintiff--is reversed.
O'Grady, Edwards & Galloway, Grand Forks, for plaintiff.
Duffy & Haugland, Devils Lake, for defendant and third-party plaintiff and appellant.
Letnes, Murray & Marshall, Grand Forks, for the third-party defendant and respondent Ellen Nuelle.
Degnan, McElroy, Lamb & Camrud, Grand Forks, for third-party defendant and respondent Howard Nuelle.
James A. Nuelle, through his guardian ad litem, brought an action against Robert Wells, seeking damages for injuries which he suffered when the car in which he was riding, being driven by his mother Ellen Nuelle, collided with a pickup truck being driven by Mr. Wells. The accident occurred on a county road about 4 3/4 miles southwest of Langdon on October 12, 1962. The complaint alleged that James's injuries were the direct and proximate result of Mr. Wells's negligence in the operation of the pickup truck.
Mr. Wells filed an answer denying that he was in any respect negligent and alleging that Ellen Nuelle, while driving the family-owned vehicle, negligently drove it into a cloud of smoke and on the wrong side of the road, thus causing the accident. He further alleged that James's father Howard Nuelle was negligent in burning a stubble field adjacent to that road, causing smoke to drift across the road in such a manner that the visibility was restricted for a considerable distance on the road at the time and the place of the accident. He alleged that the combined negligence of Ellen and Howard Nuelle was the sole and proximate cause of the accident.
In addition to this answer Mr. Wells filed a third-party complaint, alleging facts similar to the facts alleged in his answer and asserting that Ellen was grossly negligent in the manner in which she drove her automobile. He again asserted that the sole and proximate cause of the accident was the gross negligence of Ellen and the negligence of Howard. In the concluding part of the third-party complaint, however, mr. Wells asserted that if it should be determined that he was liable, Ellen and Howard also, as third-party defendants, were jointly liable; and thus that he would be entitled to a contribution from them. His prayer for relief asked for a contribution from Ellen and Howard of two-thirds of whatever sum he might be adjudged liable to James.
The third-party defendants, Ellen and Howard, Nuelle, moved for a dismissal of the third-party complaint on the ground that it failed to state a claim upon which relief could be granted, on the premise that an unemancipated minor cannot maintain a tort action against his parents. The court treated the motion to dismiss as a motion for summary judgment under N.D.R.Civ.P. 12(b) and ordered a summary judgment of dismissal of the third-party complaint with prejudice. Mr. Wells has appealed from the summary judgment which was entered pursuant to the court's order.
In its order for summary judgment the trial court found that ours is a common law state and that there was no statutory provision in this state permitting an unemancipated minor to have a claim against his parents in tort; and that therefore the third-party complaint did not state a claim for which relief could be granted. We believe that in taking this view the trial court erred, for in this state there is no common law in any case in which the law is declared by the Code. N.D.C.C. § 1--01--06.
The legislature has established the law that applies in this case, and that law is § 9--10--06, which reads as follows:
9--10--06. Willful acts and negligence--Liability.--Every one is responsible not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter, willfully or by want of ordinary care, has brought the injury upon himself. The extent of the liability in such cases is defined by sections 32--03--01 to 32--03--19, inclusive.
Except for the effect of the guest statute, contained in Chapter 39--15...
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