Pearson v. Erb
| Decision Date | 10 April 1957 |
| Docket Number | No. 7670,7670 |
| Citation | 82 N.W.2d 818 |
| Parties | Donald E. PEARSON, Plaintiff and Appellant, v. Paul ERB and Omar Erb, Defendants and Cross-Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where a person drives an automobile with the permission of the owner under circumstances which exclude the existence of a joint enterprise, the driver may be either a bailee or an agent or servant of the owner depending on who has the right of control. The right of control rather than the exercise of the right is the decisive factor in determining whether the relationship between the owner and driver is one of bailment or of principal and agent.
2. The question of whether the owner of an automobile is liable for the damage caused by its negligent operation by another is governed by the law of the state where the damage occurred.
3. Whether either the contributory negligence of the plaintiff-owner of an automobile or the contributory negligence of another operating it with the owner's consent, express or implied, is a defense to an action by the owner for negligent injury depends upon the law of the place of injury, but the law of the forum governs the proof in court of the facts alleged and the sufficiency of the evidence to raise an issue for the jury.
4. Where the owner of a motor vehicle being driven by another is an occupant thereof, there is a rebuttable presumption that the owner has control over it and the driver is acting as his agent.
5. In the absence of evidence to rebut the presumption that the owner-occupant of an automobile being driven by another is in control thereof, the negligence or contributory negligence of the driver in operating the automobile is imputable to the owner.
6. The application of the foregoing rule is not affected by the fact the owner and driver are husband and wife.
Burnett, Bergesen, Whittlesey, Shermoen & Pancratz, Fargo, for plaintiff and appellant.
Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendants and cross-appellants.
This is an action by the plaintiff to recover for damage to his automobile and personal injuries sustained by him in a collision of an automobile owned by the plaintiff in which he was riding and driven by his wife with one owned by the defendant Omar Erb and driven with his permission by the defendant Paul Erb on a public highway in the State of Minnesota on November 26, 1953. Omar Erb, who was not an occupant of his automobile, counterclaimed for damages to his car and for medical expense incurred for attention to injuries sustained by his minor daughter Dorothy Erb who was a passenger in his automobile. The jury rendered a verdict in favor of the plaintiff and against both defendants in the sum of $5,588.27 and in favor of the defendant Omar Erb against the plaintiff in the sum of $363.05.
The defendants having moved for a directed verdict at the close of the evidence made a motion in the alternative for a judgment notwithstanding the verdict of the jury or for a new trial. The trial court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial upon the ground of certain specified errors of law occurring at the trial. The plaintiff has appealed from that part of the trial court's order granting the new trial. The defendants have appealed from that part of the order denying their motion for judgment notwithstanding the verdict.
The following facts appear from the testimony of the plaintiff and his wife: They are residents of Fargo, North Dakota. At about 8:30 a.m. on Thanksgiving Day, November 26, 1953, the plaintiff, his wife, and three small children left Fargo in the plaintiff's automobile. The purpose of the trip was one of pleasure. Their destination was the home of the plaintiff's parents about five miles north of Park Rapids, Minnesota, where they expected to have Thanksgiving dinner. The plaintiff used his car in his business as a salesman and also as a family car. The plaintiff's wife also owned an automobile which she used to drive around town. They took the plaintiff's car as they usually did in making long trips because it was in better mechanical condition than the car belonging to the wife. The wife got into the driver's seat at home without any request by or agreement with her husband as to who should drive He sat beside her and held the youngest child who was about a year old. She drove without stopping to a point about nine miles northeast of Detroit Lakes, Minnesota, on Highway Number 34 where the accident happened. It occurred at about ten o'clock a.m. The visibility was clear and the highway, a blacktop or tarvia surface, was dry. It was about twenty or twenty-five feet wide. The general terrain in the vicinity of the accident was hilly. The plaintiff's car overtook another car driven by Paul Erb near the bottom of a small hill. Plaintiff's wife was driving about 55 or 60 miles an hour. The Erb car was traveling about 45 miles per hour. As she approached the Erb car she slowed down to about 45 miles per hour also and followed the Erb car up the hill. She states:
As she swung in the collision took place. The right front corner of her car struck the left rear corner of the Erb car. She saw no other signal from the Erb car other than the brake lights go on. She was about three car lengths from that car when the lights appeared. The Erb car slowed down preparatory to making a left turn into a church driveway at the top of the hill. The driver of the Erb car gave no signal of intention to turn. His car was still in the right traffic lane when it was struck but had moved to the left near the center line, probably one or two feet from it. The plaintiff's car was moving about twenty miles and defendants' car about five miles an hour at the time of impact. Plaintiff's wife drove his car frequently. When asked how she happened to be driving at the time of the accident, she said: 'Well, both my husband and I like to drive, and I just happened to be driving, I guess.' The plaintiff and his wife had driven to his parents' home eight or nine times a year for the past six or seven years. They had shared the driving. It appears to have been customary for one of them to drive one way and the other to drive on the return trip. She stated:
The plaintiff gave his wife no instructions with respect to her manner of driving. In cross-examination on the question of his right to control the operation of the car, the following appears:
The defendant Omar Erb lives with his family on a farm near Amenia, North Dakota. On the morning of the accident the defendant Paul Erb, who was twenty years of age, and his three teen age sisters took their father's car with his consent to go to the church that has been mentioned as being near the scene of the accident. On the way they stopped at Casselton, North Dakota, and picked up a fourth girl who accompanied them on the trip. Paul readily admits that he failed to signal as he was about to make a left turn into the church driveway at the time of the collision.
The accident having happened in the State of Minnesota, the liabilities of the parties must be determined according to laws of that state. Cyclopedia of Automobile Law and Practice, Blashfield, Volume 9, Section 5791.
'The question whether conduct which caused damage was negligent, so as to make the one guilty of it liable for a wrong, is determined by the law of the place where the act or omission claimed to be the cause of the damage took place.' The Conflict of Laws, Beale, Volume 2, Section 379.1.
'Whether contributory negligence of the plaintiff is a defence, in whole or in part, to an action for a negligent injury depends upon the law of the place of the injury.' The Conflict of Laws, Beale, Volume 2, Section 385.1.
And in the following section it is said:
'And the question whether the negligence of a driver will be imputed to his passenger is likewise governed by the law of the place of wrong.'
Subdivision 5 of Section 169.19, M.S.A., Laws 1947, Chapter 428, Section 16, provides:
'A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.'
Minnesota has a statute known as the Safety Responsibility Act, Chapter 170, M.S.A., which has replaced the family purpose doctrine. That doctrine is no longer in operation in that state. Ellingboe v. Guerin, 228 Minn. 211, 36 N.W.2d 598; Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 712, 11 A.L.R.2d 1429.
M.S.A. § 170.54 provides that whenever any motor vehicle shall be operated upon any public street or highway by any person other than the owner with the consent of the owner, express or implied, the operator shall in case of accident be deemed the agent of the owner in the operation of the motor vehicle. In Jacobsen v. Dailey, supra, that statute was construed and held
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