Rau v. Kirschenman

• Decision Date: 22 January 1973
• Docket Number: No. 8854,8854
• Citation: 208 N.W.2d 1
• Parties: Dwight RAU and Hertha A. Rau, Plaintiffs and Appellants, v. Steve KIRSCHENMAN and Emil Kirschenman, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 1

208 N.W.2d 1

Dwight RAU and Hertha A. Rau, Plaintiffs and Appellants, v. Steve KIRSCHENMAN and Emil Kirschenman, Defendants and Respondents.

Civ. No. 8854.

Supreme Court of North Dakota.

Jan. 22, 1973.

Rehearing Denied May 11, 1973.

Syllabus by the Court

1. The giving of instructions and the failure to instruct the jurors shall be deemed excepted to unless the court, before instructing the jurors, shall submit to counsel the written instructions which it proposes to give to the jurors and shall ask for exceptions to be noted, and thereupon counsel must designate such parts or omissions of such instructions as he may deem objectionable. Thereafter, only the parts or omissions so designated shall be excepted to by the counsel designating the same. Rule 51(c), N.D.R.Civ.P.

2. Instructions to the jury which are not seasonably excepted to after a request for such exceptions to the proposed instructions has been made to counsel by the district court become the settled law of the case and are not reviewable on appeal.

3. A motion for a directed verdict should not be granted unless the moving party is entitled to a judgment on the merits as a matter of law. In determining whether or not the moving party is entitled to a judgment on the merits as a matter of law, the evidence should be evaluated in the light most favorable to the party against whom the motion was made.

4. The plaintiffs in a wrongful death action were required to establish that the defendant-owner was guilty of gross negligence in entrusting his automobile to his codefendant son, a minor and an unlicensed driver, before the plaintiffs could recover from the defendant-owner for the wrongful death of their son where their son was riding in such owner's automobile as a guest of the defendant-owner's son at the time of the fatal accident and the defendant-owner was not an occupant of the automobile.

5. Violation of statutes prohibiting an owner from entrusting his automobile to an unlicensed driver is only evidence of negligence on the part of the owner and is not, without more, sufficient to support a finding of gross negligence.

6. Error which is harmless error is not ground for reversal.

Vogel, Bair & Brown, Mandan, for plaintiffs and appellants.

Linn Sherman, Steele, and Pearce, Engebretson, Anderson, Schmidt, Pearce & Thames, Bismarck, for defendants and respondents.

PAULSON, Judge.

This is an appeal by the plaintiffs, Dwight Rau and Hertha A. Rau, from a judgment of the district court dismissing their claims for relief against the defendants, Steve Kirschenman and Emil Kirschenman, for the wrongful death of James Rau, the son of the plaintiffs. The claim for relief against the defendant, Emil Kirschenman, was dismissed by the judge, pursuant to a motion for a directed verdict, at the close of the plaintiffs' case; and the claim for relief against the defendant, Steve Kirschenman, was dismissed pursuant to the jury's verdict.

The Raus' claim for relief against the defendant, Steve Kirschenman, arose as a result of James Rau's death while riding as a guest in an automobile driven by Steve Kirschenman. The Raus' claim for relief against the defendant, Emil Kirschenman, arose as a result of the fact that the automobile which Emil's son, Steve, was driving was owned by Emil, who had given Steve his consent to use his automobile for the purpose for which it was being used when the accident occurred which resulted in the death of James Rau.

The circumstances surrounding the fatal accident are summarized as follows:

On July 25, 1971, the defendant, Steve Kirschenman, a 14-year-old minor who was unlicensed to drive, after obtaining the consent of his father, Emil, to take the family car, drove to the farm home of the Raus to pick up James Rau for the purpose of going on a hunt for gophers in the area. The defendant, Emil Kirschenman, did not accompany the boys on the hunting trip. In the course of this hunt, Steve Kirschenman and James Rau were involved in a one-car rollover accident on a gravel road. As a result of this accident, James Rau was thrown from the car and killed.

The Raus allege that four errors occurred during the trial of their action. Two of these alleged errors occurred as a result of the instructions delivered by the district court to the jury. The first allegedly erroneous instruction dealt with the standard of care to which the minor defendant, Steve Kirschenman, should be held when engaged in an adult activity such as driving an automobile. The other allegedly erroneous instruction concerned the definition of 'gross negligence'. The other two alleged errors occurred as a result of the district court's admission into evidence of testimony of a general custom in the community of allowing unlicensed minors to drive in violation of state statutes and the district court's direction of a verdict for the defendant, Emil Kirschenman, at the close of the plaintiffs' case.

In response to the allegations of error occurring as a result of the district court's instructions to the jury, the Kirschenmans argue that this court is unable to review the allegedly erroneous instructions. The Kirschenmans' argument that this court is unable to review the allegedly erroneous instructions is based upon Rule 51(c) of the North Dakota Rules of Civil Procedure. Rule 51(c) provides, in pertinent part, as follows:

'Exceptions to instructions. The giving of instructions and the failure to instruct the jurors shall be deemed excepted to unless the court, before instructing the jurors, shall submit to counsel the written instructions which it proposes to give to the jurors and shall ask for exceptions to be noted, and thereupon counsel must designate such parts or omissions of such instructions as he may In support of their argument that Rule 51(c), N.D.R.Civ.P., precludes this court from reviewing the allegedly erroneous jury instructions, the Kirschenmans direct our attention to an affidavit of the official court reporter of the district court in which the cause was tried, which affidavit, by stipulation of both parties, was made a part of the settled statement of the case in this action. This affidavit states that the district court submitted to trial counsel for both parties the instructions complained of on this appeal, prior to their being delivered to the jury and that no exceptions to these instructions were taken at that time, even though the district court requested such exceptions to be noted. Therefore, on the basis of the court reporter's affidavit and Rule 51(c), N.D.R.Civ.P., the Kirschenmans argue that because trial counsel for the Raus failed to object to the allegedly erroneous instructions when presented with the opportunity to do so by the trial court, the Raus are unable to obtain a review of these instructions on appeal, even though they in fact may have been erroneous.

deem objectionable. Thereafter, only the parts or omissions so designated shall be excepted to by the counsel designating the same. . . .'

A review of the decisions of this court which construe and apply the requirements of Rule 51(c), N.D.R.Civ.P., clearly indicates that any instructions to the jury which are not seasonably excepted to after a request for such exceptions to the proposed instructions has been made to counsel by the district court, become the settled law of the case and are not reviewable on appeal. Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352 (N.D.1968); Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Julson v. Loyal Order of Moose Number 822, 140 N.W.2d 39 (N.D.1966); Geck v. Wentz, 133 N.W.2d 849 (N.D.1965); Klokstad v. Ward, 131 N.W.2d 244 (N.D.1964); Helgeson v. Locken, 130 N.W.2d 573 (N.D.1964); Chicago, M., St. P. & P.R. Co. v. Johnston's Fuel Liners, Inc., 122 N.W.2d 140 (N.D.1963). In light of these decisions and Rule 51(c), N.D.R.Civ.P., we conclude that because of the failure of plaintiffs' trial counsel to except to the instructions now complained of, even though a timely request for such exceptions was made by the district court prior to delivering the instructions to the jury, it would be inappropriate for this court to review any alleged errors in the instructions.

Having concluded that any errors attributable to erroneous jury instructions are not reviewable, we shall now discuss the two remaining errors charged by the plaintiffs, Dwight Rau and Hertha A. Rau, which are properly reviewable on this appeal. The first of these two alleged errors which we shall discuss arises as a result of the district court's direction of a verdict in favor of the defendant, Emil Kirschenman, at the close of the plaintiffs' case.

The claim for relief against Emil Kirschenman was based upon his alleged negligent entrustment of his automobile to his son, Steve, a minor who was unlicensed to drive. At the close of the plaintiffs' case, Steve and Emil Kirschenman moved for a directed verdict in their favor. This motion was granted by the district court with respect to Emil and denied with respect to Steve.

A motion for a directed verdict should not be granted pursuant to Rule 50(a), N.D.R.Civ.P., unless the moving party is entitled to a judgment on the merits as a matter of law. Valenta v. Life Insurance Company of North America, 196 N.W.2d 393 (N.D.1972); Klein v. Harper, 186 N.W.2d 426 (N.D.1971); Leach v. Kelsch, 106 N.W.2d 358 (N.D.1960); Olson v. Cass County Electric Co-operative, Inc., 94 N.W.2d 506 (N.D.1959). In determining whether or not the moving party is entitled to a judgment on the merits as a matter of law, the evidence should be evaluated in the light most favorable to the party against whom the motion was made.

Thompson v. Nettum, 163 N.W.2d 91 (N.D.1968); State Automobile & Casualty Underwriters v. Skjonsby, 142 N.W.2d 98 (N.D.1966); Stokes v. Dailey, 85 N.W.2d 745 (N.D.1957). However, before these rules for determining the propriety of the granting of a motion for a directed...