Rokusek v. Bertsch

• Decision Date: 08 November 1951
• Docket Number: No. 7180,7180
• Citation: 78 N.D. 420,50 N.W.2d 657
• Parties: ROKUSEK v. BERTSCH.
• Court: North Dakota Supreme Court

Page 657

50 N.W.2d 657

78 N.D. 420

ROKUSEK v. BERTSCH.

No. 7180.

Supreme Court of North Dakota.

Nov. 8, 1951.

Syllabus by the Court.

1. Where a party to an action, after an adverse verdict and judgment, moves for judgment notwithstanding the verdict or for a new trial and thereafter abandons the motion for a new trial and elects to stand solely upon the motion for judgment notwithstanding the verdict, and after an adverse ruling upon such motion appeals from both the order denying his motion and from the judgment entered in the action, the only question for review upon such appeal is whether such party was, upon the record, entitled to a judgment in this favor as a matter of law.

2. Upon review of trial court's order denying a motion for judgment notwithstanding the verdict, this court will take the view of the evidence most favorable to the party against whom the motion was directed.

3. Gross negligence is to all intents and purposes no care at all. It is the omission of the care which even the most inattentive or thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.

4. Willful misconduct in relation to the 'guest statute', denotes intentionally doing that which should not be done or failing to do that which should be done, with knowledge, express or implied, that injury to a guest will probably result or with reckless disregard of the possibility that injury to a guest may result.

5. Questions of negligence are questions of fact unless the evidence is such that only one conclusion can be deduced therefrom.

6. The evidence in this case permits a reasonable inference that defendant's son while driving an automobile engaged in a race with another automobile, and while so racing deliberately executed dangerous maneuvers with the automobile; such an inference is sufficient to justify a finding of willful misconduct or gross negligence.

Mackoff, Kellogg & Muggli, Dickinson, for defendant and appellant.

Jacobsen & Child, Mott, Murray & Murray, Bismarck, for plaintiff and respondent.

BURKE, Judge.

Plaintiff's son Millard Rokusek was killed while riding in an automobile driven by defendant's son, Albert Bertsch. Plaintiff brought this suit for damages, alleging that at the time of his son's death, Albert Bertsch was operating defendant's automobile for a family purpose with the consent of the defendant and that Millard Rokusek's death was proximately caused by the gross negligence and willful misconduct of Albert Bertsch. The defendant in his answer, alleged that Millard Rokusek, at the time of his death was a guest in the automobile operated by his son, denied that his son had been guilty of any negligence and alleged that both plaintiff and plaintiff's son had been guilty of contributory negligence.

At the trial of the action, both at the close of plaintiff's testimony and after both sides had rested, defendant moved for a directed verdict. The motion was denied. The case was submitted to the jury and a verdict was returned in favor of the plaintiff. Thereafter defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Before this motion was heard, defendant abandoned his motion for a new trial and elected to stand solely upon the motion for judgment non obstante. This motion was denied. Defendant has appealed from the order denying the motion and from the judgment entered in the case. Upon such an appeal only the ruling on the motion for judgment notwithstanding the verdict may be reviewed and the correctness of that ruling depends upon whether the moving party was entitled to a directed verdict at the time the motion for a directed verdict was made. Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456; Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 95 A.L.R. 418; First Security Bank v. Bagley Elevator Co., 61 N.D. 140, 237 N.W. 648. In reviewing the trial court's ruling upon such a motion, this court will take the view of the evidence most favorable to the party against whom the motion was directed. Haser v. Pape, N.D., 39 N.W.2d 578; Thompson v. Smith, 45 N.D. 479, 178 N.W. 430.

As a basis for his contention that his motion for a directed verdict should have been granted, the defendant asserts.

(1) that the evidence in the case affirmatively established that plaintiff's son was a guest of the defendant at the time he was injured and that there is no evidence of gross negligence or willful misconduct on the part of defendant's son, (2) that if the evidence be held sufficient to permit the jury to find that plaintiff's son was not a guest of the defendant, it is nevertheless insufficient to permit the jury to find ordinary negligence on the part of defendant's son.

The same contentions were made by defendant in his motion for a directed verdict upon the trial of the case. After denying the motion the trial judge submitted to the jury, as a question of fact, the question of whether plaintiff's son, was a guest of the defendant. He instructed them that, if they found plaintiff's son was a guest, they must also find gross negligence or willful misconduct on the part of the defendant's son in order to charge the defendant with liability. He also instructed them that, if they found plaintiff's son was not a guest, ordinary negligence on the part of defendant's son would be sufficient to impose liability.

The jury returned a general verdict against the defendant. Upon which theory they assessed liability it is impossible to say. Because of the nature of this appeal, however, the judgment of the district court must be affirmed if the evidence is sufficient to sustain the jury's verdict upon either theory. If, therefore, the evidence will warrant a finding of gross negligence or willful misconduct, our consideration of the case need go no farther.

The 'guest statute', NDRC 39-1503 provides that the 'owner, driver, or person responsible for the operation of a vehicle' shall be liable to a guest only where 'injury to or death of a guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver, or person responsible for the operation of such vehicle.'

"Gross negligence' is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.' Rubbelke v. Jacobsen, 66 N.D. 720, 722, 268 N.W. 675, 676; Erickson v. Foley, 65 N.D. 737, 262 N.W. 177. Willful misconduct denotes intentionally doing that which should not be done or failing to do that which should be done, with knowledge, express or implied, that injury to a guest will probably result or with wanton and reckless disregard of the possibility that injury to a guest may result. Anderson...