Roth v. Jelden, 9967

• Citation: 80 S.D. 40,118 N.W.2d 20
• Decision Date: 23 November 1962
• Docket Number: No. 9967,9967
• Parties: Marvin ROTH, Plaintiff and Respondent, v. Winfred JELDEN and Westside Implement Company, Defendants and Appellants.
• Court: Supreme Court of South Dakota

Page 20

118 N.W.2d 20

80 S.D. 40

Marvin ROTH, Plaintiff and Respondent, v. Winfred JELDEN and Westside Implement Company, Defendants and Appellants.

No. 9967.

Supreme Court of South Dakota.

Nov. 23, 1962.

Fellows, Fellows, & Tinan, Mitchell, Woods, Fuller, Shultz & Smith, J. B. Shultz, Sioux Falls, for defendant and appellants.

Francis L. Burns, Sioux Falls, Shandorf & Slocum, Mitchell, for plaintiff and respondent.

RENTTO, Presiding Judge.

This litigation grows out of a nocturnal intersectional collision of two automobiles. The jury awarded plaintiff $63,000 for personal injuries suffered by him. Judgment in this amount was entered against each of the defendants. The Westside Implement Company moved for judgment notwithstanding the verdict which was denied and both defendants moved for a new trial. These were also denied but on condition the plaintiff consent to a reduction of the verdict by $13,000. Upon plaintiff's acceptance of the reduction, judgment was entered for $50,000. Defendants appeal therefrom.

The Westside Implement Company is a partnership composed of the defendant Winfred Jelden and Edwin Wilson, engaged in retailing farm machinery with its place of business at Mitchell, South Dakota. Jelden was the general manager actively in charge of its operation doing most of the buying and selling. Wilson had other employment and worked in the partnership business only occasionally.

On March 19, 1959, the date of the accident, Jelden left the partnership place of business at about 5 p. m. to call on a farmer living about 8 miles northwest of Yankton for the purpose of selling him some machinery. This customer had recently been at the partnership place of business and apparently evidenced an interest in buying some items handled by it. His mission resulted in the sale of two new tractors and two plows. On this trip Jelden drove his own 1954 Oldsmobile. From Mitchell he traveled south on Highway 37 to its juncture with Highway 50 about 17 miles south of Tripp, South Dakota, and then on Highway 50 to the farm.

Highway 37 in the vicinity of Tripp runs generally north and south a short distance west of the town. Jelden traveled that route on his way to the farm. This portion of the road is referred to as new 37 to distinguish it from old 37 which runs through the town along its Main street. In other words, Highway 37 as relocated by-passes the town to the west. In returning from the farm on his way to Mitchell, Jelden left Highway 37 and drove into Tripp along old 37 from the south to see some friends who had recently had a death in their family.

After calling on his friends and visiting the funeral parlors he resumed his journey to Mitchell. He drove out of Tripp on old 37 which, after it leaves the town, runs in a northwesterly direction. About one-half mile north of Tripp it intersects U. S. Highway 18, an arterial highway, which runs east and west. At that intersection the collision in issue occurred at about 10:30 p. m. Jelden entered the intersection without stopping and ran into plaintiff's 1953 Chevrolet driven by him, in which he and his family were proceeding westerly on Highway 18. Old 37 continues on northwesterly from the intersection and junctures with new 37. By taking this route through Tripp on old 37 Jelden had to drive one mile more than he would have if he had remained on new 37.

The partnership contended that this deviation took Jelden outside the scope of his employment relieving it of liability for his actions during that period. In ruling on the partnership's motion for a directed verdict on this ground and in its instructions to the jury the trial court utilized the rule on deviations that applies when the relationship is that of principal and agent. The instruction given was 54-L, California Jury Instructions--Civil, 4th Ed. The partnership did not question the statement of the rule but urged that it should not be applied to a partnership situation because partners do not have the same degree of control of each other that a principal has of its agent.

With us the legal relationship between a partnership and the partners is that of principal and agent. It is made so by statute. SDC 49.0301(1) provides in part that: 'Every partner is an agent of the partnership for the purpose of its business'. Moreover, by SDC 49.0104(3) the law of agency is made a part of the law of partnership. Snell v. Watts, 77 S.D. 534, 95 N.W.2d 453. Accordingly the question of whether a partner by deviation has gone sufficiently beyond the scope of his employment to relieve the partnership of liability must be determined under the rules of the law of agency.

Both defendants urge that the court erred in restricting their direct examination of Jelden and their cross-examination of the plaintiff. They claim that the attempted examination of Jelden would have excused his failure to observe the stop sign by showing that his conduct under the circumstances was that of a reasonably prudent person.

Jelden's testimony was to the effect that he did not see the stop sign at the intersection until after the accident. It was located near the intersection on the south side of Highway 18 facing south and to the east of old 37 which approaches the intersection from the southeast. They suggest that because it faced south rather than southeast it was not readily visible to a motorist proceeding toward it on old 37. After the accident another stop sign was placed on the opposite side of the highway facing in a southeastely direction. They attempted and offered to introduce evidence to the effect that he had worked in the area of Tripp and was familiar with this intersection before new 37 was built. At that time old 37 was the arterial highway. This was his first occasion to go over the highway since 37 had been relocated and he was not aware of the change made in the arterial designation.

In support of their position the defendants relied on Hullander v. McIntyre, 78 S.D. 453, 104 N.W.2d 40, wherein this court followed its holding in Frager v. Tomlinson, 74 S.D. 607, 57 N.W.2d 618, that the violation of a standard of duty fixed by a safety statute is only prima facie evidence of negligence which may be overcome by a showing of due care. Whether this contention is valid we need not determine because we have recently receded from that view. In Albers v. Ottenbacher, S.D., 116 N.W.2d 529, we specifically disapproved and overruled such holding. The Albers case enumerates four categories of excusable violations of traffic regulation. These are:

'(1) anything that would make compliance with the statute impossible; (2) anything over which the driver has no control which places his car in a position violative of the statute; (3) an emergency not of the driver's own making by reason of which he fails to observe the statute; and (4) an excuse specifically provided by statute.'

Defendants' offered evidence viewed most favorably to them is, as a matter of law, insufficient to legally excuse Jelden's failure to heed the stop sign. Accordingly it was inadmissible.

On cross-examination of the plaintiff, defendants attempted to show that he knew of the change made in the stop signs at the intersection and also knew that on occasions vehicles did go through stop signs resulting in accidents. They claimed that they should have been permitted to show this because the jury could find that with such knowledge, the plaintiff should have realized that there was greater danger of the stop signs being ignored at this intersection than in the ordinary situation. Such circumstances, they argue, required of him a higher degree of care than would normally by the case.

A motorist on a through highway has a right to assume that cross traffic will come to a stop before entering or crossing such highway. Nevertheless, the favored traveler is required to make timely observation of the cross road for oncoming traffic. However, he may rely on the assumption that the drivers of vehicles approaching an intersection so protected will heed the stop sign until he, as a reasonable man, should recognize that the situation is otherwise. Robertson v. Hennrich, 72 S.D. 37, 29 N.W.2d 329; Grosz v. Groth, 78 S.D. 379, 102 N.W.2d 834. To adopt defendants' contention would deprive the traveler on such highway of this right and tend to defeat the purpose of the Legislature in providing for arterial highways. Consequently the attempted cross-examination was improper.

In Instructions 3 and 5 the jury were advised of the rights and duties of one on a favored highway. Defendants excepted to these and proposed three of their own which were refused. We have carefully gone over all of these. The instructions given, we think, were proper and sufficient and included the substance of the rules of law set out in those requested. The principal difference between the instructions given the those requested way largely a matter of language. In characterizing the duty of...