Schan v. Howard Sober, Inc.

• Decision Date: 28 March 1974
• Docket Number: No. 8954,8954
• Citation: 216 N.W.2d 793
• Parties: Leo SCHAN, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff and Appellee, v. HOWARD SOBER, INC., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 793

216 N.W.2d 793

Leo SCHAN, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff and Appellee, v. HOWARD SOBER, INC., Defendant and Appellant.

Civ. No. 8954.

Supreme Court of North Dakota.

March 28, 1974.

Syllabus by the Court

1. On an appeal from an order denying a motion for judgment notwithstanding the verdict, the only grounds which will be considered are those which were assigned on the motion for a directed verdict.

2. When a motion for judgment notwithstanding the verdict has been denied by the trial court, the evidence must be

considered in a light most favorable to the party in whose favor the verdict was rendered and the trial court's order should not be overruled when there is an issue for the jury to determine.

3. The employer must furnish his employees with reasonably safe machinery, tools, and appliances.

4. The majority rule is that an employee who is confronted what an unforeseen situation whch constitutes an emergency, which rendered it necessary, in his employer's interest, that the employee have temporary assistance, is to be deemed to have had implied authority to procure necessary help and thus create between the employer and the emergency assistant the relationship of master and servant, which will engage responsibility on the part of the employer to the assistant for injuries chargeable to the neglect of the employer.

5. The statutory provision that 'An employer, in all cases, shall indemnify his employee for losses caused by the former's want of ordinary care', § 34--02--03, N.D.C.C., is applicable in the case of a gratuitous employee as well as an employee for reward, and in determining the employer's liability the same rule applies as in the case of master and servant.

6. A motion for new trial based on the insufficiency of the evidence is addressed dressed to the sound judicial discretion of the trial court and its decision thereon will not be disturbed on appeal unless an abuse of discretion clearly appears.

7. Under the evidence in the case, the instruction requested by the defendant on the issue of the fellow-servant doctrine was properly denied by the trial court.

8. A motion for a new trial on the ground that damages are excessive and appear to have been given under the influence of passion and prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the trial court's order on the ground unless an abuse of discretion is clearly shown.

Palda, Anderson Tossett, Palda, Thomas & Berning, Minot, for defendant and appellant.

Farhart, Rasmuson, Olson & Lian, Minot, for plaintiff and appellee.

PAULSON, Judge.

This is an appeal by the defendant-appellant, Howard Sober, Inc. (hereinafter Sober, Inc.), from an ordr of the Fifth Judicial District Court, Ward County, denying Sober, Inc.'s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. There is no appeal taken from the judgment itself.

The material facts are as follows:

Sober, Inc. is a corporation engaged in the business of transporting motor vehicles. In March of 1965, James Lewis was employed by Sober, Inc. as a driver of a vehicle transport. At that time he had had approximately eleven years' experience in driving such transports.

Shortly before March 9, 1965, Mr. Lewis left Des Moines, Iowa, to transport a load of cars to Nebraska, and then proceeded to Ellsworth Air Force Base in Rapid City, South Dakota. He was to pick up a load of F--100 Ford pickup trucks from the Boeing Aircraft Corporation at Ellsworth and transport them to Boeing's motor pool at the Grand Forks Air Force Base near Grand Forks, North Dakota. When Mr. Lewis arrived in Rapid City, to load such trucks for transport, he learned that they were four-wheel drive units. This necessitated certain modifications in his normal loading procedure, which he explained as follows:

'Q All right, you had hauled F100 Ford pickup trucks on your particular unit on other occasions prior to March 9, 1965?

'A Yes.

'Q All right, did it make a difference in those particular vehicles if they were four-wheel drive or two-wheel drive?

'A Yes, very definitely.

'Q What difference did it make?

'A Four-wheel drive vehicle is much higher than a regular two-wheel drive vehicle. The tire--size of the tires makes a difference.

'Q Now, would you just amplify or explain to me what you mean, what effect that has then?

'A Well, it makes you higher. The vehicle itself is higher. In order to get a regular half-ton F--100 Ford pick-up on, you just drive it on and put the chains on it and tighten it down some and go. With F--100 Ford pick-ups with bigger tires, four-wheel drive, you have to let some air out of the tires to get them on. To get them on where they are low enough where you can clear underpasses, bridges along the highway, railroad overpasses, tree limbs, traffic signals, all overhead objects.

'Q Now, I would like to limit my questions specifically to what, if any, adjustments are required to be made when they're placed in the lower racks?

'A You have to pull them down very tight and you have to let some of the air out of the tires. See, we have a rear deck lid that raises up on the back end of the trailer. In order to get these vehicles in--there's no difficulty getting them in; but when you let the rear deck lid down, the way it's made, in order to get the top vehicles on, you have to lower this rear deck lid down, and, you, therefore, have to have this vehicle low enough to where you can lower this deck lid down. Do you know what I mean?

'Q Where the units that you picked up in Rapid City, South Dakota, F100 Ford pickup trucks with four-wheel drive?

'A Yes.

'Q (Mr. Thorn, continuing) When hauling an F100 Ford pickup of that particular year with four-wheel drive, it is necessary that you left some of the air out of the tires to reduce its overall height while it's being transported?

'A In the bottom, yes.

'Q All right, in the bottom. I'm sorry I did not limit it to the bottom rack. And further, it is also necessary, that when one of these units with four-wheel drive is being transported, that you tighten down the chains with the ratchet or winch tighter than you normally would tighten them down?

'A Yes.'

Mr. Lewis loaded five of these F--100 pickups on the transport and hauled them to Grand Forks. When he arrived at the Boeing Motor Pool at the Grand Forks Air Force Base, Mr. Lewis reported to the dispatcher of the motor pool and requested that someone with an air compressor assist him in inflating the tires of the pickups so that they could be driven off the transport without damaging the tires. The plaintiff, Leo Schan, an automotive mechanic with Boeing, was directed by his immediate supervisor to assist Mr. Lewis.

Mr. Lewis testified as follows with respect to Mr. Schan's assistance in unloading the pickups from the transport carrier:

'Q And in what nature did he assist you as you proceeded?

'A Well, he inflated the tires where I wouldn't hurt those when I drove off. You don't drive a vehicle with a flat tire without runing the tire; and I didn't want no claim on that. And unchaining, I would say, number four vehicle; it was on the bottom rear end of the tractor.

'Q Let me back up just a minute. Which vehicles did you take off first?

'A Three top ones.

'Q Okay, and in taking those vehicles off, were they chained to the carrier?

'A Yes.

'Q And what type of mechanism was it that was used to release the chains on those vehicles?

'A What we call a winch bar; it's a long bar about thrity-inches long, round, and approximately three-quarters of an inch in diameter.

'Q Okay, this winch bar, is that the same as what's used to release the chains on each of the vehicles?

'A Yes.

'Q Is there a separate one for each of the vehicles?

'A Yes. There's a--well, there's four chains for each vehicle.

'Q Okay, is there a bar for each chain, for each vehicle?

'A No, you only carry one bar.

'Q Okay, is there a ratchet?

'A Ratchet for each corner of each vehicle.

'Q Okay, so you take this bar around and place it in each ratchet for each of the chains for each vehicle?

'A Yes.

'Q Okay. Now, so in taking off the first three vehicles, which were on top, you had to use this winch bar for at least twenty times, is that correct--no, I'm sorry, at least--

'A Twelve times.

'Q At least twelve times?

'A Yes.

'Q And in doing this, did you do this by yourself?

'A Yes.

'Q Did Mr. Schan assist you in any way when you removed the first three vehicles so far as the winch bar and the ratchets?

'A No.

'Q Concerning these first three vehicles, in which way did Mr. Schan assist you?

'A Inflated, I think, two tires, I think. It could have been more.

'Q And he was the man that had been sent out by the Boeing--

'A Yes.

'Q Office there?

'A Yes.

'Q Did he ever state to you what his occupation was?

'A (No response from the witness.)

'Q What was his position with the company?

'A I think he was the mechanic for the motor pool and Boeing Aircraft Corporation. In fact, I think he--well, Boeing had a contract updating the missiles on each one of these Air Force bases. They transported the vehicles from one base to another one--from South Dakota, North Dakota Air Force Bases, Montana, such as that, and we transported part of the vehicles. We--I should say Howard Sober, Incorporated and the drivers. And this is what I was doing.

'Q So you had transported other vehicles from missile base to missile base?

'A Yes. Tires and trucks both.

'Q Now, as you started unloading the, what you call, vehicle number four, which I--is that correct, this would be the rear vehicle on the under berth of the rig?

'A Yes, bottom.

'Q What happened when you started unloading that one?

'A Well, I got three chains off, at least two, and I was trying to get the one off on the very bottom rear right side of the trailer, which would be the left front corner of the vehicle, and it was too tight. In fact, I...