Schobinger v. Ivey, 900315

• Decision Date: 02 April 1991
• Docket Number: No. 900315,900315
• Parties: Jack SCHOBINGER, Plaintiff and Appellant, v. Roland Michael IVEY, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 728

467 N.W.2d 728

Jack SCHOBINGER, Plaintiff and Appellant, v. Roland Michael IVEY, Defendant and Appellee.

Civ. No. 900315.

Supreme Court of North Dakota.

April 2, 1991.

Morley & Morley, Ltd., Grand Forks, for plaintiff and appellant, argued by Kenneth L. Brooks, 3rd year law student; appearance by Michael J. Morley.

Paul Robert Aamodt (argued), American Family Ins., Fargo, for defendant and appellee.

GIERKE, Justice.

Jack Schobinger appeals from a district court judgment dismissing on its merits his action against Roland Michael Ivey. We affirm.

On October 31, 1988, Schobinger's vehicle, which was being operated by his stepdaughter Tara Mathis, collided with a vehicle operated by Ivey in Grand Forks. There was negligible damage to Ivey's vehicle and extensive damage to Schobinger's vehicle.

Schobinger sued Ivey for the damage to his vehicle. The trial court found each driver to be 50% negligent and imputed Tara's negligence to Schobinger under the "family purpose doctrine". Schobinger argues on appeal that the court erred by imputing to Schobinger the negligence of the driver of his vehicle.

The family purpose doctrine was first adopted in this state in the case of Ulman v. Lindeman, 44 N.D. 36, 176 N.W. 25 (1919). The decision was founded upon the theory that the driver of a family car, in pursuit of recreation or pleasure, was engaged in the owner's business. The court held that the doctrine of respondeat superior applied, because the driver was either the agent or servant of the owner. The family purpose doctrine was created in furtherance of the public policy of giving an injured party a cause of action against a financially responsible defendant. Michaelsohn v. Smith, 113 N.W.2d 571 (N.D.1962); Herman v. Magnuson, 277 N.W.2d 445, 455 (N.D.1979). This rule is firmly established in our state. The question before us is whether to go one step further and impute the driver's contributory negligence to the family vehicle owner where the owner is suing a third party for damages. This court previously considered this question in Michaelsohn, supra and in Brower v. Stolz, 121 N.W.2d 624 (N.D.1963), and held that the family purpose doctrine has no application to a case where the owner of the family vehicle seeks to recover for damages to his vehicle proximately caused by the negligence of the driver of another vehicle, even though the family member driver of the owner's vehicle was contributorily negligent. However, these cases were decided prior to the 1973 adoption of comparative negligence in North Dakota.

The comparative negligence law is embodied in Section 9-10-07, N.D.C.C., and provides in part:

"Contributory negligence does not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not...