Welch v. Nepstad

• Decision Date: 13 March 1959
• Docket Number: No. 9727,9727
• Citation: 337 P.2d 14,135 Mont. 65
• Parties: Aaron A. WELCH, Administrator of the Estate of Frank A. Welch, deceased, Plaintiff and Appellant v. Oscar NEPSTAD and James Nepstad, Defendants and Respondents.
• Court: Montana Supreme Court

Page 14

337 P.2d 14

135 Mont. 65

Aaron A. WELCH, Administrator of the Estate of Frank A Welch, deceased, Plaintiff and Appellant v. Oscar NEPSTAD and James Nepstad, Defendants and Respondents.

No. 9727.

Supreme Court of Montana.

Submitted March 21, 1958.

Decided March 13, 1959.

Raymond F. Gray, D. A. Paddock, Missoula, for appellant.

Jardine, Stephenson, Blewett & Weaver, Great Falls, for respondents. John H. Weaver, Great Falls, argued orally.

ADAIR, Justice.

The plaintiff, Aaron A. Welch, administrator of the estate of Frank A. Welch, deceased, brought this action against the defendants, Oscar A. Nepstad and James Nepstad, to recover damages for the death of plaintiff's son, Frank A. Welch, alleged to have resulted from the negligent operation of a certain 1951 green Dodge pickup truck owned by the defendants and driven by their employee, Henry Dahlen, also called George Henry Dahlen.

The trial court granted defendants' motion for a judgment of nonsuit and dismissal of plaintiff's complaint. This is an appeal from that judgment.

The Pleadings--Complaint. The plaintiff's complaint herein was filed September 20, 1954, in the district court of Toole County, Montana. It states two separate causes of action. The first cause of action was brought under the provisions of section 93-2824, R.C.M.1947. The second cause was brought under the provisions of section 93-2810, R.C.M.1947.

In each cause of action the plaintiff separately states: That plaintiff is the duly appointed, qualified and acting administrator of the estate of Frank A. Welch, deceased; that at the times mentioned in the complaint the defendant, Oscar A. Nepstad and the defendant, James Nepstad, were engaged in the business of operating oil wells and oil leases and in farming large tracts of land situate near Kevin and Oilmont in the State of Montana as copartners; that at about two o'clock a. m. on September 20, 1953, Frank A. Welch, operating and driving a certain 1953 GMC pickup truck, was proceeding in an easterly direction on the south side of that certain oiled highway which extends easterly from Kevin, Montana, toward U. S. Highway 91; that at such time defendants' employee, Henry Dahlen, was then and there driving a certain 1951 Dodge pickup truck, the property of the defendants, but the title whereof stood in the name of the defendant, Oscar A. Nepstad; that said Henry Dahlen then and there drove said 1951 Dodge pickup truck in an easterly direction upon said oiled highway in such a negligent, reckless and careless manner that said Dodge truck collided with the 1953 GMC truck then being driven by Frank A. Welch, with such great force and violence that said GMC truck was tossed off the highway and into the waters adjacent thereto; that said Frank A. Welch was thereby thrown and hurled about and in said GMC truck and grievously brusied, wounded and battered in and about his neck, back, limbs, chest and body and rendered helpless and unable to extricate himself from the waters into which he was thrown and that by reason thereof he suffered injuries, with accompanying pain, suffering and anguish which persisted until, and in consequence whereof, said Frank A. Welch drowned in said waters and died in said GMC truck.

In each cause of action plaintiff further states: That the defendants, with full knowledge that their employee, Henry Dahlen, had been drinking and that he was intoxicated, entrusted their said 1951 Dodge pickup truck to him; that defendants knew or in the exercise of due diligence, they should have known, that said Dahlen was too intoxicated to be entrusted with said vehicle and that defendants should have known that Dahlen would be likely to injure other persons driving upon said highway; that the defendants were then and there acting by and through Dahlen who then and there was acting in the course and scope of his employment and agency for the defendants; that said Dahlen did then and there drive and operate defendants' said Dodge pickup truck in a negligent, reckless and careless manner in that: (a) He failed to keep a proper or any lookout for other vehicles traveling upon said highway and particularly for said GMC truck so operated and driven by said Frank A. Welch; (b) he was at the time under the influence of intoxicating liquor; (c) he then and there drove said motor vehicle at a rate of speed much in excess of what was reasonable and proper considering the surface, grade, condition of travel and all the conditions and circumstances existing at the point of operation, to-wit, at the speed of approximately 70 miles per hour; (d) he operated said Dodge truck without having same under control as he approached the GMC truck then being driven by Frank A. Welch; (e) he failed to slow down the said Dodge truck; (f) he failed to apply the brakes on the said motor vehicle; (g) he failed to turn said Dodge truck to the left and away from the GMC truck; (h) he failed to pass upon the left hand side of said GMC truck; (i) he failed to avoid colliding with the GMC truck; and (j) he recklessly and carelessly drove and operated said Dodge pickup truck into and against the said GMC truck, then being driven by said Frank A. Welch, with great force and violence.

Each cause of action further states: That the negligent acts of the defendants in permitting said Henry Dahlen to drive said Dodge truck while under the influence of intoxicating liquor and the above-enumerated negligent acts and omissions of defendants' said servant, agent and employee, Dahlen, proximately caused the aforesaid collision and the resulting death of Frank A. Welch.

The first cause of action further states: That at the time of the collision and killing, Frank A. Welch was a strong, healthy, able-bodied man of the age of 26 years; that he was steadily employed and earning $200 per month; that he was a resident of Toole County, Montana; that by order of the district court for the county made October 23, 1953, the plaintiff, Aaron A. Welch, was duly appointed administrator of the estate of said Frank A. Welch, deceased; that plaintiff duly qualified as such administrator; that letters of administration were duly issued to him; that such letters have not been revoked but are now in full force and effect; and that by reason of the above-enumerated negligent acts of the defendants said Frank A. Welch sustained damage and loss in the sum of $65,000.

The second cause of action further states: That at the time he was killed Frank A. Welch was a single man of the age of 26 years; that he died intestate with a life expectancy of approximately forty-two years; that he left surviving him as his heirs at law his father, Aaron A. Welch, and his mother, Ruth Welch; that the decedent Frank A. Welch, was an employed oil field worker and laborer, earning $200 per month; that by reason of his untimely death decedent's heirs at law, namely, his father and mother, have been deprived of nurture, support and maintenance as well as the comfort, protection, society and companionship of their said son to their damage in the sum of $35,000, and that in addition thereto decedent's said parents were required to incur funeral expenses in the further sum of $560, no part or portion of which said sums have been paid by the defendants herein; and that by order of the district court for Toole County, duly made on October 23, 1953, the decedent's father Aaron A. Welch, was duly appointed and that he continues to be the duly appointed, qualified and acting administrator of his said son's estate.

Motion to Strike. The defendants interposed a motion to strike certain designated portions of the foregoing complaint which motion was denied.

Demurrers. Next defendants interposed general and special demurrers to the complaint and to each cause of action pleaded therein, which demurrers were overruled.

Answer. Thereafter, on April 13, 1955, defendants filed their answer to plaintiff's complaint wherein defendants denied every allegation in the complaint except as are specifically admitted in paragraph designated II of their answer, which paragraph reads as follows:

'II. Defendants, and each of them, admit that they were and now are copartners in the operation of an oil lease near Kevin, Montana; that U. S. Highway No. 91 extends in a northerly and southerly direction from Sunburst; that a certain public highway extends from Kevin in an easterly direction, where it intersects U. S. Highway No. 91; that on or about September 20th, 1953, Frank A. Welch was operating a 1953 GMC pickup truck in a general easterly direction; that said vehicle was involved in an accident with a 1951 Dodge pickup truck owned by defendant Oscar Nepstad and being driven by Henry Dahlen; and that said Frank A. Welch was killed, but defendants, and each of them, specifically deny that said Henry Dahlen was at the time an employee or agent of either or both of them, and defendants, and each of them, further specifically deny that they, or either of them, were in any way negligent.'

Reply. On April 25, 1955, the plaintiff filed his reply wherein he denied 'each and every allegation of new material' contained in defendants' answer.

Issues being joined, the cause came on regularly for trial before the Honorable R. M. Hattersley, district judge presiding, and a jury.

On the morning of February 16, 1956, being the opening day of the trial, defendants' counsel served, upon plaintiff's counsel, a copy of a proposed amended answer to plaintiff's complaint setting up for the first time and as an affirmative defense alleged contributory negligence on the part of the decedent, Frank A. Welch, which amended answer the trial court permitted defendants to file over the most strenuous objections of plaintiff's counsel.

Motion for nonsuit. At the trial, the plaintiff introduced the testimony of fifteen witnesses and then rested. Thereupon the defendants interposed an elaborate written motion for a judgment of nonsuit and for...