Kunze v. Stang

import similar be set aside. Of Lee Lee, 124 (1940). 292 N.W. KUNZE, Respondent, Roberta Plaintiff and simple,

that a deed in fee case prior given by a mother months about seven Larry STANG, D. Administrator of the Es children, eight her to her death to two of Stang, tate of Leon Leon L. also known as ca- upheld. held that the The court Stang, Stang, and the of Leon also Estate capacity at pacity a deed is the to execute Stang, known and as Leon L. Defendant made and mere the time the deed is Appellant, property to a parent deeds fact and not, itself, presump- child raise a does Gruebele, W. Jake Administrator the Es tion of undue influence. Gruebele, Brenda tate of Defend Respondent. ant and had her attor- Young In this case Mrs. attorney. Mrs. ney and Mr. had Smith KUNZE, Respondent, Marlin Plaintiff and attorney her on consulted with Young ques- deed least two occasions before Larry STANG, con- D. the Es not deed does tion was executed. The Administrator Stang, Leon L. tate of Leon also known as a life es- simple reserves vey but title fee Stang, Stang, also the Estate of Leon and mother, It was Young. tate Mrs. Stang, known L. and as Leon Defendant Henry Youngs returned until Appellant, conferences and had several their vacation and made grantor with the that a demand Gruebele, Es Jake W. Administrator Subsequent the ex- reconveyance. for a Gruebele, Defend tate deed, delivery Mrs. ecution Respondent. ant and whereby she Young changed also her will Civ. Nos. 8682. property to willed all her Jameses son, her Youngs, leaving out Supreme Dakota. Court North long- attorney Her was one Mr. Smith. Sept. 2, 1971. him fre- standing. had consulted with She He quently affairs. about her business Rehearings Denied 26 and Oct. witnessed drew the deed. He 1971. Nov. had notary public, acknowledged it. He also do not concede recorded. We a confiden-

record in this case establishes Young, the relationship

tial between Mrs. Smith,

grantor, grantee. and Mr. length.

appears they dealt at arm’s determined, we have

Nevertheless us,

basis of the record before .if relationship did

confidential exist Mr. Smith necessary

has carried the to show burden voluntarily freely

that the deed was delivered; Young

made and Mrs. doing

knew what she was when she execut- deed;

ed the and that fraud or undue

influence existed warrant cancella- its

tion. rehearing is denied. petition ERICKSTAD,

STRUTZ, J., and C. KNUDSON,

PAULSON, concur. JJ.,

PAULSON, (on reassignment). Judge Kunze, the husband of Roberta Marlin Kunze, against Larry an action commenced Stang], administra- Stang D. [hereinafter Stang, tor of estate Leon Jake Gruebele, the estate administrator of W. Gruebele, damages for to recover auto- personal injuries from an resulting wife, Kunze, mobile Roberta accident. against separate also action commenced a Gruebele, Larry D. W. Jake administrators, dam- respective to recover ages injuries sustained the personal for Each the same automobile of accident. answer, separate filed above defendants they gross- denying negligent or were alleging that the ly negligent further any, injuries, the if sustained accident and Kunze, Roberta were Marlin Kunze and negligence; of to their own that each due injury; and the assumed the risk of Kunzes their contributed to arose the injuries. these actions Since facts, set same accident and same of pursuant trial cases combined for were parties. After consent rested, of Kunzes each defendants of actions and for a dismissal moved of defend- of the trial each at the close for for a directed verdict and ants moved actions, which motions a dismissal Kunzes, and which resisted by the trial court. denied motions were were submitted to the These cases were returned favor and verdicts $37,000 and in the sum of Marlin Kunze $24,- in the sum favor Roberta Kunze Mackoff, Kloster, Kellogg, Kirby & $22,605.52) (which later reduced Dickinson, appellant for defendant and Larry Stang, as administrator against D. Larry Stang, D. Administrator of the Es- Stang, of Leon of the estate W. Jake Stang, tate of Leon known L. also as Leon Gruebele, of the estate of as administrator Stang, Stang, Estate of Leon also Brenda Gruebele. Stang.

known as Leon L. Larry Stang, D. as administrator Greenwood, Swanson, Moench, Murtha & Gruebele, Stang, estate of Leon and W. Jake Dickinson, plaintiffs respondents administrator of estate of Brenda as Roberta and Marlin Kunze Kunze. Gruebele, separate then made motions notwithstanding for judgment each case LaGrave, Mandan, Maurice for defend- the alternative new the verdict Gruebele, respondent ant and Ad- W. Jake judgment motions for notwith- trial. The ministrator of the Estate Brenda Grue- standing the verdict or in the alternative bele. Stang’s ve- Larry operation bele D. assumed trial were denied. new ap- hicle, negotiated gradual curve administrator, perfected she Stang, has as en- As car right highway. in the judgments and orders peals from the curve, dismissal, Kunze tered Marlin noted motions the motions for denying per speedometer registered 85 miles verdict, judgment and for for a directed requested hour Brenda slow down or in and he notwithstanding the verdict the alter- appeal hamburgers— to live to eat the separate A he wanted for a new native trial. However, trip, for the name- the reason referring cases. in each of the was filed this, ly, hamburgers. purchase in the To Leon were combined since these cases court, Stang replied capable car was appealed and have been trial traveling speeds up per to miles record, they in one hour. will be considered same There was opinion. reduced, and no further vehicle Gruebele, administrator W. Jake protest made. Gruebele, the estate of curve, past Approximately feet joint judgment appealed, though a even gradually veered off the sur- Chevrolet against each the cases was entered portion entering faced of the road Gruebele, Stang and W. Larry D. Jake ditch, right traveled distance of 560

as administrators. striking approach feet in the ditch before in this are that Marlin The case facts The culvert. car’s momentum was such Kunze, wife, his met Kunze and Roberta that it the approach, crossed after at and Brenda a lake Stang Leon Gruebele ap- on came to rest the other side of the Dakota, during Regent, located near North proach. Stang Brenda Gruebele and Leon Kunzes, 4, July 1967. The the afternoon of instantly were killed and the Kunzes were met Stang, and Brenda Leon Gruebele severely injured. both again evening at a tavern located that Larry Stang, administrator, urges D. parties to this Regent. It is conceded all is insufficient evidence to sustain liquor not a factor nor action that was and, addition, has assigned verdicts issue in case. These four individuals this during errors of law which occurred ten Regent approximately left the at bar grounds trial of the actions as the re- for 4, 1967, evening July of o’clock on the versal judgments of the orders. purchase purpose to Mott to driving of food, namely, hamburgers. Leon some car,

Stang driving a Chevrolet The first issue confront us was automobile, Re- group the time the left is insufficient to sus at whether evidence leaving Regent, Leon tain gent. Shortly after verdicts. contends that the permitted Brenda Stang stopped his car and evidence was insufficient as matter of law support the jury to drive it. The accident from verdicts of that Gruebele ap- grossly negligent. which these lawsuits arose occurred was past gross proximately point question negligence ordinarily miles where The of two place, question is a exchange jury took of fact for the and be drivers 21, is a Highway only North No. which comes a of law for court Dakota highway, having a that traveled where the evidence is such hard-surfaced reasonable approximately mat feet wide and ad- minds can draw one there but conclusion slopes. Thornburg Perleberg, jacent gradual The ditches from. 158N.W.2d Werre, point (N.D.1968); at the the accident scene Grenz highway 129N.W. 1964). level; perused 2d dry; (N.D. was the weather was clear and We say and there were no vehicles in the record and cannot that other reasonable vicinity car’s lights at The minds could draw but one there time. conclusion though burning, presented even it was not com- from. The evidence was Shortly pletely jury operated the Stang dark. after Brenda that vehicle Grue- where, case, ticularly as in this traveling speed death at a Brenda Gruebele injuries prior serious occurred. just the acci- per hour of miles ex- held that this court has dent. While jurisdictions A number of have held that itself does constitute speed not cessive upon a driver slow failure down Striebel, 133 gross negligence [Holcomb protest from a guest is factor to consider it is well estab- (N.D.1965)], determining whether a action driver’s may serve as lished that excessive purview guest comes within the negligence when finding gross basis for statute. rationale that the neces- 5 Blashfield Au- present. other factors part sary knowledge on the of a driver that this (1966). Ed. 213.22 to Law 3rd § injury probably serious to a present. factors were other case there frequently result based warnings conclusively establish does part and remonstrations on the a guest. but the evi- time the accident exact 769, adopt A.L.R.3d rea- 787. We this oc- reveal accident dence does soning to the extent this view evening during July the late curred previous court, holdings contradicts this dark, when, if it was not at a time holdings such are overruled. Ander- See 39-09-02 of least dusk. Since § Anderson, son v. 285 N.W. provides that Century North Dakota Code bar, In the case at jury heard speed limit 65-mile-per-hour the maximum evidence as to Marlin Kunze’s statement permitted vehicles is passenger to Brenda Gruebele to “slow down” and sunset, recognize this court until will protest another factor dangerous driving at dusk is more than to consider. daylight driving and will allow the time factor, day to be considered as addi- Additional factors which the con speed, tion to excessive in determin- important siders concern physical cir ing whether is involved. cumstances just case—the fact that point the before where the accident oc that speed Sheriff Kramer testified the curred, the road gradual makes a curve to Highway limit on 21 where ac- No. the the right; together with the fact that the per cident occurred was 65 miles hour dur- car traveled off the road and traversed a ing daytime the per and 55 miles hour at distance 560 feet the ditch without night passenger for vehicles. Since any attempt being made to turn to avoid conflicting evidence is to the time exact striking approach. sequence This accident, it proper be would events reveals to the court other factors jury to determine the 55-mile-per- whether jury which “the could have found” [Gleson speed hour limit was in If effect. the 55- Thompson, v. 780, (N.D. 154 N.W.2d mile-per-hour speed limit was in effect 1967), syllabus] 5 of in addition to that ¶[ speed car exceeding was limit at speed of excessive in determining whether per least miles hour. authorities gross negligence. there was these From recognize speed that palpably which is physical facts the jury “could have well may of gross neg- excessive itself constitute believed, inferred and found” [Grenz ligence probable where it is that death Werre, (N.D.1964)] N.W.2d injury will result. Blashfield Auto Law that willfully Brenda Gruebele and de 3rd (1966, Ed. 213.22 1971 P.P.). This § liberately directed her attention elsewhere court recognize speed will that which driving, her than to since cars are not palpably excessive is a factor to consider normally an driven at rate of excessive in determining whether gross neg- there was speed portion high off the traveled aof ligence. jury justified in would be way pre and into a ditch. This considering as palpably speed excessive a viously operator held that an of a where per 30 miles limit, hour par- driving over high motor vehicle at a rate of occurs, gross his dent deliberately turns voluntarily and [Emphasis negligence jury.” highway on than other his attention a result of traveling and as he is added.] momentary, inattention, though even And, page court stated: at gross occurs, question of accident an v. Wer all of the jury. considering Grenz jury, is for “The N.W. re, Pendergrast, photographs received supra; Sheets v. believed, Jacobsen, evidence, in- Rubbelke v. well (N.D.1960); could have 2d found, night was 268 N.W. 675 that N.D. ferred road drizzling; dark and was continued fact that the car From the wet; driving from that was Werre was attempt ditch straight down the hour, a rate of or at 60 to 65 miles it, jury “could well turn made to being reasonably safe speed greater than was (Grenz believed, and found” inferred existing road and weather con- under Werre, 687) that supra at 129 N.W.2d ; directed his voluntarily that he ditions ap- see the for Brenda to too dark highway than to the attention elsewhere it. The to turn to avoid proach in time that as a driving', which he was slopes of record indicates his inattention he proximate result of slope, ditches, the outer especially peril he position in a found himself could have and “the quite gradual hill; that he the crest of reached Thompson, supra 154 (Gleson found” brake, causing his car to stepped on his turning the car in 783) control into the north lane and skid out of would have lessened direction either car; oncoming head-on into the crash impact. The the force of the eliminated as to how the col- account Werre’s light, in this considering facts jury, unreasonable, im- lision occurred finding that Brenda justified probable physi- and inconsistent with the disregard a conscious acted with unworthy facts, cal and as such was safety passengers. of her [Emphasis belief and credence.” added.] how not discuss further The court will ap- urges that is not The dissent Grenz in- physical of the case circumstances plicable in case at since there was bar there jury. We believe fluenced that Brenda no evidence Gruebele will- preclude this court ample evidence fully deliberately directed her attention matter of law that holding as a driving. perusal her A elsewhere than to in this case. present was negligence any transcript of Grenz fails to reveal jury was allowed argued Lest be positive testimony in that case that con- speculation to decision on and base its willfully deliberately and directed driver dis- and that the court overlooked jecture Quite than road. attention elsewhere to the subject, it is existing law on the regarded contrary, witnesses in to the those Grenz law, spe- existing such to consider well posi- could have furnished this possibly who Werre, supra cifically v. the case of Grenz hap- couldn’t remember what tive 683, where, 4 paragraph in 129 N.W.2d Thus, pened. in and in the case at Grenz syllabus, this stated: of court finding physical is made from the bar circumstances of the facts and case. justi- circumstances and “Where facts Questions jury as to the role of the and of a motor ve- that driver fy inference sufficiency gross in negli of evidence high rate of proceeding at hicle gence under the North Dakota cases di- deliberately and voluntarily subject statute of a recent deci than to elsewhere rected his attention Ap sion of the Court of United States upon driving, which he was highway Downs, Circuit, peals, Eighth in v. Steel result of his inatten- proximate and as 310, (1971), which the F.2d 312 tion, though momentary, an acci- even just as be notes that it would The dissent stated, citing Paulsen Court Eighth Circuit speculate that jury to America, reasonable 21 N.D. of Modern Woodmen v. operation of the vehicle Brenda Gruebele’s 231, (1911): 243, 235, 130 N.W. or a black- of a heart attack the result “ ‘ in- question of what “Ordinarily the the record reveals A review of out. the evidence from deducible ferences years age, Brenda Gruebele jury, for the question peculiarly is accident; and good prior health is that the court instances in rare only is that she iota of evidence not one there is question determining such justified from heart disease had ever suffered said that law. If it can be as a matter of blackouts. as to may fairly men differ reasonable all to be deduced from the inferences by Stang that urged disclosed, proper it is a the circumstances should gross of Brenda Gruebele negligence ’ ” [Emphasis jury.” for the case ours.] car, imputed the owner of not be has held Stang. This court Leon And, Downs, supra F.2d at v. Steel enough is not ownership of a car mere 27, Nelson, 313, citing v. N.D. Jacobs Posey impute gross negligence. 873, (1936), it is stated: 268 N.W. (1935); Krogh, 259 N.W. 757 65 N.D. “ has never construed the ‘This court 737, 262 Foley, Erickson N.W. negligence” preclude “gross so as to cases, however, term In those injured person recovery from under an present the car at owners were not any all That de- circumstances. one time of the accident.

gree negligence may shade into anoth- rule, pre- general when the owner is er as to make it difficult to state to so sent, owner of motor vehicle acts, neglect, result of what class the ordinary charged negligence negligent person and misconduct of the only right the driver when he has the merely difficulty of belong adds to the exercise control over the driver. 8 Am.Jur. plaintiff sustaining in the case in 2d, Highway Automobiles and Traffic § proof. proof The burden of burden jurisdictions 572. have held the Some showing gross negligence rested owner-passenger under liable such condi- However, there this case. where her in injuries guests though tions even whether the acts are such question is a applicable required statute more than ordin- place category defendant ary negligence recovery. as the basis for or the guilty one This 50 A.L.R.2d 1289. ordinary guilty negligence, class one applied to be as to held that test ordin- should he submitted to matter ary negligence is had a whether owner as the must determine to which jury, opportunity right reasonable to exercise the belonged. class It is the defendant Freitag, Jasper control. 145 N.W.2d one can drawn but conclusion (N.D.1966). While this court undisputed facts the matter becomes question of previously has not ruled on the law, for, men if reasonable imputing gross negligence to an owner- may the the differ as to classification of passenger, adopt the test as set forth we defendant, question then sub- must be Jasper supra, Freitag, and hold that jury and the verdict of the mitted to jury justified imputing gross a of that is- thereon is determinative jury negligence owner-passenger to an where sue. opportunity he has a reasonable to exer- “ right cise the issue, control actions of determining this the testi- ‘In illogical driver. It would be to limit Leon plaintiff must mony most favorable to the if Stang’s ordinary negligence action to as the situation which we be taken driving, he failed to control Brenda’s since one conclusion can must whether but base ” culpable is more to fail to exert control [Emphasis be drawn.’ added.] law, tributory negligence actions as a matter of a where the driver’s over driver such A few grossly negligent than where the driv- contention is without merit. jurisdictions negligence. permitted ordinary juries have to con- er’s actions constitute jury to consider sider the fact not question then for the seat belts were The used, Stang failed his but courts ex- was whether Leon almost without ception duty driving of Brenda have refused to take such an to control issue her from the and hold as a jury so that matter of imputed contributory neg- cannot law that would be to him. We such failure is ligence. Stang say (1967, Supp. as a matter of law that Leon A.L.R.3d 1428 may duty. jury 1970). well have This court met this will adhere to relationship reasoning them- between set forth the Annotation considered the steadily 1428, older- contained in they dated and Leon was 15 A.L.R.3d and does right had the not believe that that Leon failure to use seat and determined belts acquiesced contributory neg- that he should be considered as to exercise control but driving ligence as a encouraged her to continue matter of law. Specifically, jury in the same manner. Stang urges as a matter of law interpreted statement that may have Leon’s the Kunzes assumed the risk of encouraging for 90” as “good car was driving. Brenda Gruebele’s The follow high at a rate to drive to continue Patterson, ing language from Wheat v. her duty a to control he had when 367, citing (N.D.1967), her should have admonished driving and Roque, Borstad v. La 98 N.W.2d instead. to slow down (N.D.1959), applicable, for a order that there was also be noted It should prove assumption by defendant to risk Stang that Leon the effect plaintiff: a steering after hand on the wheel had his “ applied by in the ditch. ‘As to the defense raised proceeding the car was by a car traveled the host driver in an action fact that the view entering guest passenger liability 560 feet after where distance of that, ditch, tort, may guest determined host arises in will be have interference, except possible deemed to have “assumed the for Leon’s risk” successfully brought injury arising mishap (1) from the Brenda would impact knowledge control and avoided the car under situation normally approach. dangerous beyond This court has that is with the n previously operation inherent considered of a vehicle owner-passenger’s grabbing by whether an whether caused incom- obvious steering petence of instant dangerous wheel at moment of the driver otherwise, gross negligence. vehicle, danger is evidence of condition of the such (2) appreciation have held that an jurisdictions danger Other owner-passen- it, part voluntary an action of an choice to encounter ger gross negligence (3) injury proximately is evidence caused ” ** reasoning presented. as the better adopt danger we their McLeod, Petway Ga.App. view. A review of the record fails to show (1933); Brainerd v. 171 S.E. 225 Stang introduced evidence that Stearns, 284 P. 348 155 Wash. had Kunzes ever ridden with Brenda Grue- before, fa- bele or that the Kunzes contends that the Kunzes’ driving miliar Brenda’s manner of injuries negligence contributed to their be prior day seat accident. cause failure to use Brenda record further reveals that Grue- Stang car was belts with which in which operating bele was the vehicle equipped. urged While passengers approxi- were for seat con- Kunzes Kunzes’ failure to use belts was immediately Procedure, before mately two minutes accordingly, we are of the proper for Accordingly opinion it was accident. that when two lawsuits joined are verdict, arriving its to at jury, for trial parties in one of the lawsuits period of time a short consider that such are competent testify to parties ap- to the Kunzes insufficient other lawsuit. voluntary danger and make a preciate the Although this issue is one of first im given to credence choice. Additional pression court, for this we have several the fact by reason of verdict times held person, that a not a party to a introduced evidence of the Kunzes suit, is not incompetent testify under § Brenda at which protest as 31-01-03, N.D.C.C., even though the wit driving. ness spouse is a or a close relative of one of parties. Hruby Romanick, v. 128 N.W. is that Stang’s next contention 2d 106 (N.D.1964); Immele, O’Connor v. testimony the Kunzes as to the 346, 77 N.D. 43 N.W.2d 649 (1950); Perry dealings Leon conversations Erdelt, 741, 59 N.D. 231 N.W. 888 have should Stang and (1930); Taylor, Frink v. 59 N.D. 31-01-03, N.D. been excluded because § N.W. 459 (1930); Hampden Implement Co. C.C., man’s the so-called dead statute. Dougherty, 58 N.D. N.W. pertinent provisions statute of that (1929); Krapp Krapp, read: N.W. 950 (1921). or Competency party “31-01-03. It would be anomalous not to allow corporate party officers of as to trans- Marlin testify Kunze to for Roberta Kunze actions or with decedent— conversations action, versa, her and vice merely be Exceptions. any pro- action or civil —In cause their joined. actions were While ceeding by against executors, admin- may be difficult to determine whether istrators, law, heirs at or next of kin Marlin is testifying on his own behalf or judgment may rendered or be wife, for his pursuing fact that he is them, against ordered entered suit for himself should not affect com party, provided except neither in sec- petence as a witness for his wife. The 31-01-05, tion 31-01-04 section shall statute specifically operation limits its testify against allowed other parties Allowing to the action. the Kunzes any as to transaction with or whatever testify for each other would follow the intestate, statement the testator policy of this should the statute testify by the unless called to thereto ” * * * beyond not be extended its letter opposite party. effect would be to add those who N.D.C.C., 31-01-05, Sections 31-01-04 and incompetent testify. Im O’Connor v. applica- referred to in 31-01-03 are not § mele, supra 43 at 653. ble in the instant case. testimony by the Kunzes Since the sequence contends that the entire identical, portion that a was not it is true leading up of events to the accident awas testimony trial given at the consolidated meaning “transaction” within the each have been excluded necessary statute. do not deem it to de- We not feel separately. We do trials if heard termine the or not this whether have been which would was a “transaction” since consider that we trials would have separate excluded purview this action does not fall within the any the cases. the outcome of changed reasoning of the statute. The basis for our event, to a consolidation Stang agreed separate is that ac- involved two case complain about and cannot now tions, which, the cases parties, consent of happened if the cases were could joined by court, what the trial to Rule pursuant separately. tried 42(a) of the North of Civil Dakota Rules Crary, 1966); 142 N.W.2d are Hook v. litigants in cases rights The which Werre, supra. explained (N.D.1966); Grenz for trial are best consolidated Supreme Court the Minnesota the words of complains of language Stang Carroll, Minn. in the case of Simon v. part of the concerning agency was a 211, 62 N.W.2d judge The trial additional oral instruction. must charged jury also that the owner ques- involving actions a common “When opportunity to exercise “a reasonable for tion of law or fact are consolidated car his the manner which control over purpose conducting joint the sole in order for the driver’s being driven” merger of the was no trial [citation omitted] imputed to him. We gross negligence to be results, retains its actions and each action charge to increase, opinion that the entire identity dimin- separate and no whole, prej- ution, jury, as a viewed change in the fundamental it judge made Stang. The trial litigants udicial to rights respective or status of the liable Stang could not be clear that Leon occurs virtue of such consolidation opportunity had a reasonable unless he joint trial.” in which Brenda the manner control Meyer, 135 N.W.2d Larson This was a cor- drove the car. (N.D.1965), right this court discussed the reference of the law with rect statement to consider the of sur- jury imputing and further indicated that viving witnesses opin- are of owner-passenger, and we jury could choose to disbelievesuch wit- instruction the oral part that that ion admitted, testimony is nesses. Once jury. mislead concerning agency did not jury is the function of the to believe for the error argues that it was Stang living In the disbelieve witnesses. a di- motions for trial court to deny bar, jury apparently case at determined dis- his motions rected verdict favor, in the Kunzes’ as it all at the close complaints missal of the in their brought a verdict favor. of the evidence. Stang assign seeks to as error 50(a), part of Rule applicable given the additional verbal instructions N.D.R.Civ.P., to motions pertaining to the effect that if the owner jury as follows: directed reads verdicts pas vehicle remained in the vehicle as senger “RULE operated and the thereof driver consent, permission same such with his A DIRECTED FOR “MOTION owner, then agent driver became VERDICT making the liable for thus owner wrongful agent. tortious or act of the At “(a) made—Effect. When there claims this is error since may any party of all close of the evidence agency prove evidence offered to in his court direct a verdict move the also claims that this was incorrect state upon or more claims favor one ment agency. of the law of If the ad- parties. against one or more thereto, objects party verse held, repeatedly This court when of all jury the issues shall submit to the erroneous, excepted instruction re- has been as to claims excepted the instruction to must be as to such all issues and ceived considered in connection with the re ” denied. shall be claims the motion charge charge mainder of the jury, correctly a whole shows advises court record Since error, a directed any, thereby if Leake v. the motions for cured. Kunzes resisted verdict, mandatory trial Hagert, 1970); (N.D. Nielsen, jury. cases to (N.D. Willert v. 146 N.W.2d court submit the

537 dismissal, fact for As this court to motions for and that was not previously considering has entitled to judgment held that when aas matter of law ruling required is validity on such a of a motion to sustain a motion for judgment in the notwithstanding court must evidence consider the verdict. light party against most favorable The final issue claimed as error Thompson whom the motion made. is the failure of the trial court grant to Nettum, v. 163 91 (N.D.1968). N.W.2d a new trial in each case. Such a motion is Viewing light, this evidence we addressed to the sound discretion of the say deny cannot error to trial court and this court will only interfere motions to in the case at dismiss bar. when a manifest abuse shown. Brink

man v. Mutual of Omaha Insurance Com pany, point supra; out that appropriate to Linington v. McLean Coun ty, supra; for ver- concerning Rules motions directed Christensen v. Farmers State changed Bank of Richardton, dismissal dicts and for supra. motions the North the latest to amendments evidence, Having agree reviewed the we became Dakota Rules of Civil Procedure with the trial court find no abuse of August 50(a) Rule effective 1971. discretion the trial court’s refusal to by deleting requirement changed been grant new trials. verdict be denied a motion directed opinion, For the in the reasons stated 41(b) if opposing party resists. Rule judgments are affirmed and decisions to court cases a has been amended to limit of the trial court are affirmed. motion dismiss failure to show a right 50(a) should to relief. Rule motions KNUDSON, JJ., ERICKSTAD and con- only jury, be made when trial cur. for failure a Rule dismiss 41(b) motion to right should be made show to relief TEIGEN, Judge (dissenting). only trial. Neither when there is a court I dissent. automatically be denied the motions will .of party resists. merely opposing an because A guest does not control the automobile riding, which he is hence the failure of comply request host driver to with a as error the failure Stang asserts guest speed the host slacken the grant his motions of the trial court to does not show willfulness wantonness notwithstanding judgment On verdict. part driver, on the any of the nor is it motions, must be con such the evidence proof, in itself, negligence. protest A light sidered in the favorable most guest may of a be dictated nervous ren party in the verdict was whose favor frailty a human guest, condition of the Mutual of Omaha dered. Brinkman v. interfere, of desire to even from an un- (N.D. 657 Company, Insurance 187 N.W.2d assumption authority. conscious This Forks, City 1971); of Grand Haugen v. Anderson, court so said in Anderson v. ; v. Christensen (N.D.1971) 68 N.W.2d (1939), N.W. Richardton, Farmers State Bank principle decision rendered established a Fre (N.D.1968); N.W.2d 352 v. Johnson of law that has continued be the law of lich, Lining (N.D.1967); 153 N.W.2d 775 this state Paragraph until this date. num- County, 146 ton McLean v. syllabus ber 1 in that case states: Risovi, 141 N.W. (N.D.1966); Mikkelson Meyer, (N.D.1966); 2d 150 Larson “Failure of a driver automobile Chicago, M. (N.D.1965); protest by N.W.2d 145 slacken because Liners, Fuel is no St. P. P. & R. Co. v. Johnston’s driver, Inc., part wantonness Viewed on the (N.D.1963). N.W.2d 140 brought by guest, an action light, that the evidence we conclude solely alleged gross negli- based on the present sufficient Thompson, driver, (N.D.1968); gence of the driver Gleson was en- (N.D.1967). to an to this titled instruction effect.” N.W.2d 780 without It is when the evidence is in Anderson decision Subsequent to the reason- and is such that material conflict refused, on several Legislature has the able the same conclusion men must draw repeal occasions, to bills which would adopt question one becomes The guest therefrom modify North Dakota’s law. or Kettwig, 68 of law for the court. Moe v. in the 1971 session attempt was made last (N.D.1955). N.W.2d 853 of Legislature by the introduction the of the passed Bill This Bill 2225. Senate No. In these cases the record establishes that by the indefinitely postponed but was Senate there in is conflict The the evidence. the in contained The annotation House. only eyewitnesses the to the accident were Code, Century a set of which North Dakota occupants of the of them automobile. Two of possession each member in the of is plaintiffs are dead. The other two are the of the Legislature, carries annotation our in plaintiffs, these two cases. Mr. These Anderson, supra, as follows: Anderson v. Kunze, permitted testify and Mrs. to were conversations, as to events and de- over speed slacken be- of to “Failure a driver fense objections claimed as error on these no evi- by guest a protest of a cause appeals. majority held that this on wantonness dence admissible, on thin thread evidence is the part the the driver.” that parties the commenced actions separate assume, Certainly cir- we under the cannot against the defendants which were consoli- cumstances, legislators that our purposes dated for the tried trial and holding this aware of the Anderson on party as one action. Thus each testified This the law of point. holding has been during but the trial and the testi- once thirty years, during this state for over mony as behalf of each was on his own by time it considered our which has been party corroborating a a witness as well as as As late Legislature at several sessions. for the other. The involved actions very year again this considered and question common of law and fact. liability respect policy adopted with liability issue was identi- on the re- injury of a death parties, in in their cal Both each case. now, only by Legislature, affirmed action, trans- respective relied on the same later, by ma- months is reversed six action the burden and statements to sustain that agree this I cannot jority of court. proof in each had recover for this proper this of action course parties relied tort action. Both reversing prin- to take. Without recovery claimed tort to seek same clearly forth in Ander- ciple law set so injuries. of the respective their Each son, these two entered in judgments action, parties, through respective their actions cannot affirmed. the state- testified as to the transaction and my opin- ments In rule is well-established made deceased. It is true that the ion, 31-01-03, N.D.C.C., proxi was viola- questions negligence and Section per- party for the ted in as each of fact these cases questions mate cause are against testify unless mitted in own action personal injury action jury in defendants, repre- legal men the who were the that reasonable the evidence is such therefrom, deceased, alleged tort can draw but one conclusion sentatives ques questions in which event such become my opinion feasors. to have respect In tions of law for the court. directly in allowed this flies agree this statement I with citations face of statute. feel confident I opinion. majority in fine contained did not understand addition, I thereof in support pointed majority cite in distinction out Willard Owens, (N.D.1969); opinion parties that “the in N.W.2d one Johnson, (N.D. competent Koland v. N.W.2d testify lawsuits are Feist, 1968); parties and, Glatt v. in the other lawsuit” fact, doing they were so testified Kunzes acknowledge that this court has as transaction and statements. Fur- held that keep proper failure to lookout ther, wording the intent the clear not, themselves, excessive do statutes, my opinion, have been gross negligence. constitute They argue abrogated people in situations where two position qualified must be injured single result of a transac- has been done some jurisdictions. other tion bring separate against lawsuits They have cited support of their argu- legal representatives alleged tort ments the annotation contained 6 A.L.R. feasors. 3d emphasis Section [c] previously, As I stated there is no con- They 787. have succeeded in convinc- flict considering all ing majority of the soundness of their evidence, of the including testimony by argument. majority The state: each of parties to the transaction and adopt reasoning this to the “We statements, sufficient, still not as a pre- this view contradicts extent law, matter sustain verdicts. court, of this such hold- holdings vious The whole record establishes the ac- Anderson v. ings are See overruled. cident day. occurred on a clear high- The Anderson, N.W. N.D. way dry good driving and in condi- (1939).” tion. The good automobile was in mechani- background view of the historical Gruebele, cal although condition. Brenda state, dissent, this forth this set earlier in operating high speed, the automobile at a I majority feel that far, gone have too proper drove on the of the high- side too fast. way regular and in a manner. There is explanation no in the record of the rea- The cases in support cited of the A.L.R. why highway. son the automobile left the annotation, in which warnings or remon- Pictures introduced strations guest to the excessiveness automobile, by tracks made taken at speed of the by were stressed the court as the direction the sheriff who investi- factor, upon were attendant other cir- gated and taken accident one indicating cumstances an intention to in- newspaper reporter, disclose that testi- jure disregard safety or a wanton for the mony given by Mr. and Kunze with Mrs. guest, of the actual or or constructive no- respect highway to the the leaving injury guest tice that serious to the would highway by of the the automobile was probably result because the excessiveness appears highway truthful. speed. circumstances involve Such flat and straight tragedy where the oc- intoxicated, speeding speeding while with- were curred. There The obstructions. eyes paying out with the off attention or movement of the high- automobile road, failing stop or slow down at way onto the shoulder and then into the intersections, crossings speeding on a or gradual. pro- ditch was The automobile curve, along slippery, hill grade, speeding or right ceeded for some distance with roads, rough speeding or with a bumpy wheels highway, on the shoulder of the automobile, or speeding defective rain, dust, then went gradually into the ditch. Marlin by fog, vision snow is obscured Kunze testified that movement speed or In all cases blinding lights. those which he felt that was not normal to that accompanied by warnings moving of a circumstance, automobile a hard- indicating an dangerous some highway “lunge” surfaced was a or “lurch” disregard injure intention a wanton as the automobile left the occurred or actual or guest, safety for the of the highway went the ditch. Both injury into that serious constructive notice they plaintiffs testified that did guest result because probably caused the automobile to know what with which the excessiveness no claim facts highway. leave the There was The being driven. the automobile misconduct made portion intentional wanton which this the cases on arguments comport In their rely the witnesses. do not annotation A.L.R. before with the circumstances the cases manner evincing a temperament reckless authority, us, they my opinion, nor are and an probable indifference to the con- Anderson, overruling sequences Anderson v. of her negligent act.” supra. given The alleged instructions are not be erroneous and conform to what plaintiffs their alleged that have repeatedly guest said in cases sustained a result injuries were gross negligence. issue of Holcomb They negligence of Brenda gross Gruebele. Striebel, Norgart Hoselton, v. supra; v. by a fair establishing, the burden of N.D. (1949); 39 N.W.2d 427 Anderson evidence, their preponderance of the Anderson, Anderson, Schwager supra; alleged. proximately caused as injuries were N.W. Striebel, (N.D. Holcomb v. 1965). auto negligence, negligence. is not Gross within Inadvertence statute, Hoselton, Norgart supra. is no at all mobile c^re most of the care which even omission given instructions and the thoughtless fail to seldom inattentive and law as established in this state are that the concern, evincing a reckless make own evidence, in addition to proving negligence, lack of care which temperament prove must also that Brenda drove in its The term nature. practically willful “in evincing automobile a manner a the of “gross,” applied negligence to reckless temperament and an indifference by an auto brought motorist an action probable to the consequences negli- of her mental guest, has reference to the mobile gent practically act” is and “which wilful in to the regard of motorist attitude the its nature.” fore have consequences he should which in the record con Additional evidence seen, gross recklessness implies and such that testimony of the sheriff sists consequences. to the shows indifference this highway limit where speed on the Striebel, supra; v. Holcomb v. Jacobs per sixty-five miles tragedy is occurred Nelson, 268 873 N.W. was that the car hour. Thus evidence is per hour traveling at miles eighty-five jury on The trial instructed the and, basis on the negligence question as follows: find proof speed, the could of the charge you gross negligence that “I and negligent was that Brenda Gruebele is guest statute within our automobile cause proximate negligence was the that her all, care care or the omission However, occurred. tragedy which or most inattentive which even the support verdicts findings not will these thoughtless fail to make seldom liability may pred these cases as temper- concern, evincing a own reckless upon ordinary negligence. There icated care, prac- all which ament and lack finding a that support no evidence to tically in its nature and shows wilful by the intoxi superinduced was of a consequences to the indifference and Brenda cated condition of Gruebele negligent act. law as bring within the thus these cases negligence is relative term “Gross a Roque, 98 v. La established in Borstad act or and whether or not certain any nor is there (N.D.1959); N.W.2d negli- gross omission act constitutes to voluntarily evidence that Brenda Gruebele gence upon all the facts depends else her deliberately directed attention circumstances of each case. highway upon which where than however, her bring that within Grenz you, driving she was instructs “The court Werre, keep (N.D.1964), N.W.2d driver v. mere failure 1 (N.D. do speed, Pendergrast, 106 lookout, Sheets or excessive proper negli- Jacobsen, 66 N.D. 1960), or gross Rubbelke constitute not of themselves (1936); is there negligence, nor N.W. constitute gence. To in Bolton support evidence to our decision prove that plaintiffs must Wells, in a N.D. N.W. car in drove driver of straightaway, case the (1929), in which all on its proper side speed limit exceeding the highway. automobile was Then it gradually went and, icy roads while driving into the right-hand over proceeded while ditch. the road gaze his in the engaged, crossroad, so took ditch until it struck the momentary with- passed over, at the time of which it and came to rest swerved, skid- attention the car on the opposite drawal of side. The distance from guest. upset causing injury point ded and where the automobile left the highway to crossroad, where it hit carefully the evidence examined I have according testimony sheriff, automobile and, it shows while was 560 feet. There is no conflict in high rate at a being driven but, the evidence on the basis of this evi- it continued ditch where into the and went dence, majority opined crossroad, shown it is not it struck until suggest evidence “could that Brenda Grue- caused place what took the accident how willfully deliberately bele directed her showing any made there Neither it. attention elsewhere.” attitude the mental indicate driving physical majority allude to two cir- she was while Brenda Gruebele first, fact, that before the auto- cumstances : the automobile. guests highway highway makes Kunze, mobile left the were who andMr. Mrs. second, the fact that eyewitnesses, gradual curve surviving unexplainably traveled off the car Brenda Gruebele the effect feet except as a distance of 560 respects, road and traveled in all driving properly sitting any “apparent” at- in the ditch without plaintiffs speed. they striking the tempt being made to avoid They testified seat. back They this se- the auto- conclude before crossroad. speedometer observed two- curve some gradual entered a reveals to them other quence of events mobile just before and long, mile of a tenths Brenda suggest” that which “could factors the entered the automobile at the time or deliberately directed willfully and Gruebele Kunze, testified plaintiff, Marlin the curve than to her driv- her attention elsewhere “Brenda, down, want said, I slow that he in- “it have and, secondly, that could ing want tonight, I don’t hamburger to eat the her dark for it too jury” dicated to the that she testified Kunze die.” Roberta to to in time to turn approach to see by introducing speculation her husband this statement made heard avoid it. This “Oh, hell, Stang suggesting and that that Leon answered: into the and case that, if good ninety.” plaintiff, The and may speculated this car is jury have Kunze, however, did, majority’s Marlin does not remember it has bless- it received to being Stang by Certainly this statement made Leon there is no evidence ing. and, therefore, Further, if there he was called a wit- these conclusions. sustain against separate part ness in his wife’s action of these is no claim made on the Gruebele, these defendants he could not have testi- as driver plaintiffs that car, deliberately fied to the his wife testified and direct- willfully answer which of the by elsewhere, was made Leon to his state- that it was ed her attention or Thus, in testi- ruling view of the of the dark to the crossroad. ment. too see The majority, plaintiff, Stang, mony Mrs. testi- that the exact time to the effect party in fied as a her action to a state- the accident is occurrence of by the “approaching ment made deceased which could and dusk.” known that it was in if party not have been admitted her case whether Neither remembers appears parties separately. it were tried It from remember lights were on but both that the automobile continued orderliness discussing the cleanliness and through approximately they passed at at the curve of a farmstead which speed. negotiated seeing same It suc- curve curve. also remembers Mrs. Kunze cessfully highway along highway its side of the read sign own a which proceeded that and for some to 800 feet on “Trash testified Can” and Mr. Kunze thereby injury causes or death grass to a seeing a “lot remembered he guest.” Am.Jur.2d, traveling Automobiles and car was as the around” flying Traffic, Highway Sec. 920. that claim is no There ditch. in the find, evidence any dark, there I made nor is the record these could jury cases, men, acting that which two reasonable fair- from record this see to ly impartially, dark was too and could arrive at but one that conclude is, will- conclusion, injuries crossroad, that Brenda sus- atten- plaintiffs, her deliberately and directed tained Mr. Mrs. fully and driving. Kunze, her by gross negli- than to were not caused tion elsewhere speculate gence part on the of Brenda just as reasonable Gruebele and attack, that she that, therefore, law, heart as a matter of she had nor this defendant-appellant juries in these cases was en- Neither blacked out. facts speculate judgment as to titled to for dismissal of the permitted notwithstanding the verdicts. conclusions. actions to draw light in the Considering evidence Dissent Addendum to verdicts, find I favorable most original Following release of the ma- ordinary than a case nothing more petition opinion my dissent a jority part the driver negligence on the majority rehearing has been filed. typi- disclose facts the automobile. rehearing denied petition now have ex- failure negligence, with cal case of pages and have substituted of their several reasonably prudent aof ercise the care they original opinion, pages in which have recovery no person, there can be for which alluded phrases substituted several host. against in an action dissent, however, words, my with other justification for my opinion, is, in There They change meaning. without have basis on the the verdicts of quoted length also some from Grenz v. made this case. the record Werre, supra, attempted justify have is shown negligence “When on the decision case insuffi- degree is on whether centers issue ciency They in that case. ordinary is known what they transcript state that reread proof the burden gross negligence, of the evidence in and have Grenz con- negli- who asserts upon the one finding that the driver cluded will- complained the acts show gence to fully deliberately directed his attention Nelson, degree.” are of Jacobs than to elsewhere the road must have been supra. physical inferred from facts and the assumptions Presumptions, guesses or circumstances. The difference in the two suffice; doctrine will not neither will the in the cases lies that the driver fact ipsa loquitur plaintiffs. testified, trial, res aid the car Grenz at the he did not see the car which he collided “Unlike the case in it is which just until seconds the collision before oc- necessary to negli- ordinary establish and that curred he did not know where gence, all cases agree seem to how collision There occurred. is no the doctrine loquitur of res ipsa is not comparable in this case available where it necessary, as in base inference. the case of an guest action under a statute, to show that the defendant was STRUTZ, J.,C. concurs. guilty of gross negligence, or wilful and wanton example, For misconduct. STRUTZ, Chief (dissenting). Justice it has been held that the doctrine of I concur the above dissent. The ipsa res loquitur is not to es- available have, majority opinion, repealed tablish negligence or wilful or statute, guest legislative which the misconduct, wanton required under assembly has repeatedly refused to do. statute, where the motor vehicle roadway leaves the Judgment or turns should be reversed. over and

Case Details

Case Name: Kunze v. Stang

Court Name: North Dakota Supreme Court

Date Published: Sep 2, 1971

Citation: 191 N.W.2d 526

Docket Number: Civ. 8681, 8682

Court Abbreviation: N.D.