11 N.W.2d 113 | N.D. | 1943
Bruce Dolliver died as a result of injuries received when an automobile in which he was riding collided with an automobile driven by Emil Thompson and owned by E.A. Tuftedahl. At the time of his injury Dolliver was an employee, engaged in the course of his employment under the provisions of the North Dakota Workmen's Compensation Law. His claim for compensation has been filed and allowed as provided by statute. This suit was brought by the State for the benefit of the Workmen's Compensation Fund and H.J. Dolliver as administrator of the estate of Bruce Dolliver deceased, under the provisions of § 20 of the Compensation Act. Chapter 162, Laws of N.D. 1919. Under the allegations of the complaint, plaintiff's right of action was predicated upon the alleged negligence of the defendant Thompson in driving a car which was owned by the defendant Tuftedahl and which the defendant Tuftedahl as a dealer in automobiles had allowed him to use for the purpose of "demonstrating the car to himself" as a prospective purchaser.
Each of the defendants demurred to the complaint. The trial court overruled the demurrers and both defendants have appealed. The sole question in the appeal of the defendant Tuftedahl is whether an automobile dealer is liable for damages resulting from a prospective purchaser's negligence while testing a car owned by the dealer with his consent and unaccompanied by the dealer or any of his employees.
Ownership alone is not sufficient to impose liability upon the owner of a car because of the negligence of another whom he has permitted to use the car. Posey v. Krogh,
The respondent suggests no basis, other than agency, for the application of the doctrine of respondeat superior. None is alleged in the complaint. The order of the trial court overruling the defendant Tuftedahl's demurrer is therefore reversed.
The defendant Thompson demurred upon the ground that there was a defect of parties plaintiff and that the complaint did not state facts sufficient to constitute a cause of action.
As to the first ground this defendant contends that the complaint did not set forth facts which would authorize the personal representative of the deceased to bring this action. In support of his contention he cites § 8323, Compiled Laws of 1913 which limits and classifies the persons who may maintain an action for wrongful death and provides that "if any person entitled to bring the action refuses or neglects so *61
to do for a period of thirty days after demand of the person next in order, such person may bring the same." The personal representative of the deceased is in the fourth class and, as is stated by this defendant the complaint did not allege that any demand to sue was made upon persons in a prior class. A complete answer to defendant's contention in this respect is that the personal representative of the deceased did not bring this action. This action was brought by the State of North Dakota in accordance with the provisions of § 20, chapter 162, Laws of N.D. 1919. This section is as follows: "When an injury or death for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person than the North Dakota Workmen's Compensation Fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents, may, at his or their option, either claim compensation under this Act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this Act, the North Dakota Workmen's Compensation Fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person, provided, if the Workmen's Compensation Fund shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this Act, then any such excess shall be paid to the injured employee or his dependents less the expenses and costs of action." The complaint sufficiently alleged the subrogation of the Workmen's Compensation Fund. This being the case the State and the State alone had authority to bring this action. Tandsetter v. Oscarson,
This defendant's contention upon the second ground of his demurrer is that the complaint did not allege that the deceased was survived by relatives who would be permitted by statute to maintain this action, nor that he was survived by any persons who were dependent upon him or who could reasonably expect assistance from him. The only allegation of the complaint in this respect is as follows: "That A.J. Dolliver . . . administrator . . . is the father and heir of Bruce Dolliver deceased; that the heirs have failed, refused and neglected *62 to bring this action as such heirs but join with him as such administrator for the proof of dependents of Bruce Dolliver."
This allegation indirectly but sufficiently sets forth the fact that Bruce Dolliver was survived by his father who is a person permitted by statute to maintain an action for wrongful death. ND Comp Laws 1913, § 8323.
It also sets forth the intent of the plaintiff to prove dependency and contains a general allegation of damages. Under the law of this State the father had the legal right to demand support and maintenance at the hands of the deceased in case of need. Bismarck Hospital D. Home v. Harris,
The trial court's order overruling the demurrer of the defendant Thompson is therefore affirmed.
MORRIS, Ch. J., and NUESSLE, BURR, and CHRISTIANSON, JJ., concur. *63