*1 рercentage setting a determination and without factual pass upon parties the various attributable upon appeal. this questions raised troublesome dismissing third-party the district court The order of Company against Stamness by International Harvester action a hereby prejudice of motion to renewal reversed without presented after trial issues after the of all for a similar order herein. determination as directed factual Reversed and remanded. having this been a member of MacLaughlin,
Mr. Justice argument submission, at the took no time in the consideration or case. decision STEINHAUS,
BARBARA J. THE TRUSTEE FOR STEINHAUS, HEIRS OF B. JAMES W. ADAMSON. ARNOLD N. W. 2d 264. September 29, 1972No.
Erickson, Zierke, Kuderer, Utermarck & Sinor and Elton A. Kuderer, appellant. for
DePcvrcq, Anderson, Hunegs Anderson, Perl & and Robert E. respondent. for J., Todd, Knutson, Peterson, Kelly,
Heard before C. by JJ. Reconsidered and decided record on the the court en banc. Knutson, Chief Justice. appeal denying
This is an from an order of the district defendant’s motion for a new trial.
The case arises out of an a collision automobile driven between by plaintiff’s by defendant, decedent and one Arnold driven W. Adamson.
County County, Township, Road No. Martin runs in Galena County an It is 36 No. 52 runs east-west direction. feet wide. Road It in a north-south direction and is 25 feet intersects about wide. angles, County right 6 at and south Road No. intersection County township Both are Road No. becomes road. roads gravel constructiоn, is not controlled and' the intersection sign. there is any type stop To the of the intersection west visibility partly dip at least obstructs in the road which approaches from the west. as an automobile driver north County proceeding Road No. 6. east on Defendant was p. m., at 6:50 the automobiles occurred about collision between daylight. which time it still was age an years trial. He is at the time of
Defendant was married, deаler, He was implement and lives in Trimont. Truman, way a customer which about his to call on near Trimont, out planned then take his wife and had miles from approaching supper. distance before He testified that some traveling per Both hour. 50 miles the intersection he and have no recollection he and his wife suffered amnesia was killed in of the collision. Plaintiff’s decedent occurrence testify to what collision, eyewitnesses could so there who actually happened. Flohrs, home employed by a farmer whose Duane
Decedent was *3 aon Decedent lived of the intersection. north and west was evening left he the fateful of the On farm south intersection. he could two routes p. 6:45 m. There were farm the Flohrs leaving the he lived. On going home where to farm use County parallel farm, a road he travel west on could Flohrs intersecting a mile parallеl to and 6, road turn an Road No. at south, enter 52, travel a mile County and then of Road No. west involved, intersection to the County travel east Road No. 6 and Alterna- go he lived. place where then turn south to and emerged enter- road he tively, turn when he could east County Road farmstead, distance ing travel short the Flohrs in this proof no direct go there is 52, then south. While No. and evening, Mr. Flohrs fateful on the he took as to which route сase east and turned likely that decedent more that it was testified turned that he than County 52 Road No. then traveled south be route would permitted to state which not Flohrs was west. neighbor- though lived route, he had even most direct apparent life. It that if decedent all his had turned west hood County and then south to Road No. he would traveled have had he east the same distance had traveled return west. question traveling no that defendant was There is east on County Road No.
Deputy Sheriff Leonard Williamson arrived at the scene of time after it He collision a short occurred. located the car of approximately County the decedent 12 to 15 feet south of Road approximately point impact, No. 6 and 172 feet east of lying right on its He side. located defendant’s on its vehicle apparent approximately point wheels feet southeast of the impact. point impact by dirt, debris, was located being impact tire marks made after the and was described as deputy to 5 feet of the center the intersection. The southwest appeared impact sheriff testified that it at the time of the right road, per- both on the cars were side but he explain mitted to how he came to that conclusion. He testified he observed no skid marks at the scеne of the accident. Olson, Richard south the intersec- lives short distance who tion, shortly that he the acci- testified arrived at scene after dent occurred. He looked for marks of vehicles involved and road, testified he observed tire marks on east-west is, County 6, lengths long Road that he 8 car No. estimated to be which were feet south of the center He road. 1% road, testified that he tire on the north-south observed marks County length Road which he estimated to one car No. be long. go appeared point He the tire to the observed that marks impact then on the corner of the intersection and southwest deputy place extend out to the where the cars were located question impact sheriff. There occurred but what be- right tween the front left front defendant’s vehicle and the *4 of decedent’s vehicle. evidence, plaintiff
At the of the directed close moved for a negligence verdict on the of the decedent. The court issue of determined as a matter of there law was no evidence that finding support jury a would decedent negligent statutory presumption sufficient rebut the of care. due withdrew the issue of He question only the of and submitted whether evidence the causal of defendant. The returned
established appeal plaintiff, a taken verdict in favor of and has bеen post-trial a of for a trial. from denial defendant’s motion new question again proper applica- and The raises the use case 602.04, provides Minn. : tion of St. which causing any damages negligently “In action to recover for person, presumed any person whose death shall be giving was, occurrence rise to action death resulted from the acts, alleged negligent act or at the time of the commission safety. shall be care The exercise due for his own presumption, shall deter- instructed the existence such in the mine the evidence whether the rebutted (Italics supplied.) action.” change only adopted in the
The in 1957. The statute was Larson, 236 53 N. W. Minn. existed under TePoel above, portion. the trial (1952), stated is the italicized As 2d which opinion no evidence from court was there was Respond- negligence could be drawn. an infеrence of decedent’s says: position. here In her ent takes same brief she “* * * abundantly that time clear at [when It was verdict], as motion for directed her had under consideration produce a scintilla now, unable that defendant was it is man, reasonably prudent as a failed act that decedent evidence concerned. course, we are with which the test which is of “* * * There is no direct [*] [*] % [*] v support the defendant’s hаppened.” concerning the accident how contention applied to the equally true as difficulty the same is is that party is eyewitnesses. dead One defendant. There nothing the occurrence remember wife and his defendant *5 of the collision. The whole case on both sides rests on circumstan only tial evidence.1 The positive relating to defendant’s driving he conduct is that speed was east and that his some dis tanсe from the intersection was per miles hour. Of course, proof negligence. that of If we were to base our only proof, decision on direct there is none party. to either as Many of cases this kind must be decided on circumstantial physical speak evidence. Sometimes facts louder than words. Jury are probability verdicts often based on than rather mathe- certainty. matical areWe that jury convinced in this case the traveling could infer that south; decedent was that cars both in proper travel; their damage lanes that the location of cars, showing to the point debris and dirt impact, the and the place permitted clearly where the cars came to rest the inference that right-of-way defendant had directional and that may yield required decedent by have failed to it as he was to do It is true that the cоuld infer that defendant was also guilty negligence; comparative negligence but under our it was percentage then for the negli- to determine what gence party. was attributable each Under these circumstances we are part convinced it on that was error the trial decide as a matter free of law decedent was gence, unless statute on presumption prevails of due care though permit еven the evidence would an inference of on part presumption operates. of the one favor whose question: Namely, come
We then to crucial what effect given declaring presumption should be the statute due involving care in a case also our statute ? subject presump- So much has been written on the whether applies It has been held that the of due care well to Harrison, one Klink one who suffers from amnesia as to who dead. (3 1964). statutory 332 F. 2d While our Cir. does apply amnesia, presumption ap- not to victims of if common-law required plies, it the same affirmative evidence must be overcome required statutory presumption overcome our in the case of a as is person who is dead. evidentiary procedural is futile or
tions are nature support on one or the other. cite authorities side Authorities either can found. At outset it should be noted view be only provides that the shall instructed statute be determine existence of the shall If the evidence. one whether the is rebutted given given effect, parts be is to should statute be both weight. here. same That not done *6 question pre Ultimately into whether resolves itself proce or it is a sumption of due care itself is evidence whether prevails who in the action and dural device to determine who go since enactment must the evidence.2 Our cases forward with in judges trial who must are of little comfort statute juries in our No this as set forth statute. struct on apply. has it difficult us to less been for Refining 115, Inc. 261 Minn. In Lambach v. Co. Northwest brought recover for the death (1961), 111 N. 345 a suit W. 2d brought against with one of an individual was consolidated opinion, court per In a curiam representative of his estate. trial, apparеntly ground the verdict was a new on ordered conjecture. justices Three concurred speculation based quite impossible con- being opinion specially, that it is brought an individual a to recover the death of for solidate case sued, for representative of his estate and a case in which presumption prevails in the statute the reason that under the dece- in where for death the case to recover but the case words, presumed that it is In other representative is sued. dent’s to re- exercising sues the trustee due care when the decedent was presumed he heirs; is not of his but for the benefit cover representative exercising else sues care someone due when legerdemain legal ? uryj ever understand such can a his estate. How Lambach, concurring Mr. Chief Justice opinion in In another legislature have intended must that expressed the view Dell 2 19, Annotation, L. 3d 5 A. R. See.
394 evidentiary restore the of a nature of due care Ryan prior Metropolitan as it existed v. Co. Life Ins. 206 562, significant (1939), Minn. 289 N. 557 W. of the court it then member existed concurred with this state- Similarly, Halvorson, 394, ment. in Roeck Minn. 95 N. W. (1959), 352, 2d Minn. L. Rev. a there is statement which evidentiary would indicate that the some value. has But in the proper same case a we said that in case the court could agаinst direct a presumption. verdict even Hirt, 296, (1981), In Krafft v. 260 Minn. 110 W. 2d 14 N. we prima considered effect created facie case of by statute, compared and there the rule with Roeck Dell, concurring opinion case. Mr. Chief Justice author of the Lambach, (260 opinion wrote the court’s in Krafft and said 301, 18): Minn. 2d N. W. problem analogous
“The here is in. raised Roeck v. Halvorson, that, (2d) Minn. 95 N. W. 172. We there held though statutory even presumption of an due сare is of evi- dentiary-nature requires given and the statute it be to the jury, may, nevertheless, proper cases find that Similarly, been has rebutted as a matter rebutting prima where the evidence facie case of *7 is of such a nature that the minds reasonable men cannot dif- it, upon fer it the court incumbent to determine the issue as a matter of law.” Again, Dunham, 152, in Benson v. Minn. 286 174 N. 2dW. 687 (1970), upheld finding we the action of the trial court in that statutory the presumption of due care had a been rebutted as matter of law. position
If the of the trial court and the of re- contentions spondent tenable, statutory here presumption are and the is evi- itself, dence it is difficult to a see how court can ever find a justifying as matter of law there nois evidence recov- ery by trustee. The decedent’s that can best said be under these
395 jury can which there is evidence from circumstances is proceed negligent can then parties were that both infer negligence. We think percentage of party’s each assess should be evidence but not considered presumption be should pre- who would that determines procedural a device considered point. stop at that vail if evidence our particularly under true now This is Wisconsin gence While our from Wisconsin. We took give presumр- 602.04, effect to a it does has statute such § a number dealt with decedent and has tion of due care a 70, Weber, 60 2d 716 McCarty N. W. 265 Wis. In v. occasions. presumption of due (1953), a court construed Wisconsin The court of 602.04. prior had to enactment § like the we care one 718): 73, (265 60 N. 2d said Wis. W. the case out of in lookout went
“All of due care finding contrary came support a when the sufficient in.” 654, 210 Galder, 89 N. W. 2d
See, also, 3 2d v. Van Wis. Callahan 147, Schlichting, 112 N. W. (1958); Schliсhting 2d Wis. wrongful-death Schlichting a (1961). involve 2d did due care. ease, the effect a but does discuss Halvorson, in Roeck v. are We convinced that statements supra, Refining supra, Inc. Co. and in v. Northwest Lambach evidentiary nature intended to statute was restore All the statute did of a due care are in error. require such that there was the trial court inform rebutted.3 decide if had been and let Otherwise, have never been last statute would legislature long can enact As continue to included. as we hold statute, simply informed of the exist- such should be 82, (1952), Willey, 233, A. 2d hold 147 Maine See Greene v. ing statutory presumption under of due care in Maine does not upon change decided all law and cases must be take to the substantive presented. the evidence *8 presumption
ence of a they due care and then if told presumption find facts it place will rebut no further has Otherwise, in the case. if a case special on a submitted verdict comparative negligence jury under our law and the finds dece- percent dent was more than 50 collision, to for blame can the judgment court still order for decedent on the question, us, alone? To ask the it seems is to it. A answer construction of permit statute which would 100-percent damages trustee of decedent to recover even dece- if percent dent was more than 50 to blame would lead to such an destroy result negligence absurd comparative would our have not We dealt with the effect of since adoption comparative negligence our statute, it is evident language 602.04 that is a rebut- § one; else, nothing table there pass would be for the requires. as the statute See,
It repealed. would be much better if statute were Presumptions: McB'aine, They Are Evidеnce? 26 L. Calif. Rev. 519, applied case, As to this if the find that going yield right-of-way decedent was south and failed to guilty and also negligence, pro- find defendant causal it would percentage negligence ceed determine attributable to negligence comparative only each under our statute. other fair result would be that the court hold as a matter of there proof part is no party. on the of either We dо not go necessary think that far. We are that it convinced for the determine whether on the existed either driver or both and then to fix gence of each. 425,
In Rex Reichert v. Co. Accessories N. Wis. 279 W. (1938), the Wisconsin court dealt with a case where there evidence, (228 was no direct much as It we have here. said Wis. 651): 279 N. W. “* * * physical facts, photo- We think the disclosed *9 only presumption evidence, not overcome the graphs оther deceased, clearly ap- he did in of the show favor right- turning traffic lane nearest the proach point the in the of edge highway the and thus violated statute.” hand or the curb of Similarly, physical in this case are convinced that the facts we guilty question present jury to decedent was of do as whether negligence. granted. trial
Reversed and new
Todd, (dissenting). Justice disagree majority by the
I the reached the under with result general principles I in of facts of this am accord with the case. statute, However, opinion. I that the in this would hold stated legislature 602.04, constitu- Minn. the has no St. is invalid since judicial power prescribe tional to rules of evidence for the branch government. of Larson, in 53 N. 2d
Our decision 236 Minn. W. TePoel (1952), clearly applying followed in enunciates the rule be care; namely, presumption valid the due the is by any in evidence offered and remains the case until rebutted any the the forth defendаnt. When defendant does come with negligence, decedent’s the should com- evidence of disappear case; pletely the and since I hold the stat- from would regarding invalid, ute no instruction the should receive rule
Consequently, adoption in Min- application If the defend- nesota has no effect on rule. care, presumption of due ant offers no evidence to rebut the plaintiff rule entitled to a directed verdict is valid and should be negligence. not elevate lack Such a result does decedent’s merely evidentiary care to an status but of due regulating permits operation procedural rule the burden of a compare proof. since There no for the is any offer defendant If the does evi- has offered none. defendant negligence, disappears the rule dence as to decedent’s cаse, and, ordinary matter, tried as an is as I have above, ignored given indicated 602.04 should and the no § be regarding instructions whatsoever of due care. presumption-of-due-care operates It is obvious rule very spectrum. in a narrow If the evidence of defendant’s gence convincing, clear application there is need for the carry very light the rule. If defendant can burden of coming any forth with negligence, evidence of decedent’s the rule disappears from the case. Since the burden the defendant extremely light, great so we should exercise deal of caution in plaintiff denying application Particularly, rule. if indulge speculation regarding we must the evidence order deny plaintiff application rule, we defeat *10 general purpose act, words, in the rule —to the trial court’s protect as a shield to thosе who cannot answer. require engage
The facts in this case would in speculation any in order find evidence of decedent’s gence. physical position The the vehicles after collision dispute leading is not in nor the fact that marks back to the point quad- impact intersection establish the in the southwest right rant and that front and the of decedent’s vehicle left damaged. testimony front of However, defendant’s car regarding alleged markings prior Richard Olson road point impact completely cross-exam- was discredited on identify ination when he mark- indicated that he could these ings having by question. Therefore, been made vehicles in only speculate we proceeding can was south on decedent County Road No. 52 at time of the collision. could also We speculate proceeding County that he Road No. east right proper made a turn vehicle. and was struck defendant’s right-of- statutory Even if we assume that defendant had way, speculate speed proper we must that he had maintained so right-of-way. statutory as not have his forfeited statutory right- if Again, we assume that defendant had of-way, appears majority opinion prima this being evidentiary in order status facie rule of law is elevated strange negligence. It any seems decеdent’s to find evidence of nonevidentiary determining status of properly inferentially majority rule, has presumption-of-due-care regulation evidentiary status. highway traffic elevated require application of the case should facts court’s I the trial would sustain presumption-of-due-care rule. plaintiff issue directing on the in favor of the a verdict order negligence, sus- there is sufficient decedent’s negligence. jury’s of defendant’s tain the determination TRANSFER RUSSELL A. MINNESOTA WINGE COMPANY. RAILWAY 2d 259. 201N. W. September 29, 197 2 No.