Carlson v. Fredsall , 228 Minn. 461 ( 1949 )

I find myself in disagreement with the views of the majority in two respects: First, as to the holding that there was a question for the jury as to whether the consent by Robert Fredsall to his brother Roger was broad enough to authorize the lending of the car by Roger to a third person; second, as to the question of whether the action of Worthley, the motorman, whether negligent or not, was connected as cause with the injury to plaintiff.

On the first question, the family-car doctrine is merged in and superseded by M.S.A. 170.54 of chapter 170, known as the safety responsibility act. Jacobsen v. Dailey, 228 Minn. 201,

36 N.W.2d 711; Ellingboe v. Guerin, 228 Minn. 211,36 N.W.2d 598. The liability of Fredsall depends entirely upon the scope of his consent or permission to Roger Fredsall to use the car. As I view the record, the evidence was conclusive that the consent did not so authorize the loan of the car. I regard the record as so completely covering the transaction by all participants that there can be no reasonable expectation that further proof could be offered which would make a case for the jury. Every witness who could know anything about the scope of the consent was called, examined, and thoroughly cross-examined about the tenor of consent. Therefore, judgment in favor of Robert should be ordered.

If we are not to overrule an entire line of decisions by this court, it seems to me that these conclusions are inescapable for the following reasons: There is no evidence of any express consent. The burden of proof as to the existence of implied consent was on. plaintiff.² He failed to establish that Herseth's use of the automobile was within the scope of the consent which Robert or his wife had given to Roger.

The tenor of the conversations between Roger and Robert's wife excludes any basis for an inference that there was implied consent. The consent was originally given to Roger to use the car in order to pick up his sister at the railroad station. The conversation between Robert and Roger confined permission to use the car to Roger's own use, although nothing was said specifically to the effect that he should not lend the car to someone else. Neither was there anything said on which an implied consent to lend the car could be based. In spite of the ingenuity of counsel for plaintiff in endeavoring to get Robert, his wife, or Roger to testify that the consent permitted Roger to lend the car, their testimony was that Robert's consent went no further than to tell Roger he "could use the car." His wife, Evelyn, said, when she extended the permission, that it was "for his own pleasure." When counsel inquired if that "could include business," she answered, "He didn't mention business to me. He mentioned pleasure." The accident occurred at 12:10 the following morning while the car was being used on the business of Roger's fraternity.

It is suggested that the evidence indicating that Roger had permitted fraternity brothers to use other automobiles belonging to his family tended to show implied consent by Robert that the car could be used by others on fraternity business, but Roger's testimony by deposition relates exclusively to the use by others at the fraternity of cars which he had borrowed from his parents or from his sister. The occasion on which the injury to plaintiff occurred was the first and only occasion when Roger had borrowed Robert's car. Robert went into the navy in 1941 and married while in the service. He was in the service until November 1945, about one month prior to lending his car to Roger. He and his wife had lived at various places while he was in the navy. They had had the car with them since 1944. When the couple returned to Minneapolis, they went to live immediately in a residence apart from Robert's parents. There was not a syllable of evidence indicating that Robert knew of any occasion when Roger had lent a borrowed car. There is direct evidence to the contrary.³

Under our previous decisions, the use of other family cars by Roger in fraternity business, without knowledge by Robert of such use, could not properly be submitted to the jury as implying a consent to lend Robert's car to John Herseth. Krahmer v. Voss, 201 Minn. 272, 276 N.W. 218; Ewer v. Coppe,199 Minn. 78, 271 N.W. 101. Therefore, there should be judgment for Robert notwithstanding the verdict against him. This is a stronger case for direction of a verdict than was Kayser v. Jungbauer, 217 Minn. 140, 14 N.W.2d 337, or Krahmer v. Voss, supra, where we held, as a matter of law, that the use was not within the scope of the consent. See, also, Abbey v. Northern States Power Co. 199 Minn. 41,271 N.W. 122; Ewer v. Coppe, 199 Minn. 78, 271 N.W. 101.

In Kayser v. Jungbauer, 217 Minn. 140, 143,14 N.W.2d 337, 339, plaintiff was severely injured by a car owned by defendant Jungbauer when it was backed into plaintiff at a filling station. The trial court granted a directed verdict for owner Jungbauer, which on appeal was affirmed. This court said:

"Nor is there any evidence to support the contention that Seymour drove the car with the implied consent of Jungbauer, the owner, so as to fix liability upon the latter for the negligence of the former. Howard Jungbauer had driven the car to the Kowalska-Johnson station and turned it over to them for servicing. Howard was in the station settling his account when Seymour volunteered to move the car. Howard did not give Seymour express permission to move the car. It is true that on three other occasions such express permission was given by Howard, and Seymour did drive the car when Howard was along. But previous use of a car with express consent cannot be construed as evidence of implied consent at a subsequent time. Krahmer v. Voss, 201 Minn. 272, 276 N.W. 218. The trial court was right in directing a verdict for Jungbauer."

In Krahmer v. Voss, 201 Minn. 272, 276 N.W. 218, a recovery was sought for wrongful death. The car in which decedent was riding was owned by defendants Voss and Koch, who were partners in a garage business. It was driven by one Richter, who, plaintiff claimed, was driving with the consent of Voss and Koch. The evidence showed that Richter had permission to use the car to make a brief visit, but he was to return it before dark. He did so and then took it again in the evening when preparing to go to a dance. Plaintiff argued that because use of the car was given on one occasion with express consent there was evidence of implied consent to use it for the same or other purposes at a subsequent time. This court held to the contrary (201 Minn. 275, 276 N.W. 219):

"* * * it cannot be implied from the fact that Richter had defendants' consent to use the car during the day for the specific purpose of taking his parents on a visit that he thereby had consent to use the car for the entirely unrelated purpose to which it was put on the evening in question. The authority to use it for the one purpose was not authority to use it for the other. See Abbey v. Northern States Power Co.199 Minn. 41, 271 N.W. 122. So even if it were conceded that at the time the accident occurred it was not so dark that the car was being driven at a forbidden time, or outside the time limits prescribed by the defendants, it was being used for a purpose to which they had in no way consented."

The facts of the present case show an even more remote relationship in time, source of consent, and purpose of use than the facts of the preceding cases. In Abbey v. Northern States Power Co. 199 Minn. 41, 271 N.W. 122, plaintiff was injured by being thrown from a truck belonging to defendant, Northern States Power Company, when it was driven by one. Mott. Mott was a part-time employe of defendant assigned to a specific wire-moving job which had been completed by the end of the morning. After lunch, the truck, which was in the possession of another employe, was left standing in front of the job. Mott drove it to get some equipment as a favor for a contractor in the house-moving operation. Plaintiff, an employe of the contractor, was injured when thrown from the back of the truck. The question was whether, under the Minnesota financial responsibility act, the implied consent to use the truck during working hours could be extended to the use of the truck for the convenience of another and after completion of his job. On appeal this court said (199 Minn. 43, 271 N.W. 123):

"* * * The evidence does not justify an inference of implied consent to use the car for any personal purpose of Mott's.Nor does it justify an implied consent for Mott to use it inconnection with any other person's business. Had Mott taken the car to go on a fishing expedition of his own it is quite obvious that it would not be within the consent implied from the circumstances presented by this record. It also seems to us that it is just as obviousthat he had no right or implied consent to use the truck in thefurtherance of any other person's business. For instance, had Mott taken the car and gone to some other town to get Henke's equipment, it would seem quite obvious that it was far beyond any proper inference of implied consent." (Italics supplied.)

Thus, in the present case, as a matter of law, the use by a third person in the business of yet other persons was beyond any proper inference of implied consent. As in the Abbey case, the implied consent or permission here is coextensive with the time and nature of Roger's permission from Robert or his wife, and no further.

In Ewer v. Coppe, 199 Minn. 78, 271 N.W. 101, the court in reversing an order denying a new trial held that evidence did not sustain verdicts that the car which caused injury to plaintiffs was being driven with the express or implied consent of the owners. Previous use of the car by the employe was with express consent of the owner and could not be construed as evidence of previous implied consent.

I am, therefore, in disagreement with that part of the majority opinion which would send the case back for a new trial as to defendant Robert A. Fredsall on the theory that more evidence might be produced on the question of implied consent. There seems no possibility that at another trial stronger evidence could be produced on that issue. All the witnesses who had any connection with the matter or could have any knowledge of it have testified in the original trial. Their testimony was clear and unequivocal. They were thoroughly and shrewdly cross-examined. Their testimony was not weakened thereby. There was no motion for a new trial on the ground of newly discovered evidence, nor does the record suggest that it could be produced.

Where there is both a motion for judgment notwithstanding the verdict or for a new trial and both are denied, this court may affirm, reverse with directions to order judgment, or grant a new trial. Where, as in this case, there is no probability that the deficiency in proof will be supplied by a new trial, this court should direct judgment notwithstanding the verdict.⁴

On the second question — the negligence of the motorman — the record seems conclusive that, even if it could be said that there was negligence on his part, it was completely insulated by the intervening negligence of Herseth. There may have been a question for the jury as to whether Worthley lingered at the point on the north side of Thirty-eighth street, where⁵ he at least slowed down to observe traffic. At the time he made his observation Herseth was at least 250 feet away. That being the case, Herseth was not within the zone of immediate hazard and did not have the right of way over Worthley. A Minneapolis ordinance⁶ makes it unlawful to travel faster than 25 miles per hour at night. If Herseth traveled 250 feet while Worthley was traveling 37 feet at 10 miles an hour, he was traveling at an unlawful speed and forfeited his right of way.⁷ He was bound to slow down so that Worthley might pass. § 169.20, subd. 3.⁸ Had Worthley at that time continued across Thirty-eighth street, as some witnesses assert that he did, he would have had abundant time to travel the 32 or 37 feet while Herseth was traveling the 250 feet. There was some evidence from which the inference could be drawn that Worthley lingered in starting across Thirty-eighth street in such manner that Herseth might have interpreted his action as an invitation to pass in front of him.

In Flom v. St. Paul City Ry. Co. 218 Minn. 474,16 N.W.2d 551,⁹ the facts are quite similar to those here. In that case, plaintiff was driving his automobile south on Western avenue, which is a through street in St. Paul. Defendant was operating a streetcar on Thomas street, which intersects Western avenue at right angles. The streetcar was stopped in obedience to stop signs at the intersection and also to discharge passengers. It then started to cross Western avenue when plaintiff was over 100 feet from the track and approaching it. The automobile struck the streetcar. In affirming a directed verdict for defendant, this court applied § 169.20, subd. 3, and said (218 Minn. 476,16 N.W. [2d] 552):

"* * * We think the evidence is conclusive that the streetcar had lawfully entered the intersection of Western avenue when plaintiff Flom was something over 100 feet north of the north rail of defendants' streetcar track. In fact, Flom was driving at a speed of about five times that of the streetcar. The woman crossing Western avenue on foot along with the streetcar jumped back when Flom came so near that she realized a collision was imminent. Whether to protect their eyes or to avoid seeing the crash, this woman and one of those on the streetcar closed their eyes when the impact came. The evidence is such that if the jury had returned verdicts for plaintiffs the court would have been compelled to set them aside and grant judgment for defendants notwithstanding the verdicts."

Had Herseth struck the streetcar and had the action been between the driver or occupants of the two vehicles, the facts and circumstances of the two cases would be almost identical, except that in the instant case the automobile was farther away when the streetcar entered the intersection.

The majority are holding in effect that the streetcar company is responsible for Herseth's negligence subsequent to his passing the streetcar. Even if Worthley had been negligent, in my opinion, his action was completely "insulated" as a cause by the subsequent negligence of Herseth and the five-foot extension of the curb. There was nothing in the situation at the time the automobile crossed in front of the streetcar that might lead the motorman to believe that Herseth would not keep a proper lookout, nor is there any evidence that the motorman was aware of the protrusion of the curb line of Bryant avenue into Thirty-eighth street or that he saw plaintiff. The streetcar was stopped or passed by Herseth at a point which left ample room for him to drive in front of it, and he did pass it safely. After passing it, he obviously failed to observe what, in the exercise of ordinary care, he ought to have observed, namely, the abrupt extension of the southerly curb into Thirty-eighth street — a distance of five feet farther than the curb on the west side of the street. It was this extension of the curb, coupled with Herseth's failure to observe it or plaintiff, who stood 13 to 15 feet east of it, that was the superseding, intervening proximate cause of the accident which resulted in plaintiff's injuries. Herseth's negligence insulated the action of the motorman, whether negligent or not. After passing the streetcar, Herseth had at least half the width of Bryant avenue in which to maneuver and avoid the projecting curb, plus 13 to 15 feet more in which to see plaintiff, who was standing on the sidewalk behind the curb and 13 to 15 feet east from the Bryant avenue curb line. Altogether, he had over 30 feet, after passing the streetcar, in which to avoid hitting plaintiff. At the rate he and his passenger assert they were going, this was ample space within which to avoid the curb and plaintiff. A slight touch on the steering wheel would have veered the car a foot and a half to the left and clear of the curb. Instead of that, Herseth swung the car farther to the right after passing the streetcar. He simply failed to see what, in the exercise of ordinary care, he should have seen. Although he passed the front of the streetcar in complete safety, he admitted keeping a view of it "out of the corner of my eye." He could not do that and at the same time maintain a proper lookout ahead. He also admitted turning more to the right. Once Herseth had passed, there was nothing the motorman could have done to prevent the accident, even if he had been aware of the protruding curb or the presence of plaintiff. Certainly, he could not anticipate that Herseth would swing farther to the right. Therefore, the motorman's actions were "insulated" by Herseth's negligence and became a mere "occasion or condition," but not a proximate cause, of plaintiff's injuries. Geisen v. Luce, 185 Minn. 479,242 N.W. 8.

In Beatty v. Dunn, 103 Vt. 340, 343, 154 A. 770, 772, where a question similar to that at bar (except that the negligence of defendant was conceded) was under consideration, the court said:

"* * * But when that danger has been met and overcome, so that there is nothing more to be done to avoid it or its logical consequences, the force set in motion by the defendant's act has spent itself, and there is no causal connection between it and what may follow. In such a case, the dangerous situation created by the defendant's fault ceases to be the cause and becomes the occasion, merely, of subsequent injurious consequences."

In Medved v. Doolittle, 220 Minn. 352, 19 N.W.2d 788, this court, speaking through Mr. Justice Peterson, held that the conduct of a motorist who, while driving on a three-lane highway in broad daylight, first saw defendant's parked truck in the motorist's lane a quarter of a mile away and did nothing about it constituted a superseding, intervening cause "insulating" the prior negligence of defendant in parking the truck in violation of a statute which required flags. The intervening negligence, coupled with the motorist's acts when 175 feet away, in turning to look at his wife asleep in the front seat and so looking when the collision occurred, precluded the motorist's recovery for his wife's wrongful death, citing Restatement, Torts, § 447(c).¹⁰

From these decisions, two principles can be extracted which are applicable to the instant case. First, we ought not impose liability where the effects of defendant's negligence are logically and causally unrelated to the harm to plaintiff because of intervention of unusual continued negligence or unlawful acts of another. In such a situation, defendant's fault ceases to be the cause and becomes an occasion merely of the subsequent injurious consequences. Second, in determining whether a causal relation exists for purposes of affixing liability in cases involving an intervening cause, we should consider the reasonable foreseeability that defendant's conduct would combine with negligent acts of others to produce the harm, as well as the foreseeability of the result itself.¹¹

In the case at bar, Herseth admits that his lights were good. It must be conceded that had he looked ahead he would have seen the curb and plaintiff. His negligence is clear as a matter of law. The jury found against him. He has not appealed.

Of course, it was error to exclude from the evidence the original complaint in the action. I concur with the decision of the majority on this point, but I think there should be judgment notwithstanding the verdict in favor of Robert A. Fredsall and the Minneapolis Street Railway Company.

² M.S.A. 170.54. Cf. Abbey v. Northern States Power Co.199 Minn. 41, 271 N.W. 122; Kayser v. Jungbauer, 217 Minn. 140,14 N.W.2d 337.

³ "Q. Did you have any knowledge before December 21st, 1945, that he had on occasion let other members of the fraternity use the automobile he might be driving?

"Mr. Lilly: On the part of the defendant Fredsall I object as incompetent, irrelevant, immaterial.

"The Court: Overruled.

"Mr. Lilly: Exception.

"The Witness: No, I didn't know that."

⁴ Merritt v. G. N. Ry. Co. 81 Minn. 496, 84 N.W. 321; Diddams v. Empire Milking Mach. Co. Inc. 185 Minn. 270, 240 N.W. 895; cf. In re Estate of Marsden, 217 Minn. 1, 13 N.W.2d 765; First Nat. Bank v. Fox, 191 Minn. 318, 254 N.W. 8 (citing many other cases). See, Drake v. Connolly, 183 Minn. 89, 235 N.W. 614; 3 Dunnell, Dig. Supp. § 5086.

⁵ M.S.A. 169.20, subd. 3: "The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, but the driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicles so proceeding into or across the through highway.

"The driver of a vehicle shall likewise stop in obedience to a stop sign, as required herein, at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed."

⁶ 67 Council Proceedings Minneapolis 637, adopted by letter June 5, 1942, by Hoffmann, State Commr. of Highways; see, M. S. A.169.14, subds. 2 and 5.

"* * * provided that the maximum speed on streets not otherwise zoned shall be thirty (30) miles per hour in the daytime and twenty-five (25) miles per hour in the nighttime. The words daytime and nighttime as used herein shall be defined as provided by Section 2720-18-178, b.3, Masons Minnesota Statutes 1927, 1940 Supplement. Any speed in excess of the limits established and provided by this section shall be unlawful."

Although the recital of facts indicates that Herseth was driving from 20 to 45 miles per hour, the testimony of witnesses other than Herseth shows that he was driving more than 25 miles per hour and, indeed, on examination Herseth conceded that he was approaching the intersection and was driving into the intersection at a speed of more than 25 miles per hour.

⁷ M.S.A. 169.20, subd. 1: "The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

"When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.

"The foregoing rules are modified at through highways, and otherwise as hereinafter stated in this section.

"The driver of any vehicle or street car traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder."

⁸ "The driver of a vehicle shall stop as required * * *, and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right of way to the vehicles so proceeding into or across the through highway."

⁹ Cf. also, Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883,175 A.L.R. 1007, where this court held that defendant was negligent as a matter of law in failing to see a car coming up to an unmarked intersection 100 feet away and in controlling his car so as to avoid a collision, under 169.20, sub. 1.

¹⁰ A defendant is not liable for the results of unforeseeable results of extraordinary forms of negligent conduct, including the reckless or unusual driving of vehicles. Cf. e. g., Meyette v. C. P. Ry. Co. 100 Vt. 345, 6 A.2d 33; Butner v. Spease,217 N.C. 82, 6 S.E.2d 808 (citing many cases); Hendricks v. Pyramid Motor Freight Corp. 328 Pa. 570, 195 A. 907; DeCamp v. Sioux City, 74 Iowa 392, 37 N.W. 971. See, Prosser, Torts, 365-366.

In the application of the rules of intervening cause, courts will consider whether the injury produced was a normal part of the risk produced. Cf. Salt River Valley Water Users' Assn. v. Cornum, 49 Ariz. 1, 63 P.2d 639; La Londe v. Peake, 82 Minn. 124,84 N.W. 726; Hansen v. St. Paul Gaslight Co. 82 Minn. 84,87, 84 N.W. 727, 728; Paquin v. Wisconsin Central Ry. Co.99 Minn. 170, 175, 108 N.W. 882, 884; Neidhardt v. City of Minneapolis, 112 Minn. 149, 127 N.W. 484, 29 L.R.A. (N.S.) 822 (semble); Lundstrom. v. Giacomo, 194 Minn. 624, 261 N.W. 465; Johnson v. Sunshine Creamery Co. 200 Minn. 428, 435,274 N.W. 404, 407. Cf. also, Phillips v. Dickerson, 85 Ill. 11, 16,28 Am. R. 607, 609; but cf. McDowell v. Village of Preston,104 Minn. 263, 266, 116 N.W. 470, 471, 18 L.R.A. (N.S.) 190. See, Hoag v. Lake Shore M. S. R. Co. 85 Pa. 293, 298,27 Am. R. 653; Pennsylvania R. Co. v. Hope, 80 Pa. 373, 378,21 Am. R. 100; 16 Am. Eng. Enc. of Law 436, note 4; 2 Thompson, Negligence, 1085; Shearman Redfield, Negligence, § 739; 38 Am. Jur., Negligence, § 72; Restatement, Torts, § 433 (b). Many of these cases have their origin in M. St. P. Ry. Co. v. Kellogg, 94 U.S. 469, 475, 24 L. ed. 256, 259.

¹¹ See, Prosser, Torts, 365-367. Restatement, Torts, § 433(b).