Hanson v. Hall , 202 Minn. 381 ( 1938 )

¹ Reported in 279 N.W. 227. Appeal from an order denying defendants' alternative motion for judgment or a new trial.

On June 30, 1936, there was a strike by the Independent Union of All Workers against the Gamble-Robinson Company in Austin. To prevent shipments from reaching that firm, the union detailed the three defendants to Lyle, 11 miles south from Austin, with instructions to stop and search all trucks which they thought might be transporting goods so consigned. They went to Lyle in defendant Gieger's automobile and parked it, with lights dimmed, on a north-and-south street in that village. That street consists of a 20-foot, two-lane pavement with approximately 20 feet of black top gravel on each side and is a part of United States highway No. 218. The car was parked near the west curb pointing south.

About 1:30 that morning plaintiff entered the village from the south on highway No. 218, driving a truck loaded with shelled corn for delivery at Sparta, Wisconsin. About 130 to 150 feet ahead of him was a truck driven by one Louis Elgen, similarly loaded and destined for the same place. Both trucks were traveling about 30 miles per hour. When the trucks entered the village, Gieger turned on his driving lights, and the other two defendants left the automobile and stationed themselves on the west lane of the pavement a few feet north of the automobile and signaled the trucks to stop. Elgen first saw the men when 250 to 300 feet south of them and applied the brakes momentarily, slowing his speed to 20 to 25 miles per hour. Plaintiff saw the brake signal on the Elgen truck, but he and his relief driver testified that the bright lights of the Gieger car prevented their seeing the defendants on the pavement north of the car. Seeing no obstruction in the road, plaintiff slightly reduced his speed and turned into the west lane of the pavement to pass the Elgen truck. When almost up to the men on the pavement, Elgen further reduced his speed. By this time plaintiff had reached a point opposite the Gieger car and then for the first time saw defendants on the pavement. He swung his truck back into the east lane of the pavement to avoid hitting them, at the same time applying his brakes, and struck the left rear corner of the Elgen truck. For the damage resulting to his truck, plaintiff brought this action.

Defendants' versions of the manner in which the accident happened vary considerably from the foregoing, but the view of the evidence most favorable to the prevailing party must be taken on this appeal. Jacobsen v. Ahasay, 188 Minn. 179,246 N.W. 670; 5 Dunnell, Minn. Dig. (2 ed. Supps. 1934, 1937) § 7159; 5 C.J.S., Appeal and Error, § 1562 (d); 3 Am. Jur., Appeal and Error, §§ 937, 952; Hack v. Johnson, 201 Minn. 9,275 N.W. 381; McIlvaine v. Delaney, 190 Minn. 401,252 N.W. 234.

The questions for decision are: (1) Is plaintiff's contributory negligence a defense to this action; (2) were defendants' acts a proximate cause of plaintiff's damage; and (3) was the jury correctly instructed as to the measure of damages?

1. Plaintiff complains that his damage was caused by the wilful negligence of defendants. The latter alleged and attempted to prove that plaintiff was contributorily negligent, but the trial court, being of the opinion that defendants were engaged in the active prosecution of a conspiracy to interfere with plaintiff's right to use the highway, refused to submit plaintiff's contributory negligence to the jury on the ground that it was no defense to the cause of action stated.

Our society is builded in part upon the free passage of men and goods, and the public streets and highways may rightfully be used for travel by everyone. 3 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934, 1937) § 4168. But inherent in every private right is the duty to exercise it for a lawful purpose and in a reasonable manner so that the equal rights of others will not be invaded or destroyed. The right to use a highway for purposes of travel does not give a person permission to use it in every fashion which suits his convenience. The right to use a highway extends only to its use for communication or travel; there is no right merely to be on a highway. 16 Halsbury's Laws of England (Hailsham ed.) p. 238. "Streets and highways are dedicated, secured and maintained primarily for public transit, and must be so preserved. All other uses thereof must be subordinated or yield to the right of free and unobstructed passage." State v. Sugarman, 126 Minn. 477, 479, 148 N.W. 466, 467,52 L.R.A.(N.S.) 999.

Beyond question, it is lawful for workingmen to combine and to strike for the purposes of raising wages, shortening hours, improving working conditions, and securing union recognition. Unassailable also is their right to inform the public, by means of pickets bannering an employer's place of business, of their grievances which give rise to the strike. Gray v. Building Trades Council, 91 Minn. 171, 97 N.W. 663, 63 L.R.A. 753,103 A.S.R. 477, 1 Ann. Cas. 172; Minnesota Stove Co. v. Cavanaugh, 131 Minn. 458, 155 N.W. 638; George J. Grant Const. Co. v. St. Paul B. T. Council, 136 Minn. 167, 161 N.W. 520,1055. To carry out these purposes they may make reasonable use of the public streets and highways. Steffes v. Motion Picture M. O. U. 136 Minn. 200, 161 N.W. 524; International P. W. U. v. Orlove, 158 Md. 496, 148 A. 826. While trade unions and their members have a right to use the highways equal to the rights of other members of the public, that right is bounded by equal limitations. It must be exercised for a legitimate purpose and in a lawful manner; the mode of user must not prevent or impede the reasonable use of the highways by others. Steffes v. Motion Picture M. O. U. 136 Minn. 200,161 N.W. 524; Mackall v. Ratchford, 82 F. 41; Baltic Min. Co. v. Houghton Circuit Judge, 177 Mich. 632, 144 N.W. 209; Jefferson Ind. C. Co. v. Marks, 287 Pa. 171, 134 A. 430,47 A.L.R. 745.

Defendants testified that they went to Lyle for the purpose of stopping and searching trucks traveling on the highway; that they turned on the automobile lights, stood in the highway, and signaled the trucks to stop to carry out that purpose. The right to travel upon a highway does not privilege any person to commit, without lawful justification, any act whereby the exercise of the public right of passage is obstructed or rendered dangerous. Salmond, Torts (9 ed.) p. 290. Any conduct which has this effect is a public nuisance and is a crime against the order and economy of this state. 2 Mason Minn. St. 1927, § 10241. Since the purpose of this statute is to secure to everyone the enjoyment of a public right, the violation of the statute does not give a private individual a cause of action if the only wrong he suffers is one common to all members of the public, that is, if the exercise of his right of travel only is impeded. Restatement, Torts, § 288 (b), and comment. But if it is shown that he has suffered some special damage, harm to his person or property, because of the unlawful obstruction of his right, the person violating the statute is civilly liable. Harper, Torts, § 190; Clerk Lindsell, Torts (9 ed.) p. 457; Pollock, Torts (13 ed.) p. 419; Salmond, Torts (9 ed.) p. 293.

The intentional invasion of the rights of another has been termed wilful negligence. However wilful such act may be, it is in no sense negligent. The very fact that an act is characterized as negligent indicates that harm to another as the result of it was neither foreseen nor intended, although a reasonable man would have foreseen danger to others because of it and would have adopted another course of conduct. Wilful negligence embraces conduct where the infringement of another's right is not only intended but also it is foreseen that the conduct pursued will result in such invasion. Mueller v. Dewey,159 Minn. 173, 198 N.W. 428; Anderson v. Commr. of Internal Revenue, 81 F.2d 457, 104 A.L.R. 676; Restatement, Torts, § 282, comments c, d, § 500, comments f, g.

Admittedly, defendants intended to invade plaintiff's right to the reasonable use of the highway for purposes of travel. Where an action is based on an unintentional invasion of another's right, the contributory negligence of plaintiff is a proper offset to defendant's liability. McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1. But where the action is based on an invasion which is both intentional and criminal, the mere negligence of the person whose rights are invaded is no adequate defense. Lambrecht v. Schreyer, 129 Minn. 271,152 N.W. 645, L.R.A. 1915E, 812; Mueller v. Dewey, 159 Minn. 173,198 N.W. 428; Hinkle v. M. A. C. R. Ry. Co. 162 Minn. 112,202 N.W. 340, 41 A.L.R. 1377; Restatement, Torts, § 481; Harper, Torts, § 151. Only if plaintiff's fault is of a culpability equal to that of defendant will plaintiff's conduct contributing to the cause of his harm be a bar to defendant's liability. Hinkle v. M. A. C. R. Ry. Co. supra; Harper, Torts, § 151. No such conduct by plaintiff is either pleaded or proved in this case.

It follows that the trial court was correct in refusing to submit the question of contributory negligence to the jury.

2. The second question is whether defendants' intentional invasion of plaintiff's interest in unobstructed travel is the proximate cause of the damage of which he complains. The evidence discloses that plaintiff was traveling at a lawful speed, that he turned into the left lane of the pavement in the course of a lawful maneuver, that he was compelled to turn back into the right lane because of the obstruction of the highway by defendants, and that as a result his truck collided with another truck and was damaged. When a person intentionally and unlawfully impedes another in the lawful exercise of a right, the effort of that other to exercise his right is not a superseding cause of the resulting harm. Restatement, Torts, § 446. The fact that defendants intended only to prevent his passage and did not intend to damage his truck does not avert liability. The proximate results of a wrongful act are not limited to those harms which defendants intended or foresaw. 4 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934, 1937) § 7002. Defendants intended a wrongful invasion of plaintiff's rights, and they should have anticipated that their act in carrying out their purpose would lead to the injury of plaintiff's person or property. Restatement, Torts, § 289, comment c. But, whether or not defendants intended to damage plaintiff's property, they did intend an unlawful invasion of his rights and are liable for all of the proximate results of their intentionally unlawful conduct, foreseeable or unforeseeable. Bizzell v. Booker, 16 Ark. 308; Vandenburgh v. Truax, 4 Denio (N.Y.) 464, 47 Am. D. 268; Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403,14 L.R.A. 226, 27 A.S.R. 47.

The evidence is sufficient to justify a finding that defendants' unlawful acts were a proximate cause of the harm complained of. Molin v. Wark, 113 Minn. 190, 129 N.W. 383,41 L.R.A.(N.S.) 346; Edblad v. Brower, 178 Minn. 465,227 N.W. 493; Rhoden v. Peoria Creamery Co. 278 Ill. App. 452; Meyer v. Neidhoefer Co. 213 Wis. 389, 251 N.W. 237; Boggs v. Jewel Tea Co. 266 Pa. 428, 109 A. 666; Minnehan v. Hiland,278 Mass. 518, 180 N.E. 295; Grier v. Scandura, 112 N.J.L. 152,169 A. 674; McAfee Co. v. Martin, 34 Ga. App. 247, 129 S.E. 168; Thornton v. Eneroth, 177 Wash. 1, 30 P.2d 951; Holt v. Fountain, 218 Ala. 661, 120 So. 149; Carstensen v. Thomsen,215 Iowa, 427, 245 N.W. 734; Prosser, The Minnesota Court onProximate Cause, 21 Minn. L.Rev. 19.

3. Suit was brought for the cost of repair of the truck, which was alleged to be $200, and for the loss of its use while it was being repaired, which was alleged to be $135. The question of damages was submitted to the jury on this basis by the trial court.

Where the damages to a vehicle are such that repairs will put it in substantially the same condition that it was before the accident, the proper measure of damages is the cost of making such repairs. Engholm v. Northland Transp. Co. 184 Minn. 349,238 N.W. 795. Plaintiff has expended only $51 in the repair of his truck, but the record shows that the truck is not now in substantially the same condition that it was before the collision, and that to put it in such condition would require considerable additional repair, which would bring the total cost to $200. To be entitled to the cost of repair as the measure of his damages, plaintiff was not bound to put the truck in substantially the same condition that it was before the collision prior to commencing his action.

Defendants contend that plaintiff is not entitled to damages for the loss of the use of his truck. The measure of damages suffered as the result of harm to a commercial vehicle includes the reasonable value of the benefit which would have been derived from its use during the period it was undergoing repairs. Lawndale S.D. Works v. Chicago Daily News Co. 189 Ill. App. 565. Plaintiff testified that the truck was used for commercial hauling. To recover for damages suffered because of the loss of use it must be shown that another truck could not be hired during that time. Francischini v. McMullen, 6 N.J. Misc. 736, 142 A. 651. Plaintiff testified that he was unable to find any truck available. If it cannot be replaced while it is being repaired, the measure of the value of use of a commercial vehicle is determined by the income derived from its use at the time of the tort. Longworth v. McGrath, 108 Conn. 738, 143 A. 845; Trout A. L. Co. v. Peoples G. L. C. Co. 168 Ill. App. 56; Cincinnati Traction Co. v. Feldkamp, 19 Ohio App. 421. Plaintiff testified that he cleared about $15 a day from its use. That the time consumed in making repairs was reasonable must also be shown. Allen v. Brown, 159 Minn. 61,198 N.W. 137. The jury might find that nine days was reasonably necessary since the cab of the truck had to be sent to Mason City, Iowa, to be repaired.

The trial court correctly charged the jury as to the measure of damages.

Order affirmed.