Carlson v. Fredsall

¹ Reported in 37 N.W.2d 744. This action to recover for personal injuries was originally brought against defendants Robert A. Fredsall and John Herseth. Thereafter, the complaint was amended so as to include as defendants Minneapolis Street Railway Company and Lloyd A. Worthley. The jury returned a verdict in favor of plaintiff against all defendants. Defendants Fredsall and the Minneapolis Street Railway Company and Worthley have appealed separately from an order denying their respective alternative motions for judgment or a new trial. The appeals have been consolidated here. Defendant Herseth has not appealed.

Many of the facts are not in dispute. Bryant avenue south in the city of Minneapolis runs in a north-south direction. From curb to curb it is 36 feet wide. In the center of the street there are two streetcar tracks. West Thirty-eighth street runs in an east-west direction, intersecting Bryant avenue south at approximately right angles. Streetcar tracks branch off from the main tracks on Bryant avenue so as to form a Y running into Thirty-eighth street on the west side of the intersection, which tracks run for approximately 140 feet west of the intersection. The Y is used for turning cars that go no farther. To the west of the intersection, Thirty-eighth street is 37 feet wide for a distance of approximately 140 feet, or for about the same distance as the tracks forming the Y run west along Thirty-eighth street. To the east of the intersection, Thirty-eighth street is 32 feet wide, and west of the tracks forming the Y it is likewise approximately the same width. The north side of Thirty-eighth street, on both sides of the intersection, runs in a straight line. Consequently, the difference in width of Thirty-eighth street is all reflected on the south side of the street, where the curb line on the east side of Bryant avenue extends five feet farther north than it does on the west side of Bryant avenue. Thirty-eighth street is a through street, having stop signs on the north and south sides of the intersection on Bryant avenue. Both streets at and for some distance in both directions from the intersection are substantially level.

Buses owned by a subsidiary of the Minneapolis Street Railway Company travel on Thirty-eighth street. On December 21, 1945, about 12:10 a. m., plaintiff was a passenger on one of these westbound buses. The bus stopped on the northeast corner of the intersection, and plaintiff alighted from the front exit of the bus, passed around the front end of the bus, and crossed the street to the southeast corner of the intersection, where he intended to board a northbound streetcar. Shortly before the bus had stopped, Lloyd A. Worthley, operating a southbound streetcar along Bryant avenue, had come to a full stop north of the intersection for the purpose of taking on some passengers and for the purpose of complying with the stop sign. He then proceeded to the curb line on the north side of the intersection, where he could obtain an unobstructed view of Thirty-eighth street both east and west. His view to the west was obstructed by some large trees until he reached the curb line. He observed a car approaching some distance to the west. He estimated the distance to be about 250 feet. The testimony of the witnesses differs radically as to what he then did. Worthley claims that he went no farther. Other witnesses claim that he proceeded into the intersection and had gone about one-third to one-half or more of the distance through the intersection when John Herseth, driving the car owned by Robert A. Fredsall, entered the intersection. It is not disputed that Herseth approaching on Thirty-eighth from the west swung his automobile to the right, passed in front of the streetcar, ran up onto the curb on the southeast corner of the intersection, and struck plaintiff, who was then standing either on the sidewalk or near it. The negligence of Herseth is not seriously disputed.

Worthley testified that when he first saw the automobile driven by Herseth it appeared to be traveling fast. The speed of the Herseth car was variously estimated to be from 20 to 45 miles per hour. None of the witnesses claim that the streetcar traveled into the intersection at an excessive rate of speed. Most of them claim that the pavement was somewhat covered with light snow and that the edge was slippery. Herseth contends that the pavement was dry. He did not slacken his pace as he approached and entered the intersection; instead, it was admitted, he increased his speed as he passed or was about to pass in front of the streetcar. It is undisputed that the automobile and streetcar did not touch each other, and it is likewise conceded that, regardless of where the streetcar was when the automobile passed in front of it, the streetcar had come to a stop by that time.

The automobile driven by Herseth was a 1935 Oldsmobile sedan purchased in 1944 by Robert A. Fredsall from his father while Robert was in the navy. On December 19, 1945, Robert, who had just been released from active duty, loaned the automobile to his brother, Roger Fredsall, who was then a student at the University of Minnesota. Roger was president of and active in the affairs of Psi Omega dental fraternity. At the election of officers in December 1945 Herseth was elected to succeed Roger as president. On the day in question, Roger gave Herseth permission to use his brother's automobile to attend to some fraternity business having to do with negotiations pending for a new lease between the fraternity and the owner of the fraternity house.

December 19 was the first time Robert had loaned the car to Roger. Robert was not acquainted with Herseth. Originally, the automobile was loaned to Roger by Robert for the purpose of picking up their sister, who was to arrive on the train Thursday morning, December 20. She did not arrive, so on Thursday Roger called Robert's home on the telephone and talked to Robert's wife, who gave him permission to retain the car until Friday. Robert had no knowledge of the fact that Roger intended to permit anyone else to use the car besides himself.

On the appeal of the Minneapolis Street Railway Company, two questions are presented for determination: (1) Does the evidence justify submission to the jury of the question of this defendant's negligence and its proximate cause; and (2) was there such prejudicial error committed in the rejection of evidence as to require a new trial?

1. The first proposition relates to the question of causation. It is the contention of the streetcar company that its motorman was not negligent in any respect and that, even if he could be charged with negligence in moving into the intersection, such negligence was not the proximate cause of plaintiff's injuries. It further contends that the negligence of Herseth was an intervening cause insulating any negligence of the motorman which may have existed prior to the negligence of Herseth.

In passing upon the liability of defendants, we must view the evidence in the light most favorable to plaintiff. So doing, the jury could find that Worthley stopped his streetcar north of the intersection for the purpose of taking on passengers and to observe the requirements of the stop sign and that he then moved to the curb line on the north side of the intersection for the purpose of observing traffic on Thirty-eighth street; that he looked to the west and saw the Herseth car coming toward him at a fast rate of speed; that he started into the intersection when Herseth was in close proximity to the west side of the intersection and that when he realized that he could not safely pass in front of the automobile he brought his streetcar to a sudden stop. According to their testimony, the occupants of the streetcar agree that the car did come to an abrupt stop. The testimony of the witnesses varies greatly as to how far the streetcar had traveled into the intersection when this sudden stop occurred. The jury could find that when Herseth realized the impending collision if both automobile and streetcar continued forward he swung his automobile to the right in order to avoid a collision and that as a result thereof he ran up onto the curb on the southeast corner of the intersection and struck plaintiff.

There is no dispute that the south curb line on the east side of the intersection is five feet farther north than it is on the west side of the intersection. If the Herseth automobile was so close to the intersection that a collision was imminent if the streetcar proceeded into the intersection, it was the duty of the streetcar to yield the right of way. If the motorman failed to do so and the sudden movement of the streetcar into the intersection caused the automobile to veer to the right in order to avoid a collision and as a result thereof the automobile ran onto the curb on the southeast corner of the intersection, Worthley's failure to yield the right of way could be negligence, and the jury could find it was a proximate cause.

The mere fact that Worthley tried to avert a collision by suddenly bringing the streetcar to an abrupt stop after he had created the risk to plaintiff by setting in motion a series of events that caused Herseth ultimately to run into plaintiff is not sufficient to relieve Worthley from liability. It is not enough that Herseth was the more negligent. If the negligence of Worthley created the risk to plaintiff, the jury should be left to determine whether such negligence contributed proximately to plaintiff's injuries. Restatement, Torts, § 437.

The action of Herseth in veering to the right was caused directly by Worthley's negligent entry into the intersection in violation of Herseth's right of way. Herseth's veering to the right was a normal response to the stimulus of a situation created by the negligence of Worthley. As such, it was not a superseding cause. Restatement, Torts, § 443.

"* * * The new, independent, intervening cause must be one not produced by the wrongful act or omission, but independent of it, and adequate to bring about the injurious result." Purcell v. St. Paul City Ry. Co. 48 Minn. 134, 138,50 N.W. 1034, 16 L.R.A. 203.

Prosser, The Minnesota Court on Proximate Cause, 21 Minn. L.Rev. 38, says:

"* * * Neither are forces caused or set in motion by the defendant himself to be considered as intervening, since they proceed directly from the defendant's conduct, and he is to be charged with their results."

Had Worthley yielded the right of way, as he should have, Herseth could have continued in a straight line and plaintiff would have been safe. At least, the jury could so find. The mere fact that Herseth was negligent in driving too fast or in failing to keep a proper lookout should not relieve the operator of the streetcar from liability for negligence in causing the Herseth car to veer to the right when the direct cause of plaintiff's injuries was the fact that Herseth did not continue in a straight line and that action on his part was due directly to the negligence of the operator of the streetcar in entering the intersection in such close proximity to the Herseth car as to cause him to suddenly veer to the right in order to avoid a collision. Veering to the right was not an independent force, but the result of the action of the streetcar motorman in moving into the intersection. The questions of the negligence of the motorman and proximate cause were for the jury.

2. In the original action brought against Robert A. Fredsall and John Herseth, plaintiff alleged that his injuries weresolely the result of the carelessness and negligence of Herseth and Fredsall. At the time of the trial, the Minneapolis Street Railway Company and Worthley offered to prove by this original complaint that plaintiff had originally commenced the suit against Fredsall and Herseth alone. The complaint was not verified and was signed only by counsel. The offer was rejected.

Some confusion exists as to the admissibility of amended or superseded pleadings, on account of the apparent discrepancy in our former decisions. In Vogel v. D. M. Osborne Co. 32 Minn. 167,20 N.W. 129, we held that an amended or superseded pleading is admissible as an admission against the party who interposed it if verified by him, but that before an unverified pleading could be admitted it must be shown that the party authorized or directed the insertion of the allegations in the pleading.

In Burns v. Maltby, 43 Minn. 161, 45 N.W. 3, we held that it was not error to exclude unverified pleadings in another case involving the same claim where it did not appear that plaintiff had knowledge of its contents.

In Salo v. D. I. R. R. Co. 121 Minn. 78, 89, 140 N.W. 188,192, we held that an unverified complaint, superseded by a later complaint, was inadmissible without first showing that plaintiff knew its contents.

In Bakkensen v. Minneapolis St. Ry. Co. 184 Minn. 274,238 N.W. 489, the situation was just the reverse of that in the instant case. There, plaintiff originally brought suit against the driver of an automobile and the streetcar company to recover damages for injuries alleged to have been sustained by the joint negligence of the defendants. The driver of the automobile died before the trial, and the suit was dismissed. Thereafter, a new action was begun against the streetcar company alone. Defendant offered in evidence the unverified complaint in the original action. It was received over plaintiff's objection. The court held that it was admissible under the rule laid down in Carpenter v. Tri-State T. T. Co.169 Minn. 287, 211 N.W. 463.

In the Carpenter case an automobile accident occurred when the driver of an automobile collided with a telephone pole in a heavy fog. At the invitation of the driver of the automobile, Agnes Carpenter, Louis D. Bernier, and Mrs. Swenfurter were riding with him. Bernier was killed and 'Mrs. Carpenter was injured. Three actions were begun, one by Mrs. Carpenter to recover for her injuries, one by her husband to recover expenses, and one by Anna Bernier as special administratrix to recover for the death of Bernier. The complaints were not verified and were signed only by counsel. Thereafter, the driver of the automobile died. Subsequent to his death, plaintiffs, by different counsel, brought other actions against the telephone company predicated upon the claim that the proximate cause of the accident was the company's negligence in failing to properly locate the pole with which the automobile collided. Upon the trial, Mrs. Carpenter's testimony exonerating the driver of the automobile was inconsistent with the allegations of the complaints in the first actions brought against him. Defendant offered in evidence her complaint in the first action. It was received over plaintiffs' objection. Mr. Carpenter's complaint in the first action was also received over objection. After the reception of the complaints, undisputed testimony was given to the effect that the two Carpenters had not personally talked to their attorneys before the first actions were begun and that they did not know the contents of their complaints. The trial court granted a new trial on the ground that the complaints were improperly admitted. Our language in reversing the trial court probably is responsible for much of the confusion that seems to exist regarding this question. We said (169 Minn. 289,211 N.W. 464):

"A verified pleading is admissible as an admission or for impeachment. Siebert v. Leonard, 21 Minn. 442; Vogel v. D. M. Osborne Co. 32 Minn. 167, 20 N.W. 129. It may, when the party allows it to remain the pleading in the case, be received in evidence for such purposes even though it is not verified and is signed only by the attorney. Vogel v. D. M. Osborne Co. supra. When a party has indicated himself dissatisfied with a pleading by substituting a new one, the original pleading, when not verified, can no longer be received in evidence until a foundation therefor is laid. This requires the party offering the evidence to show affirmatively that the pleader authorized or directed the insertion of the particular statement of fact. Vogel v. D. M. Osborne Co. supra; Salo v. D. I. R. Rd. Co.121 Minn. 78, 140 N.W. 188. The reason for this is that the pleader has by such amendment impliedly said that the original was interposed under a mistake as to the facts. These authorities do not sustain respondent's contention. In the absence of such repudiation it is presumed that the statements in a pleading, though not verified, are made with the approval of the party. As such they are admissible. They are not conclusive, but subject to explanation. As to the Carpenter cases much of the probative value of the pleading was probably destroyed by the explanation given which tended to show that they never knew the contents of the pleading. This went to the weight of the evidence and not to its admission. It rested with the jury to say whether there remained a residuum of probative force. Of course a pleading filed without authority is not admissible. When the objection goes to lack of authority to make the pleading, a question of fact is presented which the trial court must then determine. The burden then is upon the one making the objection to overcome the presumption. But when the relation of attorney and client exists the pleading is to be received in evidence. Counsel is not only the representative of his client but he is an officer of the court. The pleading in question being an authorized one, it comes within the rule of the Vogel case. We know of no case in this state requiring the party offering the pleading in evidence to show affirmatively that the pleader authorized or directed the insertion of the particular statement except where the pleading has been amended. The language of the court in Burns v. Maltby, 43 Minn. 161,45 N.W. 3, must be regarded as used inadvertently since the authorities cited do not sustain the statement made. To so hold would practically result in excluding all unverified pleadings.

"The pleading in the Agnes Carpenter case was properly received for impeachment purposes and all the complaints in their respective cases were properly received as containing an admission against interest."

In the later case of Hork v. Minneapolis St. Ry. Co.193 Minn. 366, 369, 258 N.W. 576, 577, we said:

"* * * a pleading in another case, or one superseded by amendment, is out of the record and so not to be used unless offered and received in evidence, sometimes not even then. Vogel v. D. M. Osborne Co. 32 Minn. 167, 20 N.W. 129. Absence of verification by the party himself is immaterial upon the question of admissibility, although it may have something to say upon the weight of the pleading as evidence. Carpenter v. Tri-State T. T. Co.169 Minn. 287, 211 N.W. 463."

There is no sound reason for admitting a pleading in an action which has been dismissed and denying admission of a pleading that has been amended. The allegations of one are as much an admission as the other. If plaintiff in the instant case had dismissed his original suit against Herseth and Fredsall and commenced a new action against Herseth, Fredsall, Worthley, and the Minneapolis Street Railway Company, obviously the complaint in the first action would be admissible under the Bakkensen case, supra. There is no reason why it should not be equally admissible when it is amended so as to accomplish the same purpose. The original complaint alleges that plaintiff's injuries were solely the result of the negligence of Herseth and Fredsall. This allegation is inconsistent with his present claim of joint and concurrent negligence on the part of all the defendants now included in the action.

There is much authority on the subject and likewise much confusion in the application of cases. The weight of authority is that an amended pleading, even though unverified, is admissible as an admission or for the purpose of impeachment. 4 Wigmore, Evidence (3 ed.) § 1067; 20 Am. Jur., Evidence, §§ 644, 645; Annotations, 14 A.L.R. 65 and 90 A.L.R. 1402.

The better rule, and that which would lead to the least confusion, is that amended or superseded pleadings are admissible against the party interposing them, even though signed only by counsel, and that it is presumed that an attorney commencing an action has authority to prepare the pleadings. To overcome that presumption, the party against whom the pleading is offered may show that he did not have knowledge of its contents. Such proof will go to the trier of facts as affecting the weight of the evidence, but does not affect its admissibility. There seems to be no good reason for a presumption that an attorney had authority to draw an unverified pleading that remains in the case any more than that he had authority to draw a pleading that was later amended or superseded. It is not required under our code pleading that a complaint be verified. To hold that an unverified pleading is presumably made by an attorney with the authority and knowledge of his client if it remains in the case, and that such presumption does not prevail if it is amended, simply leads to absurdity. A party should not be permitted to avoid the consequences of charges and statements in a complaint by so simple an expedient as stating categorically that he did not verify the complaint. Whether a complaint is verified or not, the allegations contained therein are statements upon which plaintiff bases a cause of action, and the statements are nonetheless claims on his part against the defendants, and likewise admissions, whether they are verified or not. It may be that where the statements are made under oath they are entitled to greater weight than otherwise, but it should not affect the admissibility of the statements as an admission.

We conclude that the original complaint in this case was admissible as an admission and for impeachment purposes and that it was error to exclude the proof offered, for which there must be a new trial. The allegations in the original complaint are so entirely inconsistent with plaintiff's present claims that if the jury believed that plaintiff's original complaint stated the true version of the accident it would obviously relieve the streetcar company and its motorman from all liability. Under these circumstances, it was highly prejudicial to exclude the offered evidence, which requires a new trial.

3. Appellants also assign as error instructions of the trial court relating to the definition of proximate cause. After giving a substantially correct definition of proximate cause, the court added the following:

"When two or more persons through their negligence cause harm concurrently, then the law is that if their negligence, concurrent negligence, was a material factor or substantial element bearing directly upon the resultant harm, then they are both responsible for all the harm, lose and damage that ultimately flows and results from that concurrent negligence."

In Seward v. Minneapolis St. Ry. Co. 222 Minn. 454, 457,25 N.W.2d 221, 223, we disapproved of the "material element or substantial factor" theory of proximate cause. The instant case is another illustration of the danger of using this theory in defining proximate cause. The quoted portion of the court's instruction is not a correct definition of proximate cause. It ignores entirely the element of intervening cause, which is important in the present controversy. It is not sufficient to say that elsewhere in the instructions a correct definition of proximate cause is to be found. Following a correct instruction by an incorrect definition would confuse rather than enlighten the jury. In view of the fact that there must be a new trial, nothing more need be said concerning this assignment of error, as the trial court will no doubt guard against a repetition of it.

4-5. On the appeal of Robert A. Fredsall, only one question is raised, namely: Was defendant Herseth driving the automobile owned by Robert with the consent, express or implied, of the owner, under M.S.A. 170.54? This section reads:

"Whenever any motor vehicle, after Laws 1945, Chapter 285, becomes effective, shall be operated upon any public street or highway of this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof."

The court held as a matter of law that the negligence of Herseth would be imputed to the owner of the car. In this the court was in error. There is no evidence of any express consent. Implied consent, if it exists at all, must be drawn from all the facts and circumstances existing in the case and is usually a question for the jury. Koski v. Muccilli,201 Minn. 549, 277 N.W. 229; Steinle v. Beckwith, 198 Minn. 424,270 N.W. 139; Kerns v. Lewis, 249 Mich. 27, 227 N.W. 727.

On the record as it now stands, it is doubtful whether there is any evidence from which the jury could find implied consent under our former decisions. Krahmer v. Voss, 201 Minn. 272,276 N.W. 218; Ewer v. Coppe, 199 Minn. 78, 271 N.W. 101; Kayser v. Jungbauer, 217 Minn. 140, 14 N.W.2d 337; Abbey v. Northern States Power Co. 199 Minn. 41, 271 N.W. 122.

6. The trial court and counsel for plaintiff seem to have proceeded upon the theory that consent was established as a matter of law. Inasmuch as there must be a new trial against defendant streetcar company and there is a probability that the evidence of implied consent may be stronger on another trial if counsel and the court proceed upon the correct theory, we feel that in the interests of justice a new trial should be granted against all parties rather than to grant judgment notwithstanding the verdict in favor of defendant Fredsall. In passing upon a motion for a new trial on the ground that the verdict is not justified by the evidence, the court may properly take into consideration the probability that on another trial stronger evidence will be adduced. 5 Dunnell, Dig. § 7143; Cruikshank v. St. Paul F. M. Ins. Co. 75 Minn. 266,77 N.W. 958; Kreatz v. St. Cloud School Dist. 79 Minn. 14,81 N.W. 533; Farmers State Bank v. Merchants M. State Bank,164 Minn. 300, 204 N.W. 965.

Reversed and new trial granted as to all parties.