
    OLIVER BAKKEN v. CECIL LEWIS AND OTHERS. FRANK REHSE AND OTHERS, APPELLANTS.
    
    March 14, 1947.
    Nos. 34,289, 34,290.
    
      (?. P. Mahoney, J ofm S. Morrison, and Edman & Edman, for appellants Cecil and Duane Lewis.
    
      Freeman & King, O. A. J oTmson, and E. J ofm Abdo, for appellant Frank Eehse.
    
      Leo J. Seifert, for respondent Oliver Bakken.
    
      Moonan & Moonan, for respondents Louis and Wayne Lutz.
    
      
       Reported in 26 N. W. (2d) 478.
    
   Magnet, Justice.

A verdict for $30,000 was rendered for plaintiff against defendants Frank Eehse, Cecil Lewis, and Duane Lewis. Eehse and the Lewises separately appeal from orders denying their alternative motions for judgment or a new trial.

Eehse was the owner of a 1936 Dodge coach. On the evening of November 4, 1944, between eight and nine o’clock he was driving north on a graveled country road leading from the village of Granada. A two-wheeled trailer equipped with a box was attached to his car. About half a mile from Granada the car stalled. It was stopped on the right-hand side of the road near the grass line. The graveled portion of the road was 26 feet wide, with grass shoulders one to one and a half feet in width. Beyond that was a three-foot ditch. When Rehse found he could not get his car started he walked back to Granada. Plaintiff operated an automobile repairshop in the village, and Rehse persuaded him to go out to the stalled car to start it. Plaintiff took a customer’s car which was in good running order and went out. He drove in front of the Rehse car and attached a tow chain to it. Plaintiff pulled ahead, and Rehse sat back of the wheel in his own car and steered it, with the ignition on and the ear in gear. They moved ahead some distance, but the Rehse car would not start. After the cars had stopped, Rehse got into the front car and plaintiff into the Rehse car. Rehse then moved ahead about a block, but the engine of the stalled car still refused to start. Rehse stopped the cars on the right-hand side of the road with the right wheels on the grass, as he claims. Headlights were lighted on both cars, but those on the rear car were dimmed. When the cars had been stopped, Rehse remained in the first car, and plaintiff walked toward the front of the Rehse car. He looked both ways, saw that no cars were coming, and then raised the hood, which opened from the side. He leaned over the fender, close up against it, with his left leg halfway up the fender and his right one on the ground. With his head underneath the hood and a flashlight in his left hand, he started to check the wires. While in that position an'd in less than a minute, he was struck by a 1939 Chevrolet coupé owned by defendant Cecil Lewis and operated by defendant Duane Lewis, a 19-year-old son of the former, and seriously injured. He did not see the Lewis car.

The highway from Granada to the scene of the accident is level, and it continues so northerly for another 800 to 1,000 feet or more, at which point there is a rise. Duane was on his way home, driving northerly on the right-hand side of the road. His car ha!d good brakes and good headlights. He said he was traveling at 25 to 30 miles an hour, but Rehse testified that he saw him approaching and that he was going 60 miles an hour. When about 60 feet from the trailer, Duane saw something dark ahead. It is undisputed that the trailer had neither light nor reflector on it. Duane said he could not stop before he got to tbe trailer, so he swung to tbe left toward tbe center of tbe road to go around it and put on bis brakes. He skidded with all four wheels 44 feet and passed tbe trailer on its left. After be bad passed tbe trailer, be swung sharply to tbe right, and, still skidding for an additional six feet, struck tbe Eebse car on its side near tbe front. Tbe impact, which crushed plaintiff’s leg and otherwise seriously injured him, pushed tbe Eebse car about four feet to tbe east. Duane did not see tbe rear light or headlight of tbe Eebse car, or, for that matter, tbe car itself, until be struck it. Nor did he see tbe lead car. When be turned to tbe right be thought be bad passed tbe dark object which be bad seen on tbe road.

At this same time, defendant Wayne Lutz, operating bis father’s (Louis Lutz’s) 1940 Buick, was approaching from the north. Duane claims that tbe undimmed lights from tbe Lutz car blinded him and contributed to cause tbe accident.

At the close of tbe testimony tbe court directed a verdict in favor of defendants Lutz, and tbe jury brought in a general verdict against tbe other defendants for $30,000.

We shall first consider tbe claims which Eebse raises on bis appeal. He contends, first, that tbe evidence shows that plaintiff was an independent contractor and fails to show any negligence on bis part which proximately caused or contributed to cause tbe accident; and, second, that tbe evidence shows contributory negligence on tbe part of plaintiff as a matter of law.

Tbe claim is made by plaintiff that Eebse parked his trailer on tbe highway without lights. Tbe trailer was not equipped with a rear light or reflector. Causing and permitting an unligbted trailer to be on tbe highway in tbe nighttime constitutes a violation of a statute of this state. Tbe trailer belonged to Eebse. He personally bad it pulled onto tbe highway and also parked it when bis automobile first stalled. He also personally parked it a few moments before tbe accident happened. Plaintiff bad nothing to do with tbe presence of tbe trailer on tbe highway and was not responsible for its lack of lighting equipment or its unligbted condition. In Scheppmann v. Swennes, 172 Minn. 493, 215 N. W. 861, tbe facts are similar to those of the instant case. Plaintiff in that case was present at the request of the owner of an unlighted car to assist in removing it. This court said (172 Minn. 496, 215 N. W. 862):

“* * * The disabled car was not plaintiff’s, and he was not responsible for its unlit condition. He was there at the request of the owner of the car to assist in removing it.”

And further (172 Minn. 495, 215 N. W. 862):

“* * * Before plaintiff came to the disabled car he of course was not chargeable with its condition.”

Behse contends that in the situation here plaintiff was an independent contractor. He first raised this point in his motion for a directed verdict at the close of the testimony. As stated, plaintiff operated an automobile repairshop. He was asked to start Behse’s stalled car. He was not asked to take possession of the car and tow it in. Behse was present all the time. He and plaintiff worked together to get it started, taking turns in towing the disabled car. Behse did not surrender the entire control of the car to plaintiff. All he asked plaintiff to do was to get the stalled car started. Both plaintiff and Behse agree that where the owner of an automobile turns it over for repair to a person not in his general employ and surrenders entire control to the repairman the owner is not liable for injury inflicted by the car while it is being operated by the latter, who is deemed to be an independent contractor. In the instant case, Behse did not surrender entire control of the car to plaintiff, the mechanic. On the facts here, plaintiff was not an independent contractor so as to insulate Behse from all liability for the lack of lighting equipment on the trailer.

In Guild v. Miller, 199 Minn. 141, 271 N. W. 332, the rear axle of a truck loaded with livestock broke, and the owner called a mechanic to install a new one. He was anxious to be on his way, as was Behse here. Both the owner and the mechanic worked together putting in the axle. Both were engaged in accomplishing the same purpose. The owner contended that the mechanic was an independent contractor and solely liable for the death of plaintiff’s intestate, who, while holding a lantern to assist them in the repair operations, was killed when the truck moved forward. The court said that the record did not sustain such a contention; that Miller, the owner, was rendering assistance to the mechanic at the time; and that he was present at all times, from the moment the axle broke to and including the time of the accident. So here.

It is obvious that Eehse was the law violator and therefore the negligent wrongdoer. The responsibility for the unlighted trailer was on him. If his negligence proximately caused or contributed to cause the accident he is liable. The jury found him negligent and his negligence a proximate cause of the accident. The evidence supports both findings. The claim of contributory negligence on the part of the plaintiff will be considered later.

Next we shall consider the contentions of defendants Lewis. They claim that the accident was caused by reason of the negligence of defendants Eehse and Wayne Lutz and the contributory negligence of plaintiff. They disclaim all negligence on the part of Duane Lewis. They also claim that the verdict was so irregular that it. must be held void.

Duane approached the trailer and the two cars from the rear. He claims that he was traveling 25 to 30 miles an hour. Eehse testified that he saw him approach, and he estimated his speed at 60 miles an hour. Duane did not see the trailer until he came within 60 feet of it. He immediately put on his brakes and turned toward the center of the road. His car skidded on all four wheels for a distance of 44 feet, then turned sharply to the right and skidded an additional six feet, when it struck the Eehse car and pushed it to the east about four feet. On such evidence we are of the opinion that the question whether Duane operated his car at a negligent rate of speed was for the jury.

Defendants Lewis claim that defendant Wayne Lutz, who was driving south and approaching the scene of the accident, failed to dim his lights as required by statute, and' that Duane Lewis was blinded by the bright lights of the Lutz car. They claim that the negligence of Wayne in failing to dim his lights was a contributing factor in causing this accident and that the trial court erred in directing a verdict in favor of defendants Lutz. Duane Lewis was the only witness who testified that Wayne Lutz failed in his statutory duty to dim his lights, and his testimony on this feature of the case was so unsatisfactory and contradictory and so thoroughly discredited that it would not support a verdict against the defendants Lutz if one were given. Accordingly, the court was fully justified in directing a verdict for the Lutzes. It would serve no useful purpose to recite in detail the evidence on this feature.

All the appealing defendants argue that plaintiff is guilty of contributory negligence as a matter of law. We have already stated that the failure to have the trailer equipped with lights or a reflector was not chargeable to plaintiff, but to Rehse. The cars and the trailer were parked where they were at the time of the accident by Rehse and not by plaintiff, and if the evidence should warrant a finding that the unobstructed space between the cars and the opposite side of the traveled portion of the roadway was less than that required by statute, such lack of space must be charged to Rehse and not to plaintiff. The cars were parked at the grass line. Plaintiff lifted up the hood of Rehse’s car. He looked both ways before he did so and then proceeded to check the wires to discover, if possible, the cause of the failure of the Rehse car to operate. It would take just a few moments to do so. Before he had finished his inspection he was struck and injured. It is claimed that he should have driven the cars into some farmer’s driveway before he proceeded to check the wires. Whether he was guilty of contributory negligence in this respect or in any other respects was a question for the jury. Contributory negligence depends on the facts of each case. We are of the opinion that the jury was justified in finding that plaintiff was not guilty of contributory negligence.

Defendants Lewis complain of the court’s refusal to instruct the jury as to the emergency rule. As the recited facts show, Duane Lewis safely passed the trailer on its left. He put on his brakes as soon as he saw it. Because of his speed, his car skidded on all four wheels for a distance of 50 feet before he struck plaintiff and the Rehse ear, which he admits he did not see. It has already been shown that the evidence fails to support the claimed negligence of defendant Wayne Lutz. Duane did choose the best and safest way in his attempt to escape and would undoubtedly have succeeded except for the speed at which he was traveling. If he had been going more slowly he would have avoided the accident. He was operating a skidding car because of his speed. We are of the opinion that the emergency rule is not applicable here.

The jury returned a general verdict for $30,000 against defendant Rehse and defendants Lewis. Accompanying the verdict was a writing as follows:

“The jury find for the plaintiff, and against the defendant, Frank Rehse, in the sum of $7,500.00.
“Against the defendants, Cecil Lewis and Duane Lewis, in the sum of $22,500.00.
“M. J. Helvig.”

The court accepted the general verdict and disregarded the accompanying writing. Defendants Lewis contend that the verdict was so irregular as to render it void and that it therefore should be set aside.

The jury, of course, had no jurisdiction to apportion the amount of the verdict among the defendants, as it attempted to do. The general verdict was in proper form, and no complaint is here made as to its amount. In Robyn v. White, 153 Minn. 76, 78, 189 N. W. 577, the jury brought in a verdict of $2,300 against two defendants. Appended to it was the following:

“We, the jurors recommend that the sum of twenty-three hundred ($2,300.00) dollars claimed to be recovered by this suit be donated to the American Red Cross.” (Signed by each juror.)

This court held that the recommendation by the jury did not vitiate the verdict. The court said (153 Minn. 79, 189 N. W. 578):

“* * * It would have been good practice to direct the jury to again retire and return a verdict unburdened with any such recommendation, but we cannot hold that this recommendation annuls the verdict. * * * Perhaps the recommendation aided in bringing about unanimity. It would seem that no juror could have been so ignorant of court proceedings as to believe that such recommendation could be enforced. But, however that may be, we think the better rule is that when there is a verdict clear and sufficient in all respects, such foreign and irrelevant matter may be rejected as harmless surplus-age. It is much the same in principle as a recommendation of clemency. This has never been held to vitiate a verdict.”

In Warren v. Westrup, 44 Minn. 237, 46 N. W. 347, 20 A. S. R. 578, an assault and battery case, the irregularity of a verdict was involved. The jury brought in the following verdict:

“We the jury in the above entitled action find for the plaintiff and against defendants Joseph Westrup $550 and Conrad Fink $150, and assess the plaintiff’s damages at the sum of total $700.”

Plaintiff thereupon dismissed the action as to defendant Fink. The trial court, on motion of defendant Westrup, set the verdict aside and granted a new trial. This court reversed and reinstated the verdict against Westrup.

In Atherton v. Crandlemire, 140 Me. 28, 33 A. (2d) 303, where the jury brought in a verdict of $800, and the verdict carried with it a statement of $400 each immediately following the assessment of damages, the court said (140 Me. 32, 33 A. [2d] 305):

“The jury undoubtedly undertook to apportion among the defendants what part of the verdict each of them, as between themselves, should pay. This amounted only to a recommendation. If it was intended as anything else, it is merely surplusage, and is to be rejected as irregular and void. The general verdict must stand.”

In Lake Erie and Western R. Co. v. Halleck, 78 Ind. App. 495, 499, 136 N. E. 39, 40, the verdict read:

“We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $800, Lake Erie and Western R. Co. $700, John Jordan $100.”

The court held1 that the part apportioning the amount of the verdict was surplusage and did not vitiate the general verdict.

In Pennsylvania R. Co. v. Logansport L. & T. Co. (7 Cir.) 29 F. (2d) 1, 3, where the jury made an apportionment, the court said:

“* * * This apportionment was unwarranted and may he treated as surplusage.”

To the same effect, see Emblem Oil Co. v. Taylor, 118 Pa. Super. 259, 179 A. 773; George B. Scrambling Co. v. Tennant Drug Co. 25 Ohio App. 197, 158 N. E. 282; Hall v. McClure, 112 Kan. 752, 212 P. 875, 30 A. L. R. 782; Dextone Co. v. Building Trades Council (2 Cir.) 60 F. (2d) 47.

We repeat what we said in Robyn v. White, 153 Minn. 79, 189 N. W. 578, supra,:

“* * * It would have been good practice to direct the jury to again retire and return a verdict unburdened with any such recommendation, * *

See, also, Begin v. Liederbach Bus Co. Inc. 167 Minn. 84, 208 N. W. 546.

In 52 Am. Jur., Torts, § 124, it is said:

“* * * In a number of jurisdictions, where the verdict fixes the amount of the plaintiff’s recovery at a certain sum, but attempts in addition to apportion the liability therefor among the several defendants by directing the amount each shall pay, the plan is adopted of returning the verdict to the jury for correction in accordance with instructions that they can find one sum only, and that jointly against all the defendants found liable. Indeed, the apportionment in the verdict has been regarded an essential part thereof, which cannot be taken as surplusage, so that a judgment may not be rendered thereon against the defendants jointly. The numerical weight of authority, however, is to the contrary, and the trial court is held entitled to treat all the matter after the finding of joint liability as surplusage.”

We are of the opinion that the attempted apportionment by the jury was mere surplusage and did not vitiate the general verdict.

Orders affirmed.

Mr. Justice Frank T. Gallagher took no part in the consideration or decision of this case.  