Bartholomay v. St. Thomas Lumber Company

148 N.W.2d 278, 1966 N.D. LEXIS 150
CourtNorth Dakota Supreme Court
DecidedDecember 19, 1966
DocketCiv. 8245
StatusPublished
Cited by32 cases

This text of 148 N.W.2d 278 (Bartholomay v. St. Thomas Lumber Company) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278, 1966 N.D. LEXIS 150 (N.D. 1966).

Opinions

STRUTZ, Judge.

(On reassignment).

The plaintiff, Gordon Bartholomay, brings this action for himself and for his two minor children for the wrongful death of his wife, Diane, the mother of said children. The action was brought under the provisions of Section 32-21-03, North Dakota Century Code, which provides for the bringing of an action for wrongful death. He also brings an action as next friend of the two minor children for personal injuries which his children suffered in the accident.

The record discloses that the plaintiff was a graduating senior in accounting at the University of North Dakota. His wife, a college graduate, had just completed the school year as a teacher in the Grand Forks, school system. The defendant Quam resided at St. Thomas, North Dakota, and' was employed by the defendant St. Thomas Lumber Company of that city.

On July 14, 1961, the defendant Quam, on business for his employer, left St. Thomas at about ten o’clock in the forenoon with a two-ton International truck, intending to drive to Fargo. With him was one Robert Sturlaugson. When they reached Grafton, Sturlaugson purchased a six-pack of beer, and each of them consumed three bottles while driving from Grafton to Grand Forks. They then stopped at the Bronze Boot in Grand Forks, where Quam admits consuming one vodka sour before they ate dinner. After dinner, they each consumed two more vodka sours in a matter of fifteen to twenty minutes. Sturlaugson then purchased another six-pack of beer which they took with them into the truck. The defendant admits that he had consumed another 1½ bottles of this six-pack as they drove along the highway prior to the happening of the accident.

The plaintiff and his family left Grand Forks about noon. His wife was sitting on the right side of the front seat, holding their 22-month-old daughter on her lap. The record also shows that the wife was eight months pregnant with child. The three-year-old son was riding in the back seat.

When the plaintiff reached a point on the highway about 2½ miles north of Grandin, he saw the defendant’s truck stop on an approach on the west, or right, side of the highway. As they neared this truck, it suddenly and abruptly was backed onto the highway, and then was driven in a southerly direction toward Fargo. [283]*283The plaintiff passed the truck and then, because it was raining, he slowed to about forty miles an hour. Another car, also proceeding in a southerly direction, was about one block ahead of the plaintiff. There also was some oncoming traffic some distance to the south.

Just before the accident occurred, the plaintiff looked into his rear-view mirror and saw the defendant’s truck rapidly approaching from the rear. To warn the driver behind him that he was going to slow down some more, the plaintiff tapped his foot on the brake pedal so that his brake lights would give such warning. He again looked into the rear-view mirror and saw the truck very near. He testified:

“That truck was sliding towards me, and that is all I recall.”

The defendant Quam admitted that he was driving, drinking, and visiting as he proceeded in a southerly direction, right up to the time of the accident. As he turned his attention from his passenger on one occasion, he suddenly realized that he was closing in on the car ahead of him very fast. He knew that if he didn’t do something, he would collide with the rear of that car. There were oncoming vehicles in the northbound lane which prevented him from passing to the left of the plaintiff’s car, so he swung his truck toward the right ditch. The truck went into a clockwise skid in the southbound lane and, while thus skidding out of control, the defendant lost sight of the plaintiff’s car. He did not, however, feel any impact with the plaintiff’s car.

■The defendant’s passenger testified that, as they were traveling in a southerly direction, visiting, he first saw the tail light of the plaintiff’s car when it was ■only fifty to seventy-five feet in front of them, and the defendant’s truck was •skidding and out of control. He did not feel or hear any impact, either.

The record also shows that, as the defendant’s truck closed the gap between it and the plaintiff’s car, the plaintiff’s vehicle suddenly came out of the southbound lane and went squarely across the northbound lane “just like it was shot out of there.” As it came into the northbound lane, it was squarely across the lane of travel and about ten feet in front óf a. northbound truck driven by a Mr. Williams, who struck the plaintiff’s vehicle broadside. This northbound truck at no time hit the rear of the plaintiff’s car. Another car which was following the northbound truck then hit the rear of the Williams truck, but did not strike the plaintiff’s car.

The record further shows that the sheriff, who aided in the investigation of the accident, examined the left rear outside dual on the defendant’s truck and found a flattened portion four inches in length.. On that flattened portion he found some gold, silver, and chrome material. This area of the rim was found to be cleaner that the balance of the rim. He also examined the plaintiff’s rear bumper and there found a dent in the bumper. The area of this dent had no road oil or dirt on it, compared with the balance of the bumper. He also found glass or plastic material in the right rear tail light of the plaintiff’s car, similar to the material found in the left rear dual of the defendant’s truck.

The sheriff also testified that, in a conversation with the defendant Quam in the sheriff’s office on the evening of the accident, he asked the defendant if he had struck the plaintiff’s car and was told:

“I don’t think I struck the Bartholomay car but I could have possibly.”

One of the highway patrolmen who helped in the investigation testified that, about forty feet north of the gouge in the highway where the impact between plaintiff’s car and the northbound truck had occurred and in the west, or southbound, lane of the highway, he found four pieces of red plastic which matched the plastic tail light lens of the right rear tail light on the plaintiff’s automobile which had been broken. This witness also testified [284]*284that he noticed a strong odor of alcohol in the defendant’s cab, smelled alcohol on the defendant’s breath, and that the defendant’s eyes appeared to be glassy, and that from his appearance the witness believed the defendant was under the influence of intoxicating beverages. A second patrolman, Wright, who also assisted in the investigation, stated that he found the defendant’s face flushed and his eyes glassy, and that he had a strong odor of alcohol and was definitely under the influence. He also stated that the dent in the plaintiff’s right bumper was immediately below the broken red plastic tail light.

The record further shows that a blood test for alcohol was taken of the defendant Quam’s blood some two hours after the accident, and that such test disclosed that the defendant’s blood, at the time of the test, had an alcoholic content of ten hundredths of one per cent by weight.

The wife of the plaintiff, mother of the two minor children, Vickie and Jeffrey, was killed in the accident. The jury, in the trial for damages for such wrongful death, returned a verdict for the minor children for the wrongful death of their mother, but failed to return any verdict for the husband for the wrongful death of his wife.

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Bluebook (online)
148 N.W.2d 278, 1966 N.D. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartholomay-v-st-thomas-lumber-company-nd-1966.