The opinion of the court was delivered by: WEBER
Plaintiff Charles R. Warren, a minor, by Thelma S. Warren, his natural guardian and next of kin, and Thelma S. Warren in her own right, bring this diversity negligence action against defendant to recover for minor plaintiff's extensive injuries incurred when the defendant's truck in which plaintiff was a passenger and which was driven by plaintiff's father, Ralph Warren, on defendant's business, left the road, struck two trees, killing the father and injuring plaintiff.
The case was tried before a jury and the jury after deliberation arrived at a verdict which we believe cannot stand.
The jury awarded the precise amount of the proven medical bills to the mother-plaintiff, and specifically denied any recovery to the minor plaintiff for pain and suffering to which he was clearly entitled if the defendant was liable. The jury returned this verdict after specific additional instructions were requested and given on this very point. The jury were told that they could not award any damages without finding liability, but that if liability was found they must consider the substantial and uncontradicted evidence of minor plaintiff's physical injury, pain and suffering. These were not subjective symptoms - two fractured legs, hospitalization and surgery were involved, plus a long period of convalescence.
We suspect that the jury's verdict was influenced by sympathy for the widowed mother of the minor, and a desire to recompense her for her medical expenses, rather than a finding of liability under the law as stated in the charge of the court.
The question of liability involved minor plaintiff's status on the truck at the time of the accident.
Defendant now moves for a Judgment Notwithstanding the Verdict asserting that plaintiff's evidence produced at trial was not sufficient for a jury to find that Ralph Warren had implied authority to permit Charles R. Warren to ride in his truck or that Charles' presence was in furtherance of the business of Midwest Emery. That is, as to defendant, was plaintiff a mere trespasser or had he, through the implied consent of defendant, become a licensee thereby being entitled to protection from acts of negligence of defendant's employees.
Plaintiff's theory of liability rests on the following evidence which for purposes of defendant's motion we must accept in a light most favorable to plaintiff. The following evidence was presented by plaintiff to prove implied consent and actions in furtherance of defendant's business:
1. Charles had accompanied his father on several trips to Rochester, New York, in the summer of 1965 and 1966.
2. Charles had accompanied his father on a trip to Rochester, New York, in December 1966, a week before the accident.
3. On each trip to Rochester, New York, Charles helped his father unload the truck at various stops in Rochester.
5. On trips to Rochester in 1966 when Charles accompanied his father and helped to unload no "city man" was assigned to the driver.
6. On every trip to Rochester in which Charles accompanied the driver, the truck would stop after completing its deliveries at a terminal identified as defendant's terminal by the presence of defendant's trucks, an employee in an overall with defendant's identifying label, and defendant's name on a sign in the office. At this office was an employee who collected the driver's shipping invoices and who gave orders for the further use of the truck. On one occasion at this office Charles was introduced to this "dispatcher" as the son of the driver and also Charles ...