Owen v. Burcham

• Decision Date: 13 September 1979
• Docket Number: No. 12846,12846
• Citation: 100 Idaho 441,599 P.2d 1012
• Parties: Ronald D. OWEN and Elizabeth F. Owen, husband and wife, Plaintiffs-Respondents, v. Susan Keller BURCHAM and Roy Burcham, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1012

599 P.2d 1012

100 Idaho 441

Ronald D. OWEN and Elizabeth F. Owen, husband and wife, Plaintiffs-Respondents, v. Susan Keller BURCHAM and Roy Burcham, Defendants-Appellants.

No. 12846.

Supreme Court of Idaho.

Sept. 13, 1979.

Jeremiah A. Quane of Quane, Smith, Howard & Hull, Boise, for defendants-appellants.

John C. Hepworth of Hepworth, Nungester & Felton, Buhl, for plaintiffs-respondents.

SHEPARD, Justice.

This is an appeal from a judgment in favor of plaintiffs-respondents for the wrongful death of their son resulting from a motor vehicle-bicycle accident. We affirm. Defendants-appellants first assign error to the refusal of the trial court to give certain requested instructions. The substance of the defendants' proposed instructions was adequately covered elsewhere and, hence, the trial court did not err in refusing defendants' proposed instructions. E. g., Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972).

Appellants' next assignment of error relates to the trial court's allowance of voir dire examination of jurors respecting the subject of insurance. Our examination of the record reveals that counsel for plaintiffs did repeatedly inquire of any jurors' relationship with casualty insurance companies. The scope of voir dire examination of jurors as to their qualifications is a matter lying within the sound discretion of the trial court. Towne v. Northwestern Mut. Life Ins. Co., 58 Idaho 83, 70 P.2d 364 (1937); G. Bell, Handbook on Evidence for the Idaho Lawyer 9 (2d ed. 1972). Here, prospective jurors were asked in substance whether he or she, or any member of his or her family, was employed by or owned stock in a casualty company. We have held that such inquiry is permissible if made in good faith with the intent to expose bias and not for the purpose of informing the jury about the existence of the defendant's insurance. Byington v. Horton, 61 Idaho 389, 102 P.2d 652 (1940); Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279 (1938). The record does not reveal any indication of bad faith on the part of plaintiffs' counsel and, hence, we find no prejudicial error.

Appellants next assign error to the ruling of the trial court at the time the defendants-appellants offered as evidence a report prepared by one Officer Sweesy of his investigation of the accident. Sweesy was present and testified at trial and counsel for defendants-appellants was granted great leeway in using Sweesy's official accident report to refresh Sweesy's recollection. However, the trial court denied admission of Sweesy's official report pursuant to I.C. § 49-1511. That statute is part of the motor vehicle safety responsibility act and provides:

"49-1511. Matters not to be evidenced in civil suits. Neither the report required by section 49-1504, Idaho Code, the action taken by the director pursuant to this act, the findings, if any, of the director upon which such action is based, nor the security filed as provided in this act shall be referred to in any way, nor be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages."

Defendants-appellants rely exclusively upon Bell v. O'Connor Transp. Ltd., 94 Idaho 406, 489 P.2d 439 (1971), which held that a police officer's investigative accident report was admissible into evidence under I.C. § 9-316 as an official report made within the scope of the official duties of an officer of the State. We note that the court in Bell v. O'Connor Transp. Ltd., supra, inexplicably failed to consider the impact of I.C. § 49-1511, and, therefore, we are required herein to analyze the conflict between the two said statutes. I.C. § 9-316 was enacted by our legislature in 1939, whereas I.C. § 49-1511 was enacted in 1947, and amended as late as 1974. As a general rule, to the extent an earlier expression of the legislature is contradicted by a subsequent one, the latest expression of the legislative will should control. See Employment Security Agency v. Joint Class "A" School Dist. No. 151, 88 Idaho 384, 400 P.2d 377 (1965). In construing these statutes, we note, also, that I.C. § 9-316 appears to be a statute general in nature, while I.C. § 49-1511 relates specifically to investigative reports filed as a result of motor vehicle accidents. In such circumstances, where both a general statute and a special or specific statute deal with the same subject matter, the provisions of the special or specific statute will control those of the general statute. Hook v. Horner, 95 Idaho 657, 517 P.2d 554 (1973); State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962).

We conclude, therefore, that the intent of our legislature in the enactment of I.C. § 49-1511 was to restrict the utilization of reports of investigating officers following motor vehicle accidents. While the report of an investigating officer may contain valuable information regarding the physical evidence observed by the officer at the scene, it may also contain extensive hearsay from non-party witnesses, conclusions and speculations of the officer, criminal charges made which may or may not have been sustained. The report may also contain other materials that may be unreliable, inadmissible, or, at best, hearsay not susceptible to the fire of cross-examination. Hence, to the extent that Bell authorized the actual admission of an accident report as substantive evidence, it is overruled. Bell also stated, however, that an accident report "may be used by the officer to refresh his recollection." Bell v. O'Connor Transp. Ltd., 94 Idaho at 408, 489 P.2d at 441. And we find that rule to be salutary in its effect.

The admissibility or inadmissibility of a document does not affect its availability for use in refreshing a witness' memory. See Prudential Ins. Co. of America v. Folsom, 48 Idaho 538, 283 P. 609 (1929); G. Bell, Handbook of Evidence for the Idaho Lawyer 32 (2d ed. 1972). Ordinarily, memoranda for refreshing memory do not constitute independent evidence, but only aids in the giving of evidence. McCormick on Evidence § 9 (2d ed. 1972). We see no public policy to be served by depriving law enforcement officers of the opportunity of refreshing their memory in the recollection of events that occurred some substantial period of time prior to their appearance at trial. We conclude, therefore, that the trial court properly denied admission of the accident report as substantive evidence, while nevertheless permitting its utilization to refresh the memory of the investigative officer.

We turn now to the subject matter of defendants-appellants' principal assertions of error, I. e., the trial court's holding at the close of the evidence that the deceased, Randall Owen, was not negligent in respect to his death; the ruling of the trial judge following the jury verdict that he had erred in submitting the issue of the plaintiff-parents' negligence to the jury; and the granting of the motion of the plaintiffs for a judgment notwithstanding the verdict as to the negligence of the plaintiff-parents.

The assignment of error relating to the nonnegligence of the decedent requires an extended review of the facts. At approximately 6:00 p. m., Friday, April 2, 1976, plaintiff-respondent Elizabeth Owen granted her son Randall Owen permission to ride his bicycle along a county road, commonly known as the Castleford Road. His destination was a home two miles distant, where he hoped to sell some Cub Scout tickets. Randall Owen was then eight years and eleven months old. He was told to return home by 7:00 p. m. Mr. and Mrs. Owen had instructed their son Randall to obey the rules of the road in operating his bicycle and he originally was restricted to the block surrounding his home in Castleford. Later, beginning early 1976, if he first sought and obtained permission from either of his parents, he was allowed to ride elsewhere.

At certain times of the year, Castleford Road was used by trucks involved in farming operations. The Owens did not permit their son to ride his bicycle on that road during the fall harvest because of the high density of truck traffic. Since this was spring, however, and the traffic was light to moderate, Randall was given permission to ride along Castleford Road to his destination. Many boys bicycled along that road and it was not unusual to see them there.

Castleford Road runs directly east-west and is some 25 feet wide from pavement edge to pavement edge, and has no marked centerline. On the north edge or righthand side of Castleford Road as one travels west, there existed what was described by various witnesses as a ridge, a groove, a seam, a depression or a ledge located approximately two and one-half feet from the edge of the pavement. That groove of, at most, one-half inch, was apparently a result of the widening of the road in 1974. Approximately one mile from the edge of the city of Castleford, a north-south road intersects Castleford Road. The above noted groove apparently did not exist east of this intersection. The testimony is in conflict as to its existence and degree of continuity west of the intersection.

Defendants-appellants, Roy and Susan Burcham, were school teachers in the city of Castleford. Some time after 6:00 p. m., Mr. Burcham, who was at the Castleford school, called his wife and asked her to come into town to pick him up. Mrs. Burcham traveled east on Castleford Road toward town and she noticed Randall Owen, the decedent, riding his bicycle westward on the opposite side of the road. According to her testimony, Randall Owen appeared to be operating his bicycle carefully and properly. Mrs. Burcham reached Castleford, picked up her husband, turned around and headed home in a westerly direction on Castleford Road. The sun was setting in the west on the edge of the horizon directly at the end of Castleford Road and it impaired the vision of vehicle operators traveling westerly. Mrs. Burcham testified that the sun was shining directly in her eyes; that she was...