Adams v. Misener
| Decision Date | 09 October 1942 |
| Docket Number | 8309. |
| Citation | 131 P.2d 472,113 Mont. 559 |
| Parties | ADAMS v. MISENER. |
| Court | Montana Supreme Court |
Rehearing Denied Dec. 12, 1942.
Appeal from District Court, Seventeenth District, Phillips County John Hurly, Judge.
Action by Steve J. Adams against R. P. Misener for injuries to person and property. Upon death of the plaintiff, Marjorie C Adams, as administratrix of the estate of Steve J. Adams deceased, was substituted as plaintiff. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Fred C Gabriel, of Malta, and Speer & Hoffman, of Great Falls, for appellant.
Burns & Thomas, of Chinook, and Karl F. Frisbie, of Havre, for respondent.
Action in damages for injuries to person and property. November 4, 1939, Steve J. Adams, a man 64 years of age, resident of Havre, a dealer in coal, hay and similar products which he delivered at various points in Havre and east and west of there along the Great Northern Railway line, after delivering a load of coal at Dodson, Montana, picked up a return load of hay at the Bryan Stevens ranch some five miles west of the town of Dodson, and drove to the Roosevelt highway, which passed through the Stevens ranch, and turned west toward Havre. In addition to 42 bales of hay, Adams' truckload consisted of several bags of grain and a calf. He had not proceeded far on his way to Havre when an oil truck, with trailer attached, passed him, and it is alleged by plaintiff that just after passing the Adams truck the oil truck "pulled in short" in front of Adams and forced him off the highway, causing his truck to go into the ditch and turn over several times, scattering the load over the ground and seriously injuring Adams. The oil truck proceeded on its way to Havre, and, according to the testimony of two of the occupants of the oil truck they were not aware that an accident had occurred until arriving at Havre.
The accident occurred about five o'clock p. m. Adams was rendered unconscious and was taken to Dodson where first aid was administered, and upon advice of the accident reaching his family at Havre, his daughter and her husband drove to Dodson and took him to Havre, where he was confined at the daughter's home for a short time and then taken to a hospital. It appears that he was not in robust health prior to the accident, but after the accident he was not physically able to conduct his usual business operations and died on September 9, 1940.
Counsel for plaintiff in his argument before this court stated that it was not contended that Adams' death was due to the accident. Prior to his death he had commenced this action, and after his death his wife, as administratrix of his estate, was substituted as plaintiff.
The complaint alleges reckless and negligent driving of the defendant's truck in that, in passing the plaintiff, the defendant crowded the plaintiff's truck off the highway which resulted in Adams' injuries and the damage to his truck and other property. Recovery is sought for both personal and property damage, for hospitalization and medical services. The answer was a general denial. When the cause was set for trial, defendant moved the court, supported by the affidavit of H. B. Hoffman, of counsel, for an order vacating the setting of the cause and requesting that it be reset at the following term. The affidavit was to the effect that Charles Allingham, the driver of the defendant's truck, a co-defendant in the action and a material witness, could not be present at the trial on the date set on account of serious illness, and the attending physician would not permit the taking of his deposition. This affidavit was supported by a further affidavit of the physician. The motion to vacate was argued July 8, 1941. The plaintiff resisted the motion but offered to stipulate that the action might be dismissed as to Allingham, and further offered to stipulate that Allingham would testify, if present, to the facts as set forth in the affidavit of attorney Hoffman. The court denied the motion to vacate.
The cause came on for hearing July 10, 1940, before the court sitting with a jury. Numerous witnesses testified for both sides; arguments were heard and the jury was duly instructed by the court. A verdict was returned for the plaintiff, allowing a recovery in the amount of $4,188. This amount was made up of the following items: $3,500 was allowed as general damages; $490 for loss of earnings, and $198 for damages to plaintiff's truck. The court allowed costs in the sum of $198.58, making a total award of $4,386.58, with interest thereon at six per cent. per annum. A motion for a new trial was made, heard and denied. Thereupon the defendant appealed.
Two specifications of error are assigned; the first is on the court's overruling defendant's motion to vacate the setting of the cause and the resultant loss to the defendant of Allingham's testimony. Defendant alleges abuse of discretion by the court in denying his motion to vacate the setting of the cause. The record shows that "counsel for plaintiff in his argument opposing the motion to vacate offered to stipulate that the action might be dismissed as to the defendant, Charles Allingham, and further offered to stipulate that Charles Allingham would testify as set forth in the affidavit of H. B. Hoffman, and that same might be read to the jury, subject to any legal objections."
In the argument counsel for plaintiff contends, and we think the contention is sustained by the record, that the facts that the affidavit of counsel stated Allingham would testify to were supplied in all material respects by other witnesses who testified for the defendant, and, therefore, Allingham's testimony would merely have been cumulative.
It was further contended by plaintiff that the trial had been unduly delayed, the complaint having been filed in January, 1940, and no jury term having been held in the county until July, 1941, practically eighteen months later, that a further delay would be detrimental to the interests of the plaintiff. The legal questions involved in this assignment are fully covered by section 9332, Revised Codes, which provides:
The requirements of the section were substantially complied with by the plaintiff in opposing the motion to vacate the setting, and there was no abuse of discretion by the court in denying the motion, which in effect was a request for postponement. State v. Kuilman, 111 Mont. 459, 110 P.2d 969; Orem v. Hansen Packing Co., 91 Mont. 222, 7 P.2d 546; Ward v. Strowd, 76 Mont. 93, 244 P. 1007; Hunt v. Van, 61 Mont. 395, 202 P. 573; Downs v. Cassidy, 47 Mont. 471, 133 P. 106.
The second specification of error is on the alleged misconduct of plaintiff and her counsel in bringing attention to the jury of the fact that defendant carried liability insurance, and certain other charges of misconduct as will appear from the assignment. For the reasons that will presently appear, we quote this assignment in full from the brief of defendant:
"Misconduct of the plaintiff and of her counsel in bringing to the jury's attention that any damages awarded would have to be paid by the defendant, Misener's insurance company; said error appears in:
(a) The questions by plaintiff's counsel and her answers during the trial to the jury, duly excepted to, to-wit:
Q. Did he [Mr. Adams] get out at all during the winter? A. No, he did not. He never left the house.
Q. About how long was he confined to the home? A. Well, I imagine until about the first of May.
Q. Now, then, Mrs. Adams you said he did not get out of the house at all, but as a matter of fact, he was taken up to Dr. Larson's office, was he not? A. Yes.
Q. Do you recall another time that Dr. McKenzie examined him? A. Yes, the insurance company for Mr. Misener sent to have their doctor--
Mr. Burns: Just a minute, may that be stricken as not responsive?
By the Court: Yes, the jury will disregard that testimony entirely. When a volunteer statement is made by a witness, counsel may ask that it be stricken, and, if it is ordered by the Court to be stricken, then you shall disregard it, and not consider it as evidence in this case. The last statement of the witness is a volunteer statement, and you will disregard it.
Mr. Hoffman: Note an exception.
(b) The closing argument to the jury by plaintiff's counsel in substance and effect that Mr. Misener himself would not pay the damages for injuries sustained, evidence by counsel's argument to the jury:
Why didn't Mr. Misener tell Steve Adams who he was that evening on the road, if he saw him as he says he did? I do not know whether he had seen Mr. Hoffman about the accident or not at that time, or whether he just figured that Mr. Hoffman would take care of him anyway.
(c) Careless or inopportune remarks made by plaintiff's counsel outside the court room door in the corridor in the presence of others who may have been in the jury panel, in substance and effect that the 'Insurance Company' should settle this case so we can go home and forget about it, suggesting, if not the amount that counsel thought the insurance company should pay and that the plaintiff wanted, at least culpability in refusal to meet its obligation."
Both the defendant and...
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