Annau v. Schutte, 11636

Citation96 Idaho 704,535 P.2d 1095
Decision Date20 May 1975
Docket NumberNo. 11636,11636
PartiesThomas B. ANNAU and Janet Annau, divorced individuals, Plaintiffs-Appellants, v. Everett SCHUTTE and Trans-Pac Leasing Inc., an Oregon Corporation, Defendants-Respondents.
CourtUnited States State Supreme Court of Idaho

Paul M. Beeks of Kramer, Smith & Beeks, Twin Falls, for plaintiffs-appellants.

Jeremiah A. Quane of Quane, Kennedy & Smith, Boise, and Dusenberry, Martin, Bischoff & Templeton, Portland, Or., for defendants-respondents.

McFADDEN, Justice.

Following the crash of a private airplane piloted by defendant-respondent Everett Schutte, the plaintiffs-appellants, Thomas B. and Janet Annau, individually (having been divorced prior to bringing this action) instituted this action seeking damages for their injuries, medical expenses and loss of earnings. The action was brought against both Schutte, the pilot and lessee of the airplane, and Trans-Pac Leasing, Inc., an Oregon corporation, the owner and lessor of the airplane. The appellants alleged negligence on the part of the pilot, Schutte, and also negligence on the part of the owner-lessor, Trans-Pac Leasing, Inc., and sought recovery from both of them.

The case was tried to a jury which returned its special verdict 1 in the form of answers to interrogatories in favor of the respondents and judgment was entered in accordance with the verdict. The appellants moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The motion was denied, and the appellants took this appeal from the judgment and from the denial of their motion for judgment notwithstanding the verdict, or for new trial.

By their assignments of error, the appellants challenge the trial court's ruling denying their motion for judgment notwithstanding the verdict, and in denying their alternative motion for new trial. They also assert the trial court erred in concluding that there was competent evidence from which a jury could conclude that the defendants were not negligent, or if they were negligent, such negligence was not a proximate cause of the appellants' injuries. Appellants also contend that the special verdict was contrary to the great weight of the evidence and contrary to law. Appellants also assign error by the trial court in refusing to instruct the jury in accordance with their requested instruction no. 31, in failing to instruct the jury until after closing arguments, and in failing to require the official court reporter to report the closing arguments of counsel to the jury.

Before discussing the specific assignments of error, a brief summary of the facts brought out at trial will give proper perspective to these assignments of error.

About 1:30 a. m., on April 1, 1973, in Twin Falls County near Rogerson, a Piper Cherokee airplane, piloted by Everett Schutte, crashed. In the crash Tom Annau and Janet Annau, the plaintiffs-appellants, were injured, and one Gerald Hill sustained fatal injuries. The single engine plane was leased to Schutte by Trans-Pac Leasing, Inc. On this flight the plane was leaving Jackpot Nevada, enroute to Boise. At the time of the accident, Schutte held a current private pilot's license which allowed him to fly in VFR (Visual Flight Rules) weather conditions, that is, to fly by visual reference to the horizon and other reference points outside the plane. Schutte did not hold an instrument rating, nor did he have a significant amount of instrument flight instruction. Schutte held a current third class medical certificate which required him to wear corrective lenses while operating the aircraft. On this occasion, Schutte was not wearing his glasses. Schutte also had not made five takeoffs and landings during nighttime within 90 days of this flight, contrary to Federal Air Regulations, Part 1, Sec. 61.47.

Within one hour prior to takeoff, Schutte placed two phone calls to the Burley Flight Service to inquire as to the weather conditions. He was advised that VFR weather conditions existed at Boise and Burley. The record indicates that it had been snowing in Jackpot earlier that evening, but that at the time of take-off it was not snowing and that some stars were visible.

After performing customary pre-flight inspections, Schutte, piloting the plane, took off with the Annaus and Hill as passengers. The take-off was normal, in a northerly direction towards Idaho. A normal rate of climb for the plane was established by the pilot. About four minutes out of the Jackpot airport, Schutte noticed that the plane was in a snow storm. He testified that he flew into the storm about two more minutes and then decided to make a 180 turn so that he could return to the Jackpot airport. He also testified that snow was accumulating on the airplane and that the airspeed indicator indicated a declining airspeed, and the altimeter showed loss of altitude. Using a standard procedure, Schutte made a 180 turn. Schutte testified that after the turn was completed, the air speed and altitude continued to decline, and that the plane became unstable, and that, anticipating a crash landing, he reduced power. The plane then crashed and overturned.

In their alternative motion for judgment notwithstanding the verdict, or for new trial (I.R.C.P. 50(b)), the appellants set out some six items pointing to the insufficiency of the evidence to justify the jury's verdict. And they also contend that the verdict rendered was contrary to applicable law in some four instances. A motion for judgment notwithstanding the verdict admits the truth of the adverse evidence and every inference that may be legitimately drawn therefrom. Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Barlow v. Int'l Harvestor Co., 95 Idaho 881, 522 P.2d 1102 (1974). The evidence must be viewed in the light most favorable to the non-moving party. Johnson v. Stanger, 95 Idaho 408, 510 P.2d 303 (1973). A motion for judgment notwithstanding the verdict should not be granted where there is substantial competent evidence to support the verdict of the jury. Mann v. Safeway Stores, Inc., supra; Barlow v. Int'l Harvestor Co., supra.

Without detailing the specific grounds set out in their 50(b) motion, wherein appellants claim the evidence was insufficient, suffice it to say that the court has examined each of these contentions, and, viewing the record most favorably for respondents in this instance, we find that at best there is a conflict in the testimony between the appellants' witnesses and respondents' witnesses. Particularly, support for the verdict is to be found in the testimony of one of respondents' witnesses, an airplane pilot of extensive experience and unquestioned qualifications. Under this situation, the trial court did not err in denying the 50(b) motion on the basis of insufficiency of the evidence. Nor did the trial court err in denying the motion on the basis of the assertion that the verdict was contrary to applicable law. In this regard, appellants point to certain F.A.A. regulations and contend the record reflects violations of these regulations. Nevertheless, the jury, under the facts of this case, could easily have determined that the violations of the specific regulations were not a proximate cause of the accident. Generally, issues of negligence and proximate cause are questions for the jury unless the proof is so clear that different minds cannot reasonably draw different conclusions or where all reasonable minds would construe the facts and circumstances of the case in only one way. Anderson v. Blackfoot Livestock Co., 85 Idaho 64, 375 P.2d 704 (1962); Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965); Johnson v. Stanger, supra.

In this case the question of proximate cause was a question of fact, and from the record it appears that the jury could reasonably have determined that none of the claimed violations of F.A.A. regulations proximately caused this accident. We find no error by the trial court in denying appellants' motion for judgment notwithstanding the verdict.

As an additional ground for their 50(b) motion, the appellants contend that counsel for the respondents, by certain remarks in his final argument to the jury, impassioned the jury to the appellant's prejudice. These remarks were set forth in an affidavit submitted by appellant's counsel.

There is nothing in the record before this court which indicates that the appellants made a timely objection to these remarks. 2 Inasmuch as the trial judge has the primary opportunity to cure the impact of errors in counsel's remarks, it is counsel's duty to make timely objection to such remarks. Kerby v. Oregon Short Line R. R. Co., 45 Idaho 636, 264 P. 377 (1928). Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279 (1938). Accord, Stewart v. City of Idaho Falls, 61 Idaho 471, 103 P.2d 697 (1940).

This court stated, in Shaddy v. Daley, supra,

'The record does not disclose what objection, if any, was made to that statement by respondents' counsel, nor what ruling, if any, was made on that objection. If, during the course of a trial, counsel for one of the parties litigant is guilty of conduct which counsel for the other party believes is prejudicial to his client's rights, it is the duty of the latter to make objection thereto, and to ask that the jury be instructed to disregard it, or to move for an order declaring a mistrial. A litigant is not permitted to remain silent under such circumstances with a view to accepting the benefits of a judgment if he wins and of having it vacated and set aside if he loses. (citations omitted).' 58 Idaho at 540, 76 P.2d at 281.

In ruling on a motion for a new trial, the trial court has broad discretion, and an order granting or denying a motion for a new trial will not be disturbed absent manifest abuse of discretion. Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969); Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973); Messmer v. Ker, 96 Idaho 75, 524 P.2d 536 (1974). The record discloses that the facts in this...

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