Atkins v. Stratmeyer

Citation600 N.W.2d 891,1999 SD 131
Decision Date29 September 1999
Docket Number No. 20677, No. 20694.
PartiesBrad ATKINS and Lori Atkins, Plaintiffs and Appellees, v. Robert STRATMEYER and Marilyn Stratmeyer, Defendants and Appellants.
CourtSupreme Court of South Dakota

Thomas J. Johnson, Sioux Falls, Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, for plaintiffs and appellees.

William P. Fuller and Melanie Carpenter of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, for defendants and appellants.

DOBBERPUHL, Circuit Judge.

[¶ 1.] This is an appeal from a jury verdict in favor of Brad and Lori Atkins (Atkins) stemming from an automobile accident in which Brad Atkins struck three horses belonging to Robert and Marilyn Stratmeyer (Stratmeyers). The jury found Stratmeyers negligent in not preventing their horses from being on the road and granted Atkins a monetary award for injuries and damages sustained in the collision. Stratmeyers appealed and Atkins filed a notice of review. We affirm in part and reverse and remand for award of costs.

FACTS

[¶ 2.] Brad Atkins was driving to work around 3:10 a.m. on November 23, 1994, on South Dakota State Highway 17 near Lennox, South Dakota. He collided with three horses which were on the road and belonged to Stratmeyers. Atkins' vehicle rolled into the ditch and he sustained physical injuries. Atkins' total damages, including medical, lost wages, and property damage, was about $76,000. The jury found in favor of Atkins and awarded Atkins damages of $100,000 and his wife Lori $1,000 for loss of consortium.

[¶ 3.] The fenced-in enclosure in which the horses were kept was adjacent to the accident site. It was not conclusively established as to how the horses escaped from the enclosure and onto the road. No fences were damaged or broken, no horse hair was found on the tops of fences to show the horses jumped over, and Stratmeyers said that upon their examination the next morning they found all the gates closed. Testimony by horse experts from both parties showed the most likely way the horses ended up on the road was through a gate which was left open.1 It is undisputed that the last person to check the gates before the accident was either Stratmeyer.

[¶ 4.] As will be detailed in the pertinent discussion below, at several points before, during and after trial, Stratmeyers made various objections and moved for directed verdict, mistrial, new trial, and judgment notwithstanding the verdict. The trial court's rulings on these motions led Stratmeyers to appeal and raise the following issues:

Whether a mistrial or new trial was required due to mention of Atkins' insurance and financial condition during the jury trial.
Whether the jury was precluded from finding Brad Atkins contributory negligent due to (1) allowing a highway patrol officer to testify that the vehicle was traveling the speed limit and (2) refusing to instruct the jury regarding over-driving the conditions.
Whether the trial court erred in instructing the jury to consider evidence, testimony and argument concerning the high volume of traffic on the highway where the accident occurred.
Whether the evidence at trial supported the jury's verdict of negligence on the part of Stratmeyers.

[¶ 5.] Atkins filed a notice of review and raises several issues regarding jury instructions concerning a livestock owner's duty of care which they want given if the case is remanded. Atkins also present one issue having to do with costs which were not awarded to them:

Whether the trial court erred in refusing to grant Atkins the costs of: (1) costs in obtaining impairment ratings from a physician; (2) all copies made by plaintiffs in the process of prosecuting this matter without itemizing the use of each photocopy; and (3) the costs of retaining a private investigator for investigating service in producing and finding evidence necessary to try the case.
STANDARD OF REVIEW

[¶ 6.] "Evidentiary rulings will not be disturbed unless there is a clear showing of an abuse of discretion." Zens v. Harrison, 538 N.W.2d 794, 795 (S.D.1995)(citing State v. Hanson, 456 N.W.2d 135, 138 (S.D.1990); State v. Olesen, 443 N.W.2d 8, 9 (S.D.1989); State v. Bawdon, 386 N.W.2d 484, 486 (S.D.1986)).

[¶ 7.] We also review a trial court's grant or denial of new trial under the abuse of discretion standard:

It is a well-established rule in South Dakota that a trial court has broad discretion to grant a new trial on the ground of insufficient evidence. Lewis v. Storms, 290 N.W.2d 494, 497 (S.D. 1980). Nevertheless, a jury's verdict should not be set aside "except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law...." Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D. 1983)(citing Simons v. Kidd, 73 S.D. 306, 42 N.W.2d 307, 309 (1950)). A verdict should only be set aside if the jury's conclusion was unreasonable and a clear illustration of its failure to impartially apply "the reasoning faculty on the facts before them." Lewis, 290 N.W.2d at 497 (quoting Drew v. Lawrence, 37 S.D. 620, 623, 159 N.W. 274, 277 (1916)).

LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 13, 544 N.W.2d 523, 526-27.

The trial court is best able to judge whether a verdict is the product of passion and prejudice, and the Supreme Court will not disturb its decision except for clear abuse. Stene v. Hillgren, 77 S.D. 165, 88 N.W.2d 109 (1958).
...
An application for a new trial is addressed to the sound discretion of the trial court and the grant or denial will not be overturned absent a showing of abuse of discretion. Lewis v. Storms, 290 N.W.2d 494 (S.D.1980); Jensen v. Miller, 80 S.D. 384, 124 N.W.2d 394 (1963). Orders granting new trials stand on firmer ground than orders denying them. Id.; Gould v. Mans, 82 S.D. 574, 152 N.W.2d 92 (1967).

Simmons v. City of Sioux Falls, 374 N.W.2d 631, 632 (S.D.1985).

[¶ 8.] Regarding a judgment NOV (notwithstanding the verdict), we have said:

A motion for judgment [notwithstanding the verdict] is based on and relates back to a directed verdict motion made at the close of all the evidence. [SDCL 15-6-50(b) ] Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, ... then without weighing the evidence we must decide if there is evidence which would have supported or did support a verdict. (citations omitted).

Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 94-95 (quoting Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995)); see also State v. DeNoyer, 541 N.W.2d 725, 733 (S.D.1995)

; Bridge v. Karl's, Inc., 538 N.W.2d 521, 523 (S.D.1995).

DECISION

[¶ 9.] Whether Atkins' insurance and financial condition were improperly mentioned during jury trial.

[¶ 10.] In Brad Atkins' testimony during trial in front of the jury, the subject of insurance was mentioned:

Question: And did you have to borrow any money to just—did you receive any pay while you were sick?
Answer: No. My dad's company was smaller at that time. We didn't offer insurance and I didn't qualify for Workman's Comp, so I had to borrow three thousand dollars from my father.

Stratmeyers claim that this exchange improperly introduced insurance to the jury and left the jury with the impression that Atkins did not have applicable health insurance, which in actuality he did possess. Stratmeyers also claim that Atkins improperly mentioned damages in closing arguments:

Atkins' Counsel: Let's talk about damages for a moment. There's really no dispute at all that the Atkins suffered $70,693.57 in damages. They spent that for the car that was destroyed, the medical expenses, the lost work. That's a goodly sum of money for somebody else's enjoyment. So there's no quarrel with that.

[¶ 11.] The trial court had issued a pretrial order prohibiting the mentioning of insurance2, but said it was allowable for Atkins to talk about damages.3 Stratmeyers moved for mistrial after both the above incidents. The trial court denied the motions. After judgment was entered, Stratmeyers moved for a new trial based on the alleged improper injection of insurance. Again, the trial court denied the motion. The trial court offered Stratmeyers a limiting instruction after insurance was mentioned but Stratmeyers declined.4

[¶ 12.] The rule prohibiting the introduction of insurance is found in SDCL 19-12-13:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

"This rule evolved as a way to protect defendants from the possibility that a jury may be influenced in its findings of liability or damages by the mention of insurance." LDL Cattle Co., Inc. v. Guetter, 1996 SD 22 at ¶ 27, 544 N.W.2d at 528-529 (citing Lowe v. Steele Const. Co., 368 N.W.2d 610, 613 (S.D.1985)). What was mentioned in this case was Atkins' health insurance, not Stratmeyers' liability insurance, which is not prohibited by the statute.

[¶ 13.] Nevertheless, Stratmeyers insist that the above statements to the jury were in violation of the trial court's orders and resulted in prejudice to the Stratmeyers, thus requiring a new trial. Similar to the applicable statute, South Dakota case law on this issue involves the mention of defendant's liability insurance, not the mention of plaintiff's health insurance. See, e.g., LDL Cattle Co., Inc. v. Guetter, 1996 SD 22

at ¶ 27, 544 N.W.2d at 528-29; Arbach v. Gruba, 89 S.D. 322, 327, 232 N.W.2d 842, 845 (S.D.1975). Even the mere mention of the presence of liability insurance is not always grounds for immediate mistrial. Lowe v. Steele Const....

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