Batchoff v. Lraney

• Decision Date: 11 September 1946
• Docket Number: No. 8624.,8624.
• Parties: BATCHOFF v. LRANEY.
• Court: Montana Supreme Court

119 Mont. 157

BATCHOFF

v.LRANEY.

No. 8624.

Supreme Court of Montana.

June 29, 1946.

As Amended on Denial of Rehearing Sept. 11, 1946.

Appeal from District Court, Second Judicial District, Silver Bow County; T. E. Downey, Judge.

Action by D. A. Batchoff against Ed Crancy for injuries sustained while riding as a guest in defendant's automobile. Judgment for plaintiff, and defendant appeals.

Affirmed.

John K. Claxton, of Butte, for appellant.

J. F. Emigh and H. D. Carmichael, both of Butte, for respondent.

ANGSTMAN, Justice.

Plaintiff brought this action to recover damages for personal injuries sustained by him while riding as a guest in an automobile alleged to have been owned and controlled by defendant but which was being operated and driven by Bailey Stortz. The jury returned a verdict for plaintiff in the sum of $10,000. The cause was tried before the Hon. T. E. Downey, district judge. A motion for new trial was filed by defendant. Judge Downey was disqualified from hearing the motion and the Hon. Jeremiah J. Lynch assumed jurisdiction of the case and after hearing denied the motion.

Defendant has appealed from the judgment.

The accident happened on November 2, 1940, near Big Timber as the automobile was being driven from Billings to Butte. Plaintiff was then chief liquor enforcement officer for the state of Montana.

Between 4 and 5 o'clock in the morning of that day he went to the Northern Pacific depot in Billings and was about to take the North Coast Limited to Butte after having purchased a ticket; there he met defendant. He said the following conversation ensued: ‘Well, I saw him come in with a car. He came in and asked me where I was going and I told him I was taking the train to Butte. Well, he said, ‘Oh, hell, Jim, stay here and miss this train.’ He said Senator Wheeler and Mrs. Wheeler and Bailey are coming off of this train and I got to ride back on the plane. He said, ‘I am going to leave my automobile with Bailey to drive it back to Butte,’-that's Bailey Stortz-‘and you can ride along with him. He said he is going to bring it back to Butte.’ I thanked him and we visited a while and passed a few pleasant conversations there and in due course of time the train arrived. Off of the train came Mr. and Mrs. Wheeler and Bailey Stortz, who was Wheeler's secretary, and they shook hands. Craney had a little talk with Senator Wheeler and in the meantime Grover Cisel came in with his car and took Mr. and Mrs. Wheeler to their home, and Bailey Stortz and Cranoy and I were left alone at the depot and Craney said to Bailey: ‘I got to make that plane which leaves about 6 o'clock from the Rimrocks airport in Billings, it's there on top of the rimrocks, and I asked Batchoff and invited him to ride along with you.”

Pursuant to arrangements plaintiff met Stortz at the Grand Hotel in Billings about 3 p. m. that day and they started for Butte in the defendant's automobile with Bailey Stortz doing the driving. Plaintiff testified that Stortz drove the car from 70 to 75 miles per hour; that he, plaintiff, complained of the excessive speed but instead of slowing down the speed was increased to between 80 and 85 miles per hour; there were wet spots in the road; the car hit a wet spot, skidded around several times; the door of the car swung open and plaintiff was thrown from the car into a borrow pit and the car followed and struck him and ran over him causing the injuries complained of and rendering him unconscious.

Plaintiff thereafter presented a claim to the Industrial Accident Board and testified in support of the claim.

His testimony before the Industrial Accident Board differed in some respects from that given at the trial of this case. Thus before the Industrial Accident Board he testified that Stortz invited him to ride to Butte and he accepted the invitation. Likewise before the Industrial Accident Board plaintiff testified that he intended to go to Big Timber where he had an hour or so of work and then was going from there to Butte. Likewise plaintiff, in making a statement of the accident to Dr. Preston of Missoula, stated that near Big Timber the car slowed down in order to pass a flock of sheep and on resuming speed the car slipped on the icy pavement and rolled over a bank whereas at the trial of this case he testified there were no sheep on the highway.

Defendant produced witnesses who testified that he lent his car to Senator Wheeler for his use in and around Billings and that Stortz was acting as agent of Senator Wheeler in returning the car to Butte when the accident occurred. In other words, the evidence was in sharp conflict if it can be said that the testimony of plaintiff is worthy of belief. Whether his testimony was worthy of belief was for the jury to determine.

Thus in Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 377, 66 A.L.R. 587, this court said:

‘A jury may believe the testimony of one witness and disbelieve that of another, or any numbers of others, and the determination of the jury in this regard is final; having spoken, this court must assume that the facts are as stated by the witnesses believed by the jury, and claimed by the prevailing party. Hanson Sheep Co. v. Farmers', etc., State Bank, 53 Mont. 324, 163 P. 1151;Watts v. Billings Bench Water Ass'n, 78 Mont. 199, 253 P. 260. The preponderance of the evidence may be established by a single witness as against a greater number of witnesses who testify to the contrary. McQuay v. McQuay, 81 Mont. 311, 263 P. 683.

‘It follows that wherever there is a conflict in the evidence this court may only review the testimony for the purpose of determining whether or not there is any substantial evidence in the record to support the verdict of the jury, and must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not to be entitled to belief; and, where a verdict is based upon substantial evidencewhich, from any point of view, could have been accepted by the jury as credible, it is binding upon this court, although it may appear inherently weak. Williams v. Thomas, 58 Mont. 576,194 P. 500. Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the court, as here, has passed upon the sufficiency of the evidence on motion for a directed verdict and motion for a new trial and upheld its sufficiency.’ And see to the same effect Gilmore v. Mulvihill, 109 Mont. 601, 98 P.2d 335, and In re McCue, 80 Mont. 537, 261 P. 341.

It should be noted that the statements made by plaintiff before the Industrial Accident Board and other declarations contrary to his testimony in this case may not be considered as substantive evidence in this case so as to present a situation where there is material conflict and contradiction in his own testimony within the rule stated in Putnam v. Putnam, 86 Mont. 135, 282 P. 855. The only effect of declarations made by plaintiff at other times and places is to impeach him, leaving the question of his credibility for the jury.

In Wise v. Stagg, 94 Mont. 321, 22 P.2d 308, 311, we said: ‘After contradiction of a witness by showing his inconsistent statements at other times, not only is such contradictory evidence not substantive evidence concerning its subject-matter, but, as before, the credibility of the witness remains a question for the jury. 6 Jones' Commentaries on Evidence (2d Ed.) 4769; Thompson v. Los Angeles, etc., R. Co., 165 Cal. 748, 134 P. 709;Steele v. Kansas City So. R. Co., 302 Mo. 207, 257 S.W. 756.’

Speaking of the effect of prior statements inconsistent with present testimony, this court in State v. Peterson, 102 Mont. 495, 59 P.2d 61, 63, said:

‘These matters tend to discredit, but not destroy, the testimony of the prosecutrix. ‘A witness false in one part of his testimony is to be distrusted in others' (section 10672, subd. 3, Rev.Codes 1921), and ‘a witness may be impeached’ by contradictoryevidence that his general reputation for truth and integrity is bad, or that he has made at other times statements inconsistent with his present testimony (sections 10668, 10669, Id.); but while proof of falsity is one part of a witness' testimony, inconsistent statements at other times, contradictory evidence, and reputation may discredit the witness, such proof goes only to the credibility of the witness, of which the jury remains the sole judge, as well as the weight to be given thereto.

‘It follows that, although the jury may reject the false testimony and ‘assume, regarding the rest of it, an attitude of distrust,’ the jurors may render a verdict based upon the testimony of such witness if after examination they find it worthy of belief. State v. Penna, 35 Mont. 535, 90 P. 787;Vande Veegaete v. Vande Veegaete, 75 Mont. 52, 243 P. 1082;State v. Hogan, 100 Mont. 434, 49 P.2d 446. And the extent to which impeaching evidence impaired the credibility of a witness assailed is a question exclusively for the jury. State v. Duncan, 82 Mont. 170, 266 P. 400.'

To the same general effect is Jones on Evidence, 4th Ed., sec. 902, Vol. 3. There is nothing inherently incredible or improbable in plaintiff's version of what transpired so as to bring the case within the rule of Case v. Northern Pac. R. Co., 60 Mont. 56, 198 P. 141,Morton v. Mooney, 97 Mont. 1, 33 P.2d 262, and kindred cases relied upon by defendant.

The court did not err in denying the motion for nonsuit and directed verdict and so far as this point is concerned the court properly denied the motion for new trial.

Defendant predicates error upon the giving, over his objection, of Instruction No. 12 reading: ‘You are instructed that the proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which it would not have occurred. You are therefore instructed that if you find...