Bischoff v. Koenig, 7793

• Citation: 100 N.W.2d 159
• Decision Date: 30 December 1959
• Docket Number: No. 7793,7793
• Parties: Fred BISCHOFF, individually, and as the surviving husband of Mary Bischoff, Plaintiff and Respondent, v. Simon KOENIG, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 159

100 N.W.2d 159

Fred BISCHOFF, individually, and as the surviving husband of Mary Bischoff, Plaintiff and Respondent, v. Simon KOENIG, Defendant and Appellant.

No. 7793.

Supreme Court of North Dakota.

Dec. 30, 1959.

Syllabus by the Court.

1. Where in an action for damages growing out of an automobile accident plaintiff upon examination by his counsel stated that funeral and burial expenses for his wife, who was killed in the accident, were paid by the defendant's insurance, and defendant thereupon moved for a mistrial on the ground that plaintiff had brought defendant's liability insurance before the jury, it is held for reasons stated in the opinion that the trial court erred in denying the motion for mistrial, notwithstanding the jury was instructed to give no consideration to the question of defendant's liability insurance in arriving at a verdict.

2. An expert may not give an opinion on facts and circumstances which men in general are capable of understanding and upon which they may form an intelligent opinion.

Palda, Palda & Peterson, Minot, for appellant.

Friederich & Ziegler, Rugby, for respondent.

SATHRE, Chief Justice.

The plaintiff, Fred Bischoff, brought this action against Simon Koenig and Ingval Vangsnes to recover damages growing out of a collision between a car of the defendant Koenig in which plaintiff and his wife were guest passengers, and a car driven by the defendant Vangsnes. The plaintiff was injured and his wife was killed. The case came on for trial at Rugby, North Dakota, December 12, 1957. A recess was taken to December 16, 1957, at which time a jury was selected and sworn to try the case. Thereafter the attorneys for the plaintiff announced that a settlement had been had of the claim of the plaintiff against the defendant Vangsnes and that the trial was to be continued against the defendant Simon Koenig alone. The attorney for the defendant Koenig moved for a continuance on account of surprise, and after some discussion between the court and counsel, court recessed to March 4, 1958.

When the court reconvened on March 4, 1958, counsel for the defendant moved for a change of venue or for dismissal of the action without prejudice on the grounds that the jury was selected in the presence of the entire panel, that the jurors lived in the community, had read the newspapers that had been published for a period of more than two months, and that therefore the members of the panel could not do justice to either party. The motion was denied.

The court thereupon dismissed the jury that had been impaneled and sworn on December 16th and a new jury was selected and sworn to try the case from the panel that had been in recess since December 16. The plaintiff filed an amended complaint in which Simon Koenig alone was made the defendant. The defendant renewed his motion for a continuance upon the same grounds the original motion for a change of venue was made. The motion was denied.

The amended complaint alleges that the plaintiff and his wife were riding as gratuitous guests in the car of the defendant and that about the hour of 7 o'clock P.M. on a township road at approximately 7 1/2 miles west and 3 miles south of Rugby while the plaintiff and his wife were gratuitous guest passengers riding in defendant's automobile driven by the defendant on said township road, said defendant was intoxicated and operated his car in a careless, reckless, unlawful and grossly negligent manner, and without care or caution and without heed for the safety of himself or his passengers, and that as a direct and proximate result of the gross negligence of the defendant, defendant's car collided with a car driven by one Ingval Vangsnes and that the wife of the plaintiff was killed by the force of the collision and the plaintiff suffered bodily injuries and the loss of one eye. Damage is demanded in the sum of $19,500 and costs.

The answer denies generally the allegations of the complaint and alleges that if plaintiff suffered any damages the same were due to his own contributory negligence. A jury trial was had and a verdict was rendered in favor of the plaintiff. Judgment was entered for the plaintiff upon the verdict and from this judgment the defendant appealed.

There is no material dispute as to the facts in the case. The plaintiff and defendant are farmers and neighbors residing approximately 7 miles west and 3 miles south of Rugby, North Dakota. On the morning of February 13, 1956, the defendant and his wife decided to drive to Devils Lake, North Dakota, and they invited the plaintiff and his wife to accompany them in defendant's car. The plaintiff and his wife accepted the invitation and the parties left in defendant's car shortly before 11 o'clock. They drove to Devils Lake where they spent a considerable portion of the afternoon. On their return trip they stopped a short time at Rugby where defendant purchased gasoline for his car. They then drove south on a graveled township road where the defendant's car collided with a car driven by Vangsnes as referred to herein. Plaintiff's wife was killed in the collision and both plaintiff and defendant were injured and were hospitalized. While at Devils Lake the plaintiff and defendant each had two drinks of Vodka Sour and on their return trip each had two drinks of Vodka Sour at Rugby. There is however no evidence in the record of any conduct on the part of either the plaintiff or the defendant from which intoxication could be inferred.

During the examination of the plaintiff on direct examination by his counsel he was asked the following question:

'The funeral and burial expenses for your wife, Mary was paid by whom?'

The plaintiff answered: 'By Simon's Insurance.'

Counsel for defendant thereupon moved for a mistrial on the ground and for the reason that the plaintiff had testified that Simon Koenig's insurance had paid for the medical bills and funeral expenses. The motion was denied.

Douglas Martin, a highway patrolman, was a witness for the plaintiff. He was permitted, over objection by the defendant, to testify as an expert that alcohol will retard the reflexes or reaction time of the driver of an automobile and impair his driving ability. He testified further that he arrived at the scene of the accident about an hour after it occurred. He described the position of the Koenig and Vangsnes cars on the road as he found them after the collision. He gave the measurements that he had taken of the distance of the two cars from each other, as well as the distance of each car from the west edge or ditch of the road. Upon examination by plaintiff's attorney he testified as follows:

'Q. (By Mr. Friederich) Now, Mr. Martin, in the course of the investigation that you made, do you attempt to determine the position of the vehicles on the road just prior to the accident? A. Yes.

'Q. (By Mr. Friederich) Did you make that type of an investigation and a determination of this accident? A. Yes.

'Q. Are you prepared to state with reasonable certainty, Mr. Martin, the position of these vehicles upon the highway just the moment before they collided?

'Mr. Palda: Answer yes or no, please. A. Yes.

'Q. (Mr. Friederich) Will you proceed, Mr. Martin, by the use of that easel, to draw a sketch which conforms to the information that you obtained from your investigation and which shows the position of these vehicles upon the highway just momentarily before the collision?

'Mr. Palda: That is objected to as calling for a conclusion of the witness, an opinion of the witness, invading the province of the jury.

'The Court: Well, by this sketch he is going to show the physical facts as they existed at that highway.'

After further examination by plaintiff's attorney and objections by the defendant which were overruled, the Court, addressing the witness, said:

'The Court: You go ahead and make your sketch. (Whereupon, witness leaves stand and faces easel.)

'Mr. Palda: While Mr. Martin is doing that have the record show an easel has been placed before the jury and Doug Martin, the Highway Patrolman, is now drawing on a paper located on such easel.

'The Court: Very well, the record will so show.'

Plaintiff's counsel:

'Q. This diagram, Mr. Martin, that you have drawn is based upon your investigation and the notes and information that you obtained, and is a fair representation of the position of the vehicles just before the accident, isn't that correct, Mr. Martin?

'Mr. Palda: Just a minute, Mr. Martin. That is objected to as incompetent, irrelevant and immaterial, calling for a conclusion of the witness, an opinion of the witness, and it is invading the province of the jury.'

The diagram or sketch drawn by the patrolman was marked plaintiff...