Bratton v. Slininger, No. 10419

• Court: United States State Supreme Court of Idaho
• Writing for the Court: DONALDSON; McFADDEN
• Citation: 460 P.2d 383,93 Idaho 248
• Parties: James C. BRATTON, Plaintiff-Respondent, v. Clifford J. SLININGER and Evergreen Express, Inc., Defendants-Appellants.
• Docket Number: No. 10419
• Decision Date: 24 October 1969

Page 383

460 P.2d 383 93 Idaho 248 James C. BRATTON, Plaintiff-Respondent,
v.
Clifford J. SLININGER and Evergreen Express, Inc., Defendants-Appellants. No. 10419. Supreme Court of Idaho. Oct. 24, 1969.

[93 Idaho 249]

Page 384

H. J. Hull & Sons, Wallace, for appellants.

Brown, Peacock & Keane, Kellogg, for respondent.

DONALDSON, Justice.

On May 10, 1965, respondent's (plaintiff's) car and appellants' (defendants') truck collided on U. S. Highway 10 about 1 1/2 miles east of the Rose Lake turnoff. The accident occurred at approximately 5 A.M., just at the break of dawn. The roadway was dry and each driver saw the other approaching. U.S. 10 is a two lane asphalt roadway, 22 feet in width.

Although appellant testified that the accident occurred in his lane of traffic, [93 Idaho 250]

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there was ample physical evidence in addition to the testimony of the respondent and other witnesses indicating that the collision occurred in respondent's (plaintiff's) lane.

The jury returned a general verdict of $34,869.76 in plaintiff's favor upon which judgment was entered. The defendants have appealed from the judgment and from the denial of their motion for judgment notwithstanding the verdict or in the alternative for a new trial.

By their first two specifications of error appellants contend that they were entitled to a set of instructions similar to those requested by the respondent and given by the trial court regarding justification for violation of the statute requiring drivers to keep to the right. ¹ Appellants assert that the jury should have been able to consider whether or not a violation of the statute by appellants was excusable or justifiable. Any party may file written requests that the court instruct the jury on the law as set forth in the requests. I.R.C.P. 51. It is not contested that appellants had a right to have the jury instructed on their theory of the case if supported by the evidence. Appellants' theory of the case was, as the appellant Slininger testified, that the accident happened on appellant's side of the road; that appellant Slininger did not cross the center of the road. Under this theory no instruction concerning justification of a violation of a statute by appellants was required to be given by the court since according to appellants' theory there was no violation of any statute by appellants. However appellants at this late date apparently advance the alternative theory that if appellant Slininger was on the wrong side of the road the violation was justified or excusable. The burden of proving such justification was on the appellants. In Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963) this court stated that there were only four excuses or justifications, (1) anything that would make compliance with the statute impossible; (2) anything over which the driver has no control which places his car in a position violative of the statute; (3) an emergency not of the driver's own making by reason of which he fails to obey the statute; (4) an excuse specifically provided by statute. A review of the evidence produced at the trial of this case shows [93 Idaho 251]

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no such excuse or justification. instructions should not be given which are not based on evidence adduced at trial. Preston A. Blair Co. v. Rose, 56 Idaho 114, 51 P.2d 209 (1935); Owen v. Taylor, 62 Idaho 408, 114 P.2d 258 (1941); Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968). Furthermore, instruction No. 15 which appellants claim should have been made applicable to them as well as to the respondent was requested by appellants and given as requested. Appellants are therefore in no position to complain. Fawcett v. Irby, supra; Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965). Under the circumstances the three instructions taken as a whole were correct.

Appellants also assert as error that respondent was not entitled to instruction No. 21, regarding damages to his vehicle since the evidence upon which the instruction was based proved only the worth of the automobile to respondent. In the case at bar the evidence disclosed that the vehicle was damaged on the left side in a sidewipe manner. There was no evidence adduced which impeached or contradicted respondent's testimony concerning the damage to the automobile and that the auto had no value to the respondent immediately following the collision. It is a well settled rule in this state that the owner of property is a competent witness to its value. Beech v. American Surety Co., 56 Idaho 159, 51 P.2d 213 (1935); Thibadeau v. Clarinda Copper Min. Co., 47 Idaho 119, 272 P. 254 (1928). The owner of an automobile has been held competent to testify as to its value. Garrett v. Neitzel, 48 Idaho 727, 285 P. 472 (1930). Where personal property, which is destroyed or injured by the willful or negligent act of another, has no market value, its value to the owner may be used as a basis for determining damages. Zenier v. Spokane International R. R. Co., 78 Idaho 196, 300 P.2d 494 (1956). While market value is the ordinary measure of direct property loss, yet, where the property is not salable, or its salable value would not be adequate compensation, the value to the owner will be accepted. McCormick on Damages, § 45 at 170 (1935). Since the evidence concerning damages to respondent's vehicle was not controverted by appellants and no market value was presented by appellants, as they had a right to do, they will not be heard to complain at this late time.

'When, as in this case, damages are to be assessed upon one of two methods, according to circumstances, and the plaintiff's proof is by one of these methods only, and the defendant fails to supply the other mode of proof, which may be more favorable to him, or to raise any question as to the failure of the plaintiff to supply it at the trial, an appellate court ought not to reverse the judgment * * *.' Hartshorn v. Caddock, 135 N.Y. 116 at 123, 31 N.E. 997 at 999, 17 L.R.A. 426 (1892).

Furthermore, since the jury returned a general and not a special verdict, there is no...