Briscoe v. Nishitani

• Decision Date: 28 July 1983
• Docket Number: No. 13474,13474
• Citation: Briscoe v. Nishitani, 667 P.2d 278, 105 Idaho 175 (Idaho App. 1983)
• Parties: Lillie BRISCOE, a single person, Plaintiff-Respondent, v. Michael NISHITANI, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 278

667 P.2d 278

105 Idaho 175

Lillie BRISCOE, a single person, Plaintiff-Respondent, v. Michael NISHITANI, Defendant-Appellant.

No. 13474.

Court of Appeals of Idaho.

July 28, 1983.

Kenneth D. Roberts, Caldwell, for defendant-appellant.

Gary L. Morgan and William H. Wellman, Caldwell, for plaintiff-respondent.

WALTERS, Chief Judge.

This is an appeal in a declaratory judgment action involving the ownership of a 1957 Ford Thunderbird automobile. By special verdict a jury found that the respondent, Lillie Briscoe, had not made a gift of the automobile to her nephew, Michael Nishitani. Judgment was entered decreeing title and possession of the vehicle to Mrs. Briscoe.

Nishitani contends that the judgment should be reversed because (1) the trial court erroneously rejected his offer of proof of expenditures he had made upon the automobile; (2) the trial court improperly instructed the jury; (3) the trial court erred in submitting to the jury the single issue of whether a gift had occurred; and (4) the award of attorney fees to Mrs. Briscoe at trial was improper. In addition, both parties request attorney fees on appeal. We affirm the judgment of the trial court in all respects and do not award attorney fees on appeal to either party.

The following facts, concerning the vehicle, are undisputed. In 1961, Nishitani moved into the Briscoe home, occupied by Lillie Briscoe and her husband. While living there and attending the College of Idaho, Nishitani was allowed to use the Briscoes' Thunderbird automobile. In 1963, when Nishitani left Idaho to attend medical school, the Briscoes allowed him to take the car. In January, 1964, the title to the car was transferred to him by Mr. Briscoe. Mr. Briscoe died the next year.

At trial, Mrs. Briscoe and Nishitani's mother testified that the transfer of title was made to eliminate the Briscoes' potential liability, as owners of the automobile, for any third party claims which might arise from Nishitani's use of the vehicle. Mrs. Briscoe testified that later, when she asked Nishitani for payment or for return of the car, he told her "to just wait." Nishitani's father testified to a conversation with Nishitani in 1972 in which Nishitani had said he intended to pay for the car "when he got his feet on the ground." Testimony of other witnesses reflected similar statements made by Nishitani. Nishitani stated that he did not remember the conversation with his father, but admitted making other statements, similar in nature, to his now ex-wife and to Mrs. Briscoe. However, no payments were ever made by Nishitani to Mrs. Briscoe.

In 1978, Mrs. Briscoe repossessed the car without Nishitani's knowledge or consent. Mrs. Briscoe then brought suit for declaratory judgment, asking that the court find that she be entitled to possession of, and title to, the car. The case was presented to the jury in a special verdict form which asked, "Did the plaintiff, Lillie Briscoe, make a gift of the 1957 Ford Thunderbird automobile to the defendant, Michael Nishitani?" The jury answered in the negative. As noted earlier, judgment was entered in Mrs. Briscoe's favor and Nishitani appealed.

I. Proof of Expenditures

We first address Nishitani's argument that his offer of proof of the amount of expenditures on the car--while he had possession of it--should have been accepted to show (a) his belief that a gift had been made, or, alternatively, (b) to show the amount by which Mrs. Briscoe would be unjustly enriched if she were allowed to keep the automobile. The trial court rejected the offer of proof on the ground of irrelevancy and because the offered proof contravened the "best evidence" rule. For reasons stated below, we conclude that the court did not err in excluding the evidence as irrelevant. Our determination of the relevancy issue therefore renders unnecessary a review of the "best evidence" ruling.

Relevancy encompasses the questions of (1) whether the evidence which is offered is logically probative of the issue for which it is offered and (2) whether that issue is a "material issue" in the case. State v. Marlar, 94 Idaho 803, 498 P.2d 1276 (1972). Taking the second question first, it is clear that the issue of a gift was material to the case and we will assume that the issue of unjust enrichment was also material. The scope of our review, therefore, is narrowed to whether the evidence contained in Nishitani's offer of proof was logically probative on these issues.

On the issue of gift, Nishitani had testified, prior to his offer of proof and without objection from Mrs. Briscoe, that he had expended monies on the care and maintenance of the vehicle. It was only when Nishitani was asked to itemize the amounts expended that Mrs. Briscoe raised the question of relevancy.

In our view the fact that Nishitani had made some expenditures on the vehicle was relevant to show his belief a gift had occurred. Whether the amount of those expenditures was also relevant would depend upon the nature of the expenditures. In his offer of proof, Nishitani claimed to have expended money upon brake, transmission and heater repair; replacement of tires and batteries; repainting the vehicle three times; replacing the seat with a new one; purchase of a new top; purchase of other new and unused parts available for 1957 Thunderbirds; replacement of the fuel pump; desludging the engine; and an amount for automobile insurance coverage. He also claimed storage for the vehicle, and offered his opinion as to the "worth" of that storage.

The trial court concluded, and we agree, that these expenditures were related to the maintenance and operation of the vehicle while Nishitani had the use of it. Accordingly, we conclude that the amount of such expenditures was not probative of Nishitani's belief that a gift had occurred.

We turn next to the issue of unjust enrichment. This issue invites a similar analysis. The offer of proof made no showing of the value of the automobile at the time Nishitani received it, nor of its value at the time of trial. Neither was there any showing that the expenditures made by Nishitani increased the value of the automobile above the value it would have had if Nishitani had not used the vehicle during the approximate fourteen-year period it was in his possession. Therefore we conclude that the proffered evidence was not probative of the issue of unjust enrichment. We uphold the trial court's decision to exclude the evidence.

II. Instructions

Next, Nishitani asserts error regarding instructions to the jury. He contends that the trial court erred in not instructing the jury concerning questions of whether Briscoe's cause of action was barred by a statute of limitations, or by the equitable doctrines of laches, waiver or estoppel. He also contends the trial court erred in not instructing the jury concerning legal ownership of the automobile prior to 1964. Finally, he argues that the court erred in giving a jury instruction concerning tort liability of automobile owners.

Preliminarily, we note that objections to giving, or failing to give, jury instructions, and the court's ruling thereon at the close of evidence at the trial, must be made a part of the record. I.R.C.P. 51(a)(1). Failure to make an objection on the record precludes raising the issue on appeal. Quincy v. Joint School District No. 41, Benewah County, 102 Idaho 764, 640 P.2d 304 (1981); Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978). Here the only objection in the record as to the giving, or failure to give, jury instructions concerns the instruction on the tort liability of the owner of the car. We shall therefore consider only that objection.

Mrs. Briscoe and another witness, Nishitani's mother, both testified that title to the automobile was transferred to avoid imposition of liability on Mrs. Briscoe for Nishitani's use of the vehicle. This testimony came without objection from Nishitani. The trial court included I.C. § 49-1404(1) in the instructions to the jury. Under that statute, an owner of a motor vehicle is liable for death or for injury resulting from the negligence of an individual who operates a vehicle with the owner's permission.

The sole bases of Nishitani's objection at trial were (a) that Mrs. Briscoe had not mentioned this specific statute in her testimony, and (b) that there had been no showing that the language of the statute, at the time title was transferred, was the same as the language of the statute at the time of the trial. We believe that neither of these...