Colwell v. Bothwell, 6527

Decision Date13 March 1939
Docket Number6527
Citation89 P.2d 193,60 Idaho 107
PartiesKATHERINE COLWELL, Respondent, v. BETH BOTHWELL and JAMES R. BOTHWELL, Appellants
CourtIdaho Supreme Court

AUTOMOBILES-INJURY FROM OPERATION-NEGLIGENCE-EVIDENCE-INJURY TO PASSENGER-GUEST-LIABILITY OF OWNER OF CAR DRIVEN BY ANOTHER.

1. Motorist is not required to entirely abandon highway to drunken or reckless driver to avoid collision with him unless there is a reasonably safe way of escape open to reasonably prudent, average driver under existing circumstances.

2. In action by high school girl basketball player for injuries sustained while riding in automobile driven by member of team, evidence that driver upon seeing truck approaching on her side of road applied brakes hard enough to skid automobile and that automobile was struck by approaching truck was insufficient to establish actionable negligence where it appeared accident would have occurred even if automobile had been driven straight ahead.

3. As respects owner's liability for injuries sustained by high school girl basketball player while riding in his automobile being driven by his daughter, neither family purpose doctrine nor mere ownership of automobile was adequate to show agency liability, since no purpose of owner was being served by trip.

4. In action by high school girl basketball player for injuries sustained while riding in automobile driven by member of team, question asked driver on cross-examination as to whether her father understood she was to drive automobile on trip was objectionable as calling for state of mind of one other than witness.

5. As respects owner's liability for injuries sustained by high school girl basketball player in his automobile being driven by his daughter, proof that owner "understood" that his daughter was to drive automobile was not equivalent to directing daughter herself, and no other, to drive automobile so as to establish relationship of principal and agent between owner and daughter.

6. As respects owner's liability for injuries sustained by high school girl basketball player while riding in his automobile being driven by his daughter, evidence was insufficient to establish relationship of principal and agent between owner and daughter.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Action for personal injuries arising from automobile accident. From a verdict and judgment against both defendants, they appeal. Judgment reversed as to each appellant and cause remanded with direction to the trial court to dismiss the case.

Judgment reversed both as to James R. Bothwell and Beth Bothwell, with costs to appellants, and cause remanded with directions.

Chapman & Chapman for Appellants.

Since the evidence establishes (a) that respondent was not a guest of appellants, or either of them; (b) that the accident was not intentional on the part of either of appellants; (c) or that the accident was caused by the gross negligence of either appellant or (d) by the reckless disregard of either appellant of the rights of others, appellants are justly entitled to a reversal of this judgment. (Sec. 48-901, I. C. A.; French v. Tebben, 53 Idaho 701, 27 P.2d 474, 475; Gorton v. Doty, 57 Idaho 792, 797, 69 P.2d 136, 137.)

To permit a witness, over timely objection, to testify as to what some other person understood concerning her driving an automobile on a trip is prejudicial error where such conclusion relates to an important issue and is reversible error. (22 Corpus Juris, 485-492; Jones' Commentaries on Evidence, 2d ed., secs. 1241-1245; United States Fidelity & Guaranty Co. v. Henderson, (Tex. Civ. App.) 53 S.W.2d 811, 815; Globe & Rutgers Fire Ins. Co. v. Pappas, 219 Ala. 332, 122 So. 346; Aiken v. McMillan, 213 Ala. 494, 106 So. 150.)

Since the record fails to establish any negligence, and particularly the gross negligence alleged in the complaint, it was error for the court to instruct the jury upon the law of ordinary negligence and to refuse to instruct the jury as to the law of gross negligence and to deny appellants' motions for nonsuit, directed verdict, for judgment notwithstanding the verdict, and for new trial, and to enter judgment on the verdict in favor of respondent. (Sec. 48-901, I. C. A.; Turner v. Buchanan, 94 F.2d 723; Law v. Gallegher, (Del.) 197 A. 479; Sheets v. Stalcup, (Ind. App.) 13 N.E.2d 346; Garris v. Kline, 119 N.J.L. 435, 197 A. 63; McMillian v. Sims, (Tex. Civ. App.) 112 S.W.2d 793; Horn v. Volko, 13 Cal.App. (2d) 582, 57 P.2d 175.)

Harry Benoit and Walters, Parry & Thoman, for Respondent.

View of the facts of the collision most favorable to appellants is that of negligence of car driver combining with negligence of truck driver to cause the collision, in which event car driver may be sued alone. (42 C. J. 1130; 45 C. J. 895; Sullivan v. William Ohlhaver Co., 291 Ill. 359, 126 N.E. 191.)

Respondent need not prove gross negligence against either appellant. (Gorton v. Doty, 57 Idaho 792, 69 P.2d 136.)

There is no true guest relationship between respondent and the driver of the car, or its owner, or the school district. (Rocha v. Hulen, 6 Cal.App. (2d) 245, 44 P.2d 478; Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116; State Compensation Ins. Fund v. Dalton, 13 Cal.App. (2d) 284, 56 P.2d 962.)

AILSHIE, C. J. Budge and Holden, JJ., concur. GIVENS, J., Morgan, J., Dissenting in Part.

OPINION

AILSHIE, C. J.

Mr. Justice Givens has written his views of this case which follow in part as a dissenting opinion. He has recited the principal essential facts in the case and the justices unanimously concur in his views as to the non-liability of appellant James R. Bothwell; and we therefore refer to his opinion for our holding on that branch of the case.

As to the liability of appellant Beth Bothwell, the majority of the court do not concur in Justice Givens' views and for that reason we are writing the following:

Miss Bothwell was driving her father's car for the school authorities, on the business of the school and under the direction of the Superintendent Mr. Smith and Finance Manager Mr. Wakem, and Miss Call, the Coach. Wakem was directed by the superintendent to take the lead and Miss Bothwell was to follow. They were instructed to make a speed of not over 40 to 45 miles per hour and the evidence discloses that they did not exceed that speed. When this accident occurred Wakem was in the lead on the right side of the road and somewhere from a half block to a quarter of a mile ahead of the Bothwell car. The truck which collided with the Bothwell car was unquestionably traveling on the wrong side of the road, that is, on the north side, as it was proceeding east. Wakem avoided the collision by entirely leaving the pavement and going into the ditch. Miss Bothwell, on seeing the Wakem car go into the ditch and the truck approaching, slowed down her car and attempted to stop and the car skidded. It was struck by the truck and turned completely around, so that after the collision the car stood facing the east from which direction it had been traveling. That the driver of the truck had been drinking and was at least in a state of intoxication, is established beyond a reasonable doubt.

The driver of the Bothwell car could have gone into the ditch and avoided colliding with the truck, but that would have been a dangerous venture and it would be unreasonable to say that she was guilty of negligence because she didn't make such venture. Furthermore, it would be asking too much of her to require her to leave the road and go into the ditch at the hazard of injuring or killing half a dozen girls in her car. Wakem in the lead took that chance and succeeded, but the evidence shows that it was at a risk which would probably be branded as negligence on his part had he killed or crippled some of his passengers. We do not understand the law to require a driver to entirely abandon the highway to a drunken or reckless driver, to avoid collision with him, unless there is a reasonably safe way of escape open to a reasonably prudent, average driver, under the existing circumstances.

The fact that the Bothwell car skidded is not, under the circumstances here disclosed, evidence of negligence on the part of the driver of the car. Nor is the fact that she pressed the brakes hard enough to skid the car, of itself evidence of negligence where she was confronted, as here, with an approaching truck on her side of the road. As we view the record, there is nothing to justify the contention that, had she driven straight ahead, she would have missed the truck, for it appears that the truck had driven the Wakem car off the road and the Bothwell car had skidded and was cross-ways of the road where the truck immediately hit it on the right door before the car could move farther in any direction. The impact of the truck is what turned the car completely to the east, so that it is clear that the truck had not made any material change in its position from appellant's right-hand side of the road after the brakes were applied by Miss Bothwell, and consequently, if Wakem could not pass the truck, evidently Miss Bothwell could not do so.

As we read the record in this case, we are unable to find any act or omission, on the part of the driver of the Bothwell car, which constitutes actionable negligence. Here, conceding, as we must, the most that can be claimed for the evidence, we are confronted with a question of law as to whether it is of such a substantial character as will support a verdict and judgment for negligence.

The judgment will therefore be reversed both as to James R. Bothwell and Beth Bothwell, with costs to appellants, and the cause is remanded with directions to dismiss the action.

Budge ...

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3 cases
  • Petersen v. Parry
    • United States
    • Idaho Supreme Court
    • December 16, 1968
    ...82 Cal.App.2d 733, 187 P.2d 78 (1947). This same principle has been recognized and followed in the Idaho cases of Colwell v. Bothwell, 60 Idaho 107, 89 P.2d 193 (1939); Stuart v. McVey, 59 Idaho 740, 87 P.2d 446 (1939); and Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724 The facts in the ca......
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    ...Foster v. Thomas, 85 Idaho 565, 382 P.2d 792 (1963); Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724 (1960). See also, Colwell v. Bothwell, 60 Idaho 107, 89 P.2d 193 (1939). ...
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