Crossler v. Safeway Stores, Inc., 5753

• Decision Date: 15 December 1931
• Docket Number: 5753
• Citation: 6 P.2d 151,51 Idaho 413
• Parties: C. A. CROSSLER, Respondent, v. SAFEWAY STORES, INC., and KENNETH CAMPBELL, Appellants
• Court: Idaho Supreme Court

6 P.2d 151

51 Idaho 413

C. A. CROSSLER, Respondent, v. SAFEWAY STORES, INC., and KENNETH CAMPBELL, Appellants

No. 5753

Supreme Court of Idaho

December 15, 1931

PLEADING - AMENDED ANSWER - WAIVER OF OBJECTION TO RULING - MUNICIPAL CORPORATIONS - TRAFFIC REGULATION-PRIVATE DRIVEWAYS - AUTOMOBILE COLLISION - ACTION FOR DAMAGES - TESTIMONY IN RESPECT TO INSURANCE-INSTRUCTIONS.

1. Filing amended answer after court had stricken defense of contributory negligence held not waiver of objection to ruling.

2. Use of motor vehicles on private driveway was subject to regulation by traffic ordinances of city.

3. Power of municipality to regulate use of vehicles within city limits is not limited to geographical boundary lines of dedicated streets and alleys.

4. Private driveways used by public within municipality are subject to municipal regulation for safety of public, whether dedicated or accepted by ordinance (C. S., sec. 3977).

5. Failure of court in action for damages in automobile collision to instruct jury to disregard testimony in respect to insurance held prejudicial error.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded. Costs awarded to appellants. Petition for rehearing denied.

Randall & Danskin, Frank L. Moore and Latham D. Moore, for Appellants.

It was error for the court to strike from appellants' answer the allegations identifying Ordinance No. 611, known as the Traffic Code of Moscow, Idaho, and the allegations with reference to the violation thereof by respondent and his son Arthur Crossler.

Traffic ordinances are the exercise by cities of their police powers to regulate the use of vehicles within the city limits. (19 R. C. L. 846, sec. 153.) They apply to all persons within the municipal limits and operate to control the conduct of persons wherever they may be within the city limits. (19 R C. L. 802.)

The law of the road extends to all places appropriated, either de jure or de facto, to the purpose of passing with vehicles whether they are so appropriated by public authority or by the general license of the owners thereof. (Commonwealth v. Gammons, 23 Pick. (Mass.) 201; Weirich v. State, 140 Wis. 98, 17 Ann. Cas. 802, 121 N.W. 652, 22 L. R. A., N. S., 1221; Grulich v. Paine, 231 N.Y. 311, 132 N.E. 100.)

It is improper to show in an action of negligence that the defendant is insured against loss in case of recovery against it on account of its negligence. (Iverson v. McDonnall, 36 Wash. 73, 78 P. 202; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 P. 271; F. W. Woolworth Co. v. Davis, 41 F.2d 342.)

In the nature of the case, striking of such evidence and the instruction to disregard it cannot cure the prejudicial effect of the fact being brought to the attention of the jury. (Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A., N. S., 59.)

Error of the court in striking reference to Ordinance No. 611 from appellants' answer, was not waived by the filing of an amended answer. (C. S., sec. 6879; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; Steinour v. Oakley, 32 Idaho 91, 171 P. 843; Corcoran v. Sanora Min. & Mill. Co., 8 Idaho 651, 71 P. 127.)

A. H. Oversmith and A. L. Morgan, for Respondent.

Error, if any, in striking from appellant's affirmative answer all reference to Ordinance No. 611 of the city of Moscow was waived by filing an amended answer. (Colgrove v. Hayden Lake Irr. Dist., 40 Idaho 489, 235 P. 434; Havlick v. Davidson, 15 Idaho 787, 100 P. 91; Brown v. J. I. Case Plow Works, 9 Kan. App. 685, 59 P. 601; Robertson v. Christensen, 90 Kan. 555, 135 P. 567.)

In this case the answer by the witness, Arthur Crossler, "He said there was no use to report it their insurance would take care of it," disclosed an admission of liability on the part of one of the defendants and was competent testimony, therefore the request that the court declare a mistrial was properly denied. (Rowe v. Rennick, 112 Cal.App. 576, 297 P. 603, and authorities therein cited.)

Even if the Arthur Crossler testimony above had been incompetent it would not justify the court in granting appellants' motion. (Letcher v. Skiver, 99 Okla. 269, 226 P. 1029, and authorities therein cited; Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 P. 99.)

BUDGE, J. Lee, C. J. and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

This action was brought by respondent against appellants seeking to recover damages for injuries sustained as a result of a collision occurring May 7, 1930, between a truck driven by the son of respondent and a truck driven by appellant, Kenneth Campbell, an employee of appellant, Safeway Stores, Inc. The cause was tried by the court and a jury and verdict was rendered in favor of respondent for $ 4,500 and judgment was entered thereon, from which judgment this appeal is taken.

The answer to the complaint herein contained, among other things, an affirmative defense of contributory negligence based upon a violation by respondent of the traffic ordinances of the city of Moscow, such traffic ordinances being attached to said answer as an exhibit. A motion to strike such affirmative defense, made by respondent, was sustained by the trial court, to which ruling appellants excepted and now assign as their first specification of error. Respondent, however, seeks to make the point that conceding appellants' position to be correct and that the trial court erred in striking all reference to said ordinance as well as other matters connected therewith from appellants' answer, such ruling of the court is not subject to review for the reason that appellants thereafter filed an amended answer and thereby waived any objection to such ruling. However after such ruling, and evidently in an endeavor to comply therewith, although we deem it an unnecessary act, appellants filed what is designated as "amended answer," which, for all practical purposes, is nothing more than the original answer with the parts deleted that were ordered stricken by the court. In view of this situation and the rule announced in Warren v. Stoddart, 6 Idaho 692, 59 P. 540, there is no merit in respondent's contention.

Accordingly we proceed to review such ruling. The collision occurred in the vicinity of what is known as Hays Hall, a girls' dormitory at the University of Idaho, within the city of Moscow, which faces west on Blake Avenue, a public street of said city. Extending east from Blake Avenue along the south side of Hays Hall is a driveway which, when it reaches the southeast corner of the building, where the collision occurred, turns to the north and extends along the east side of the building. With respect to the character of the driveway it is alleged in the complaint and admitted by appellants: "that the University of Idaho caused a private driveway to be constructed on the south east side of the said Hays Hall for the convenience of the public and for the convenience of the uses for which said Hays Hall is and was used, and that such driveway has been, at all times herein mentioned, used by the public with the consent and invitation of the owner for the purpose of delivering food products and other merchandise to said Hays Hall, and that the plaintiff was using such driveway on the 7th day of May, 1930."

The affirmative defense ordered stricken contained the traffic ordinances of said city, section 16 thereof providing:

"It shall be unlawful for any person to be upon the running board or upon any other place on the outside of any motor vehicle, while such vehicle is in motion; and it shall be unlawful for the operator of any such motor vehicle to allow or permit any person to so be upon such places on such vehicle while it is in motion. . . ."

And allegations to the effect that respondent was riding on the running-board on the outside of the truck driven by his son, which allegations were evidently intended as the basis for proof of violation of a city ordinance and showing of contributory negligence thereby.

By the motion to strike, the question was presented as to whether or not the use of motor vehicles upon said driveway was subject to regulation by the traffic ordinances of the city of Moscow. It is apparent from the admitted allegations of the complaint, quoted above, that the driveway in question was a private one but used by the public with the consent and invitation of the owner. A similar situation received careful consideration by the supreme court of Massachusetts in the case of Commonwealth v. Gammons, 40 Mass. 201, 23 Pick. 201, where it is said:

"The single question presented here is, whether the place where the complainant and the defendant met, at the time of the collision, was a road, within the meaning of the statute. It appears that the place in question had not been laid out either as a highway or a town-way, and that the public had no rights in it, except by sufferance of the owners. . . . The term 'road' is not necessarily limited to a public way; and there is nothing in the reason or purposes of that law, from which such a limitation can be implied. The object of the law is to prescribe a rule of conduct, for the convenience and safety of those, who may have occasion to travel and actually travel with carriages, on a place adapted to and fitted for travel, and actually used for that purpose by a public laying out or by the dedication of the owners, or the actual permission and license of the owners, for the time being. . . . The same reason applies to private roads actually used, as to public roads, that is, roads to which the public have a permanent right, by laying out by...