Curtis v. Curtis

• Decision Date: 13 July 1937
• Docket Number: 6405 and 6406
• Citation: Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369 (Idaho 1937)
• Parties: K. A. CURTIS, Guardian Ad Litem of JEANINE CURTIS, a Minor, and K. A. CURTIS and ALICE CURTIS, Respondents, v. PAULINE CURTIS, Appellant, and K. A. CURTIS and ALICE CURTIS, Respondents, v. PAULINE CURTIS, Appellant
• Court: Idaho Supreme Court

70 P.2d 369

58 Idaho 76

K. A. CURTIS, Guardian Ad Litem of JEANINE CURTIS, a Minor, and K. A. CURTIS and ALICE CURTIS, Respondents, v. PAULINE CURTIS, Appellant, andK. A. CURTIS and ALICE CURTIS, Respondents, v. PAULINE CURTIS, Appellant

Nos. 6405 and 6406

Supreme Court of Idaho

July 13, 1937

AUTOMOBILES-INJURIES TO GUEST-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-EVIDENCE-INSTRUCTIONS.

1.Plaintiff's testimony in action for injuries to guests in automobile driven by defendant that defendant told her son in telephone conversation heard by witness that she had fallen asleep while driving was not incompetent as hearsay or conclusion.

2.Evidence in action for injuries to guests in automobile driven by defendant that defendant did all driving on continuous trip from noon until about 4 o'clock on following morning, except for short periods when gasoline and food were procured, and that automobile left highway and collided with tree without apparent cause, was sufficient to warrant submission to jury of question of defendant's gross negligence or reckless disregard of plaintiff's rights.(I. C. A., sec. 48-901.)

3.An instruction to find for plaintiffs in action for injuries to guest in automobile driven by defendant if jury found from evidence that one plaintiff received injuries as proximate result of defendant's gross negligence or reckless disregard of such plaintiff's rights was not erroneous as stating in substance that defendant was grossly negligent, in view of other instructions.(I. C. A., sec. 48-901.)

4.An instruction to find for defendant in action for injuries to guests in automobile driven by defendant, if jury found that defendant's act in momentarily going to sleep was only act that caused accident, was properly refused as incorrect it being necessary for jury to determine circumstances under which such act occurred.

5.Ordinarily, question whether automobile passenger, going to sleep, exercised ordinary care for his own safety is one of fact for jury.

6.Appellant has no cause for complaint of trial court's instruction stating rule announced by authorities cited by appellant.

APPEALS from the District Court of the Eighth Judicial District, for Kootenai County.Hon. Bert A. Reed, Judge.

Actions for damages for personal injuries.Judgments for respondents.Affirmed.

Affirmed.Costs awarded to respondents.

Whitla & Knudson, for Appellant.

The plaintiff failed to establish that the defendant was guilty of either "gross negligence" or "reckless disregard," the only evidence upon which the plaintiffs rely as a cause of action is the momentarily going to sleep on the part of the defendant.(Boos v. Sauer et al.,266 Mich. 230, 253 N.W. 278;Caplan v. Caplan,213 Iowa 646, 239 N.W. 682;De-Shetler v. Cordt,43 Ohio App. 236, 183 N.E. 85;Wilde v. Griffel,214 Iowa 1177, 243 N.W. 159;Rode v. Roberts, 11 Cal.App.2d 638, 54 P.2d 498.)

The plaintiff, Alice Curtis, is not entitled, as a matter of law to recover any amount by reason of the contributory negligence on her part in that she slept for a considerable distance prior to, and was sleeping at the time of, the accident.(Oppenheim v. Barkin,262 Mass. 281, 159 N.E. 628, 61 A. L. R. 1228.)

The objection to the testimony of the plaintiff quoting a telephone conversation of the defendants, should have been sustained on the grounds that it is incompetent and a conclusion.(Cooper v. Kellogg, (Cal. App.)31 P.2d 797, and also 32 P.2d 685.)

Robt.H. Elder, for Respondents.

It is generally held that evidence indicating that a vehicle driven by the host left the highway without apparent cause and collided with a tree or other object near or along the highway thereby injuring the guest raises the question of the host's gross negligence that must be determined by the jury.(Anderson on an Automobile Accident Suit, sec. 821;Blood v. Adams,269 Mass. 480, 169 N.E. 412;Evans v. Caldwell,45 Ga.App. 193, 163 S.E. 920;Abbott v. Cavalli,114 Cal.App. 379, 300 P. 67;Dzura v. Phillips,275 Mass. 283, 175 N.E. 629;Kirby v. Keating,271 Mass. 390, 171 N.E. 671Zelinsky v. Howe, 163 Wash. 277, 1 P.2d 294.)

Whether passenger in automobile exercised ordinary care for his own safety is a question of fact, which must be submitted to the jury.(Goure v. Storey,17 Idaho 352, 105 P. 794;Carscallen v. Coeur d'Alene etc. Transp. Co., 15 Idaho 444, 98 P. 622, 16 Ann. Cas. 544;Hard v. Spokane International Ry. Co.,41 Idaho 285, 238 P. 891;Staab v. Rocky Mt. Bell Tel. Co.,23 Idaho 314, 129 P. 1078;Kelly v. Troy Laundry Co.,46 Idaho 214, 267 P. 222.)

BUDGE, J. Morgan, C. J., and Holden and Givens, JJ., concur.Ailshie, J., did not sit at the hearing nor participate in the decision.

OPINION

BUDGE, J.

--Alice Curtis, respondent, and her fourteen months old daughter, Jeanine Curitis, riding as guests in the automobile owned and driven by Pauline Curtis, appellant, left Portland, Oregon, at about noon on May 21, 1935, for Coeur d'Alene, Idaho.About 4 o'clock in the morning of May 22, 1935, after a continuous trip from Portland, except for occasional short rests, appellant in some manner, about one and one-half miles from Ross Point, in Kootenai county, drove the automobile from highway number 10 across a ditch alongside the road and struck a tree with the result that Alice Curtis and Jeanine Curtis were injured.The two cases involved in this appeal, the injuries complained of being the result of the same accident, were consolidated for trial.The jury returned a verdict in favor of Alice Curtis in the amount of $ 1,000, and a verdict in favor of K. A. Curtis as guardian ad litem for Jeanine Curtis in the amount of $ 4,000.There-after motions for judgment notwithstanding the verdict and for new trial were filed, which were denied by the court and judgments were entered in the amounts hereinbefore recited.A motion for nonsuit made at the close of respondent's case and renewed at the close of the entire case was denied.This appeal is from the judgments, and from the orders denying motions for new trial, judgment notwithstanding the verdict, and nonsuit.

Under the specifications of error appellant presents three main arguments--first, that no gross negligence was shown; second, that certain instructions were prejudicial, and third, that respondentAlice Curtis may not recover by reason of contributory negligence.

With reference to the first point appellant urges that there was no admissible evidence introduced to support and allegation of "gross negligence" or "reckless disregard" on the part of appellant, for the reason that respondents' case is based upon a purported telephone conversation between appellant and her son, which respondent, Alice Curtis, over appellant's objection, was permitted to relate.With reference to the particular conversation involved the following is disclosed by the record:

"Q.Now, Mrs. Curtis, did you ever hear the defendant, Mrs. Pauline Curtis, talk about this accident?

"A.Well, I did hear a telephone conversation between her and her son.I heard her side of it.

"Q.What did she say?

"By Mr. KNUDSON: Objected to as incompetent, irrelevant and immaterial what the telephone conversation was, the defendant not being present there.

"By Mr. ELDER: The defendant was present.

"By the COURT: The conversation was between the defendant and her son.Objection overruled, that is, if it pertains to this case.

"By Mr. ELDER: (Q.)What did she say?

"A.Well, she mentioned in the beginning of the conversation that the believed she had fallen asleep and she ended up by saying she had fallen asleep."

This conversation between appellant and her son was not hearsay.It was a statement made by appellant to her son and made in the presence of and within the hearing of the witness, specifically pertaining to the accident, and was therefore not incompetent or was it a statement or a conclusion of the witness.

Appellant's son testified that in the telephone conversation with him appellant said she was sleepy and thought she dozed off, hit the soft sand and it pulled her into the tree.Appellant testified that she did not know how it happened, that she just didn't "remember much about it" and stated "I was very tired driving all night.In going out of Ross Point was very very tired."It appears without conflict that appellant did all the driving in a continuous trip starting at noon and continuing through the afternoon and night until approximately 4 o'clock in the morning, when the accident occurred, the trip being interspersed with only short rest periods when gasoline and food were procured.Such evidence, together with the fact that the automobile left the highway and collided with the tree without apparent cause sufficiently raised the question of appellant's gross negligence or reckless disregard to warrant the submission of such question to the jury under proper instructions.(I. C. A., sec. 48-901;Blood v. Adams, 269 Mass. 480, 169 N.E. 412;Ryan v. Scanlon, 117 Conn. 428, 168 A. 17;Potz v. Williams, 113 Conn. 278, 155 A. 211;Bushnell v. Bushnell, 103 Conn. 583, 131[58 Idaho 81] A. 432, 44 A. L. R. 785;Abbott v. Cavalli, 114 Cal.App. 379, 300 P. 67.

It is urged that the court erred in giving...