Fenton v. Aleshire

• Decision Date: 17 June 1964
• Citation: 393 P.2d 217,78 Or.Adv.Sh. 1025,238 Or. 24
• Parties: Howard FENTON, as Administrator of the Estate of Claudia Fenton, a minor, deceased, Respondent, v. Ronald L. ALESHIRE, by his Guardian adlitem, Marian Danforth, and William A. Sabel, Appellants.
• Court: Oregon Supreme Court

Page 217

393 P.2d 217

238 Or. 24

Howard FENTON, as Administrator of the Estate of Claudia Fenton, a minor, deceased, Respondent, v. Ronald L. ALESHIRE, by his Guardian adlitem, Marian Danforth, and William A. Sabel, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted May 1, 1964.

Decided June 17, 1964.

Carrell F. Bradley, Hillsboro, argued the cause and filed briefs for appellants.

Sol Siegel and Dwight L. Schwab, Portland, argued the cause for respondent. On the brief were Goldsmith, Siegel & Goldsmith, and Hutchison, Schwab & Burdick, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN, and LUSK, JJ.

LUSK, Justice.

On October 27, 1961, Claudia Fenton, a girl eight years of age, was struck by an automobile driven by the defendant, Ronald L. Aleshire, and owned by the defendant William A. Sabel. She sustained injuries which resulted in her death. In an action brought by the administrator of the young girl's estate to recover damages for wrongful death, the jury returned a verdict for the defendants. Thereafter the court, on motion of the plaintiff, entered an order setting aside the verdict and granting a new trial. This appeal is from that order.

The accident occurred a short time after five o'clock in the afternoon; it was raining hard, it was dark, and visibility was poor. Automobiles were being driven with their lights on. The defendant was driving in an easterly direction on Southwest Parkway in a suburb of Portland. Southwest Parkway is intersected in irregular fashion by Southwest Tremont on the north, and Southwest Edgewood on the south. At the southeast corner of this intersection are the building and playground of a public school. On the Southwest Parkway side the playground is elevated a few feet above the level of the street.

The defendant Aleshire, according to his testimony, was driving at a speed of fifteen to twenty miles per hour, and had passed through this intersection when he saw the decedent, apparently coming from the playground, about four feet from the right side of his car. Aleshire testified:

'Well, I saw her running off the bank and just like that she was in front of me, and I turned away to the right, trying to miss her, and I hit the brakes at the same time; when the car hit her, she spun off to the left.'

Aleshire further testified that the little girl was looking towards the east as she ran, that is, in the direction away from his car, and that she was struck by the left front headlight of the car.

The court assigned the following grounds for its order granting a new trial:

'1. The court erred in instructing the jury on unavoidable accidents.

'2. The court erred in instructing the jury on sudden emergency.

'3. The court erred in allowing defense counsel to argue statements of law to the jury which in the court's opinion were not applicable and could well have been misleading.

'4. The court erred in instructing the jury on negligence per se without limiting such instruction to the defendants.'

We will consider first the third ground, improper argument to the jury. The italicized language in the following portion of the closing argument of counsel for the defendants is the basis of the ruling:

'* * * Mr. Schwab [counsel for the plaintiff] and I, we are again on a point of agreement, I agree with him that it is the law that in the event you should not accept our theory of the case, that damages would be for the net value of her estate at the time of her death, I mean, assuming that she lived out her life expectancy, there can be no compensation for counsel [sic] to console the parents or for their grief or any pain or any suffering of the deceased, and there's a reason for that rule and one reason being that the parents are given by statute another lawsuit, that they may bring the lawsuit for the loss of services of the child, and so, out of an accident where there's some fault, there can be in fact usually two lawsuits, one brought by the estate for pecuniary loss, assuming she had lived, and the other, the loss of services by the parents. Now, I don't know who is to say what we are to assume by a child that's eight years old, and assume what they would have saved had they lived another 60 years. People become ill, they have a fatal accident, they get married and never work, and never save, others are very frugal, they don't get married and they do save and they work very hard and they pay it out all in taxes, clothes, and so to me it is the worst kind of an assumption and one that I will not indulge in, and I feel if the matter gets to that point, and I hope it doesn't, but if it does, that your assumptions surely will be as valid as any that I could make or any that Mr. Schwab could make.'

Before the final arguments, counsel for defendants had informed the court that he intended to argue the italicized matter to the jury. Counsel for plaintiff objected and the court, without deciding the question, warned counsel for the defendants that it might constitute error, and allowed the plaintiff, in advance, an exception to such argument, if it should be made, so as to avoid the necessity of an interruption during the argument.

We agree with the court below that permitting the argument was error. Whether the parents of the deceased child had a cause of action for loss of services was wholly irrelevant to the issues for the determination of the jury: negligence of the defendant; contributory negligence of the deceased; proximate cause and damages.

That the statement was prejudicial we have no doubt. Made, as it was, in connection with counsel's argument as to the speculative nature of the claim for damages in a death case involving the death of an eight year old child, its natural tendency was to plant in the jury's mind the idea that they should allow no damages because the parents might recover in a different lawsuit brought for the loss of their child's services. We do not impute to counsel for the defendants a bad motive, but the best intentions could not neutralize the harmful effect of what he said. An argument of this kind can be just as prejudicial to a plaintiff as the wrongful injection of insurance into the trial can be to a defendant.

Hubbard v. Lamford Lbr. Co., Inc., 209 Or. 145, 150-151, 304 P.2d 943, relied on by the defendants is not controlling. There we affirmed the ruling of the trial court which sustained an objection to an improper argument to the jury on damages by counsel for the plaintiff and observed that in any event the ruling was not reversible because the verdict was for the defendant. Whatever may have been the propriety of the dictum in the context of that case, here we are dealing with an improper argument which, for all we know, may well have influenced the jury to find that, regardless of the questions of negligence and contributory negligence, no damages under the rule peculiar to such cases as this had been established by the evidence.

The defendants suggest that the point was waived by failure of the plaintiff to object at the time the argument was made. It is true that in Nielsen v. Brown, 232 Or. 426, 430, 374 P.2d 896, we indicated that the trial judge is not required to rule on a hypothetical state of affairs. But this is an appeal from an order granting a new trial for prejudicial error. In such a case it is immaterial on review whether a proper objection or any objection was made, Strandholm v. General Const. Co., 235 Or. 145, 152, 382 P.2d 843.

The court did not err in instructing the jury on sudden emergency. The emergency doctrine, as applied in automobile accident cases, was thus stated by Mr. Justice Brand in Frangos v. Edmunds, 179 Or. 577, 607, 173 P.2d 596:

'* * * When a driver finds himself confronted by an emergency constituting an imminent and impending danger and alternative means of escape from collision are presented so that it becomes a matter of judgment as to what course to follow, he will not be liable for a mistake in judgment if he acted with such care and prudence as a reasonable person would exercise in such an emergency. This is true even though the choice he makes is not such as a reasonable person with ample opportunity for deliberation would make. The rule is always subject to the limitation that a person cannot avail himself of the emergency doctrine if the emergency arose by reason of his own negligence. A review of our decisions will disclose that the emergency doctrine ordinarily applies only when the evidence discloses that alternative action is possible and that quick judgment is required (citations omitted).'

According to the defendant Aleshire's testimony, he was confronted with an emergency not brought about by his own negligence when the little girl ran suddenly in front of his car. He applied his brakes and turned to the right. The only element of the rule which arguably is lacking is a choice of alternative courses. We think, however, that it might be properly contended that Aleshire could have avoided the accident by turning to the left instead of to the right and that, therefore, the instruction was applicable. See Raz v. Mills, 231 Or. 220, 227, 372 P.2d 955.

The court gave the jury the following instruction:

'Now, the law recognizes that some accidents are unavoidable. An accident may happen and a party may be injured without negligence on the part of any of the parties. If any accident occurs which is unavoidable as far as the parties are concerned, and one in which none of the parties were negligent, then the injured party cannot recover as no negligence has been proved. An unavoidable accident is a happening to which human fault does not contribute; therefore, the defendant may not maintain the defense of unavoidable accident if the failure to use ordinary care has contributed, no matter how slightly, as a proximate cause of the occurrence. * * *'

We have re-examined the question and have reached the conclusion that the instruction on...