Fossum v. Zurn

• Citation: 78 S.D. 260,100 N.W.2d 805
• Decision Date: 30 January 1960
• Docket Number: No. 9781,9781
• Court: Supreme Court of South Dakota
• Parties: Odin FOSSUM, Administrator of the Estate of Gordon Fossum, Deceased, Plaintiff and Respondent, v. Harold ZURN, d/b/a Zurn Hatchery, Defendant and Appellant.

Page 805

100 N.W.2d 805

78 S.D. 260

Odin FOSSUM, Administrator of the Estate of Gordon Fossum Deceased, Plaintiff and Respondent, v. Harold ZURN, d/b/a Zurn Hatchery, Defendant and Appellant.

No. 9781.

Supreme Court of South Dakota.

Jan. 30, 1960.

Gene E. Pruitt, Acie W. Matthews, Sioux Falls, for defendant-appellant.

Samuel W. Masten, Canton, for plaintiff-respondent.

RENTTO, Judge.

This litigation was brought to recover for the wrongful death of Gordon Fossum resulting from an intersectional automobile collision. The verdict was in favor of the plaintiff. In answers to special interrogatories the jury found plaintiff's damage to be in the sum of $20,000 and that decedent's own contributory negligence was 10% of the total combined negligence proximately causing his injuries and the defendant's negligence was 90% of this total. Accordingly, the jury under our comparative negligence law reduced plaintiff's damages in this proportion and awarded him $18,000 for which judgment was entered. Defendant's motion for judgment notwithstanding the verdict was denied. This appeal is from both such judgment and order.

Defendant claims that the court committed prejudicial error in not permitting him to tell the jury about the alcoholic content of a blood sample taken from the plaintiff's decedent as revealed by a chemical analysis thereof, until the reliability of such test had been established. He also contends that his motion for judgment notwithstanding should have been granted because (1) the plaintiff's decedent as a matter of law was guilty of contributory negligence more than slight which under our law would deny him recovery, and (2) since the alcoholic content of decedent's blood was .15% he was operating his motor vehicle while under the influence of intoxicating liquor and was contributorily negligent to an extent more than slight as a matter of law, and (3) contributory negligence of 10% is more than slight as a matter of law.

In support of his defensive claim of contributory negligence defendant alleged, among other things, that plaintiff's decedent operated his motor vehicle while in an intoxicated condition. Plaintiff had learned that a sample of his decedent's blood had been taken from his body by a physician who was directed to do so by the sheriff, without any other person's consent, some three hours after his death and that the state chemist's analysis showed it to have an alcoholic content of .15% by weight. Anticipating that this test would be placed before the jury, plaintiff, before the prospective jurors were examined, moved that evidence of its materiality and admissibility be presented to the court before such fact was injected in any manner before the jury.

Because of the circumstances under which the sample of blood was taken the trial judge indicated that he had grave doubts as to the reliability of the test and directed that no mention of it be made in defendant's opening statement or while plaintiff was presenting his case. He further suggested that evidence be presented to him as to the validity and authenticity of such test before the result was mentioned to the jury. He said this should be done before completion of plaintiff's case. Defendant was given permission to make an additional opening statement concerning this matter, if, after the court had heard such evidence he was satisfied of its admissibility.

Concerning the conduct of civil jury trials, SDC 33.1307 so far as here material provides:

'In civil jury cases the jury shall first be selected and sworn, and the trial shall then proceed in the following order, subject to the right of the Presiding Judge, for good cause shown, otherwise to direct the order of statements, proof, and argument:

'(1) The plaintiff or party having the burden of proof shall state the issues and the general nature of the evidence he expects to produce in substantiation of the issues by stating what he claims the issuable facts to be without argument and without naming or identifying any particular witness or exhibit by which he expects to prove any of such issuable facts;

'(2) The defendant or party not having the burden of proof shall then state the issues and the general nature of the evidence he expects to produce in substantiation of the issues by stating what he claims the facts to be, without argument and without naming or identifying any particular witness or exhibit by which he expects to prove any of such issuable facts;'

While this is a more detailed statement of the contents of an opening statement than was formerly provided by our law, its purpose and object is still merely to assist the jury to understand the evidence as it is introduced and the bearing it has on the issues involved. Egan v. Dotson, 36 S.D. 459, 155 N.W. 783. It should not be a detailed statement of the evidence by which counsel expects to prove the facts of his case. Under our statute a party makes known the general nature of his evidence by stating what he claims the issuable facts to be.

In approaching the problem presented we start from the premise that obviously one may not in his opening statement refer to matters that are inadmissible and where such is done the court has the right to interfere. See Wigmore on Evidence, 3d Ed., § 1808. In this area the trial judge is clothed with some measure of discretion. 53 Am.Jur., Trial, § 455; 88 C.J.S. Trial § 161; Abbott's Civil Jury Trials, 5th Ed., § 97 and Bower's Judicial Discretion of Trial Courts § 281. He does not have to be absolutely convinced of its inadmissibility but may properly take action if he has serious doubt concerning it.

Nor must he wait until the questionable matter is referred to in the opening statement if it is sooner called to his attention. At the 1959 Institute for California Judges the panel on 'Preliminary Matters and Trial Proceedings' strongly supported the view that a trial judge should pretry questions as to the admissibility of evidence that would arise during the trial. Cal.L.Rev. Vol. 47, p. 703. If the questioned evidence is inadmissible this method avoids the injection of prejudicial matter into the trial while the other course leads either to a mistrial or an admonition to disregard--the efficacy of which is questioned by many respected members of the bench and bar. Which course the trial judge follows is a matter committed to his discretion.

Before plaintiff's case was completed the court held an evening session, without the jury, at which defendant's expert witness testified at length concerning the validity of the test in question. This satisfied the court of its reliability and it later became a matter in evidence on the defendant's case without any additional opening statement being made. The correctness of its admission is not presented by this appeal. That the court's original doubt was not confirmed does not, in our view, render his first ruling an abuse of discretion. It is manifest in the record that when this matter was first brought to his attention he entertained serious and genuine misgivings as to its validity. His effort to insure a fair trial did not deprive the defendant of a fair trial.

In considering defendant's next contention we must accept that version of the evidence that is most favorable to the plaintiff. This means that every controverted fact, of which there are few in this record, must be resolved in favor of the successful party and he must also be given the benefit of every favorable inference that can fairly be drawn from the evidence. Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410. The record establishes that defendant Zurn on May 7, 1958 was using his personal automobile, a 1957 four-door Dodge Sedan, to make deliveries of baby chicks and feed. It was a clear day and the roads were dry. On the trip in question he was alone but had two 50-pound bags of feed on the floor of the right front seat and on the seat to his right had a pile of three cardboard cartons containing baby chicks. Each of these was about 18 inches wide, 22 inches long and about 7 1/4 inches deep. The top of these was about half way up the window on the righthand side. Zurn was little of stature being only 5 feet 7 inches tall. He was driving south in Lincoln County on a one-lane graveled township road whose traveled portion is about 20 feet in width. The accident occurred at the intersection where this road crosses the Klondike road, a county road running east and west and which is a two-lane graveled road with a traveled portion about 26 feet wide. The decedent, also alone in his car, was traveling east on this latter road. The accident happened between 5:15-5:30 p. m. and resulted in the almost instantaneous death of plaintiff's decedent.

The township road in question is crossed by a railroad about 1,335 feet north of the intersection in which the collision took place. When Zurn went over the railroad crossing going south he was traveling about 30 miles per hour. At that point he observed a car coming from the west on the Klondike road about three blocks west of the intersection. This was to his right. He was not able to estimate its speed. His view to the west was unobstructed except for the cardboard cartons in the front seat, but he did not look that way again until he was...