French v. Tebben

• Decision Date: 07 November 1933
• Docket Number: 5948
• Citation: French v. Tebben, 53 Idaho 701, 27 P.2d 474 (Idaho 1933)
• Parties: W. P. FRENCH and SOPHIE K. FRENCH, Husband and Wife, Respondents, v. J. W. TEBBEN and DOLLIE TEBBEN, Husband and Wife, Appellants
• Court: Idaho Supreme Court

27 P.2d 474

53 Idaho 701

W. P. FRENCH and SOPHIE K. FRENCH, Husband and Wife, Respondents, v. J. W. TEBBEN and DOLLIE TEBBEN, Husband and Wife, Appellants

No. 5948

Supreme Court of Idaho

November 7, 1933

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County.Hon. Adam B. Barclay, Judge.

Action for personal injuries.From a judgment for plaintiffs and an order denying a new trial, defendants appeal.Reversed and new trial granted.

Motion to dismiss the appeal denied, judgment against appellants and order refusing a new trial reversed, and a new trial granted.Costs awarded to appellants.Petition for rehearing denied.

James R. Bothwell and Vaughn A. Price, for Appellants.

The burden is not upon defendant to establish contributory negligence if such contributory negligence be shown by the evidence introduced by plaintiff, and in a case where any inference of plaintiff's contributory negligence can be drawn from the evidence of plaintiff the jury should be so instructed.(Bryant v. Hill,45 Idaho 662, 264 P 869;Denver City Tramway Co. v. Gustafson,21 Colo App. 478, 121 P. 1015.)

A gratuitous guest may not recover for his host's negligent operation of an automobile if, conscious of apparent danger or faced with such conditions and circumstances as would herald danger to a reasonably prudent man, he fails opportunely, timely, efficiently, and/or effectively to protest and acquiesces therein, and whether or not the guest protested, and whether or not such protest, if any, was timely, opportune, efficient and/or effective under the circumstances is a question for the jury upon which they must be properly instructed before they can determine whether or not the guest exercised due care for his safety.(Dale v Jaeger,44 Idaho 576, 258 P. 1081;Dillon v. Brooks,51 Idaho 510, 6 P.2d 857;McCoy v. Krengel,52 Idaho 626, 17 P.2d 857;Sharp v. Sproat, 111 Kan. 735, 208 P. 613, 26 A. L. R. 1421.)

Turner K. Hackman, for Respondents.

Appellants' assignments of error numbered I, II, V, VI and VIII cannot be considered by this court, for the reason that this is an action instituted by a "guest," and is governed by Idaho Session Laws, 1931, chapter 135, which limits a "guest" to recovery where a complaint charges and the evidence establishes the fact that the "owner or operator" has been guilty of "gross negligence" or a "reckless disregard of the rights of others."

Under such circumstances where "gross negligence" or a "reckless disregard of the rights of others," as distinguished from "ordinary care," is involved, contributory negligence is not a defense.(Hawks v. Slusher,55 Ore. 1, 104 P. 883, Ann. Cas. 1912A, 491;Harrington v. Los Angeles Ry. Co.,140 Cal. 514, 74 P. 15, 98 Am. St. 85, 63 L. R. A. 238;Indianapolis & C. R. Co. v. McClure, 26 Ind. 370, 89 Am. Dec. 467, 470.)

WERNETTE, J. Givens and Holden, JJ., concur, Morgan J., concurs in the conclusion.Budge, C. J., dissents.

OPINION

WERNETTE, J.

From a judgment in favor of plaintiffs, in an action for personal injuries, and order overruling motion for new trial, defendants have appealed.

The injuries sustained by plaintiff, Sophie French, were the result of an automobile accident which occurred about 7 o'clock in the evening of October 30, 1931, At the time of the accident the plaintiff was riding in a Buick sedan, owned and operated by defendant, Dollie Tebben, and in which the two women were returning to Twin Falls from a trip to Burley.

While proceeding along the main highway, in a westerly direction, at a speed of about 70 miles an hour, the defendant attempted to pass a Chrevolet truck, which was traveling in the same direction, when the highway was not free from oncoming traffic, and in doing so collided with a Ford automobile proceeding in an easterly direction.The operator of the Ford automobile, at the time, was driving in a reasonable and safe manner.

It was the plaintiffs' contention that the defendant, Mrs. Tebben, at the time of the accident, was operating the car in a grossly negligent manner, in that she attempted to pass the truck traveling in the same direction when the highway was not free from oncoming traffic, and at a highly excessive and grossly negligent rate of speed; defendant giving no heed when asked by the plaintiff, prior to the accident, to lessen her speed.The plaintiff testified on this point as follows:

A."As we got over the railroad track this side of Murtaugh there was a Ford bug coming--I don't know whether it was a bug or not, it was a Ford passed us--and Mrs. Tebben said, 'Look at that Ford go'; and she said, 'Watch me catch it.'She said, 'I never tried this Buick out before,' and she started after it; and I said 'Tebben, don't go fast,' and she kept on going and I still kept pleading with her, 'Please don't go so fast,' and she kept on going, and after we got over the bridge she passed this Ford and after we got in between the bridges I said, 'Tebben, please don't go so fast,' and I put my hand on her shoulder and I said, 'Please, Tebben, don't go so fast . . . . and all the time I was watching the speedometer, and I said, 'Tebben you are going seventy miles an hour'; and she said, 'Yes, I can go eighty'; and I said, 'You will kill us,' . . . ."

The plaintiff contended further that she was riding as a guest in defendants' automobile, and that as defendant, Dollie Tebben, was operating the same in a grossly negligent manner the plaintiff was entitled to recover under the provisions of section 48-901, I. C. A., as follows:

"No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation shall have a cause for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his gross negligence or his reckless disregard of the rights of others."

On the other hand the defendants denied that defendant had driven the car in a grossly negligent manner, or that plaintiff was riding in the car as a guest; and as an affirmative defense set forth that the plaintiff herself was contributorily negligent.

The case was tried to a jury and judgment was rendered for the plaintiffs, and damages assessed at $ 2,100.

A number of substantial propositions of law have been submitted by assignments of error of appellants for consideration and determination.

In the answer of appellants is set forth an affirmative defense, wherein appellants allege in general allegations that respondent, Sophie French, was guilty of contributory negligence; therefore not entitled to recover.Respondents did not file a demurrer on the ground of uncertainty to such affirmative defense, but now on appeal claim that appellants have no right to avail themselves of the defense for the reason that such defense was not sufficiently pleaded; appellants not having specifically set forth the specific acts in which it was claimed respondent was negligent, which contributed to her injury.This objection on the part of respondents is not well taken.The defense of contributory negligence, when pleaded by way of general allegations, is sufficient to raise the issue when not attacked by demurrer for uncertainty.Especially is that true when the trial is conducted upon the theory that contributory negligence is in issue and is to be considered as a defense, and when the parties request instructions thereon.(Strand v. Everett,84 Cal.App. 358, 258 P. 115;Hicks v. Cramer,85 Colo. 409, 277 P. 299;Sand Springs Ry. Co. v. Woods,95 Okla. 179, 217 P. 363;Wallace v. Portland Ry., Light & Power Co.,103 Ore. 68, 204 P. 147;Brown v. Seattle City Ry. Co.,16 Wash. 465, 47 P. 890.)

Respondents take the further position that the defense of contributory negligence is not available to appellants in this case for the reason that under the authorities, where "gross negligence" or a "reckless disregard of the rights of others," as distinguished from "ordinary care," is involved, contributory negligence is not a defense; citing numerous authorities in support of their position.As heretofore stated, however, both parties presented and tried this case in the lower court upon the theory that contributory negligence was a defense.Each of the parties on the trial below requested specific instructions relative to contributory negligence, some of which were given, and in this court for the first time respondents urge the proposition that the plea of contributory negligence is not a defense.Such conduct is not permissible.Litigants must present the issues in this court on the same theory they were presented in the lower court, and are not permitted to present an issue on one theory before the trial court and then attempt to change such theory before the appellate court.(Peterson v. Universal Automobile Ins. Co.,ante, p. 11, 20 P.2d 1016, and cases therein cited.)Consequently the defense of contributory negligence is in issue before this court for consideration.

The court instructed the jury, among other things, regarding the burden of proof of the respective parties as to the issues framed, as follows:

"The burden of proving the affirmative defense set out in the answer of the defendants is upon them and you should require the defendants to establish, by a fair preponderance of the evidence, such allegations."

Appellants contend that said instruction does not correctly state the law; that where the defense of contributory negligence is in issue the burden is not upon the defendants to establish contributory negligence if such negligence be shown by the evidence introduced by plaintiffs; and in a case where any inference of plaintiff's...