Fruit v. Schreiner

• Decision Date: 20 October 1972
• Docket Number: 1546,Nos. 1526,s. 1526
• Citation: 502 P.2d 133
• Parties: Clay FRUIT, Appellant, v. John E. SCHREINER, Appellee. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. John E. SCHREINER, Appellee.
• Court: Alaska Supreme Court

Page 133

502 P.2d 133

Clay FRUIT, Appellant, v. John E. SCHREINER, Appellee.

The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. John E. SCHREINER, Appellee.

Nos. 1526, 1546.

Supreme Court of Alaska.

Oct. 20, 1972.

Rehearing Denied to No. 1546 Nov. 3, 1972.

Arden E. Page, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant Fruit.

John M. Conway, of Atkinson, Conway, Young & Bell, Anchorage, for appellant Equitable Life Assur. Soc. of United States.

Lester W. Miller, Jr., of Kay, Miller & Libbey, John Anthony Smith, Anchorage, for appellee.

OPINION

Before BONEY, C. J., and RABINOWITZ, CONNOR and BOOCHEVER, JJ.

BOOCHEVER, Justice.

This case arises from a tragic accident in which the appellee, John Schreiner, was crushed between his parked automobile and the colliding vehicle owned and driven by the appellant, Clay Fruit. As a result of the accident, Schreiner's left leg was amputated and the muscle tissue of the right leg so destroyed as to leave him crippled and permanently disabled.

At the time of the accident, Fruit, a life insurance salesman, was attending a sales convention of his employer, Equitable Life Assurance Society (Equitable).

The annual convention was being conducted at the resort location of Land's End near Homer on July 10-13, 1969. Sales employees of the company were required to attend the convention. After discussing with district managers the possibility of transporting the Anchorage insurance salesmen to the convention by bus, the agency manager decided that participants should travel by private transportation, and that they would be reimbursed a lump sum for their expenses. Clay Fruit chose to drive his own automobile, accompanied by his wife, another insurance agent and the wife and child of the latter.

Insurance experts from California and Washington were also invited as guests to the convention, and the Alaska salesmen were encouraged to mix freely with these guests to learn as much as possible about sales techniques during the three-day gathering. Scheduled events included business meetings during morning hours, evening dinners and at least two cocktail parties. District managers entertained their own sales personnel at other cocktail parties.

On the first evening of the convention, Thursday, July 10, 1969, the out-of-state guests and the agency manager dined at the Waterfront Bar and Restaurant in downtown Homer, approximately five miles from the convention headquarters at Land's End. They were joined a few hours later by a number of sales agents, including Fruit, for drinks and socializing. At other times during the first two days of the convention, the participants made occasional visits in small groups to the Salty Dawg Bar located about a half mile from the convention center at Land's End.

A desk clerk at Land's End testified that loud and sometimes disorderly partying continued around the room of the agency manager and the adjoining porch and stairway until the early hours of the morning on Friday, July 11, 1969. One of the district managers testified that he complained about the noise to the agency manager.

A business meeting on Friday morning proceeded on schedule followed by a cocktail party and hors d'oeuvres in the room and adjoining spaces of the agency manager. Fruit went to the room of an out-of-state guest with whom he talked business and had drinks. Testimony indicates that by mid-afternoon Fruit was asleep on the floor. That evening, a scheduled cocktail party and seafood dinner on the beach proceeded without Fruit who was still asleep in a room adjacent to that of the out-of-state guest.

At some time between 10:00 and 11:30 p. m. following the seafood dinner other members of the group awoke Fruit who, accompanied by his wife and two couples, walked to the Salty Dawg Bar and returned shortly. The others were tired and went to bed but Fruit decided to go to Homer as he was under the impression that the out-of-state guests were at the Waterfront Bar and Restaurant. Fruit then drove his car to Homer but departed when he did not find any of his colleagues.

His return route to Land's End took him past the Salty Dawg Bar where Schreiner's automobile was disabled on or immediately off the side of the road opposite Fruit's lane. While the facts of the particular moment of the accident which occurred at approximately 2:00 a. m. on July 12, 1969, are unclear, it appears that Fruit applied his brakes and skidded across the dividing line of the highway, colliding with the front of Schreiner's car. The hood of Schreiner's automobile had been raised and Schreiner was standing in front of his car. The collision crushed his legs.

The subsequent amputation and crippling of Schreiner was exacerbated by a urinary disorder resulting from exploratory surgery necessitated by the accident. Schreiner sued Fruit and his employer, Equitable, for damages including pain and suffering, mental anguish, interference with normal activities, continuing medical expenses, loss of income and financial losses incurred from the forced sale of his home, a lot and securities. The jury found on special interrogatories that Fruit's negligence was the proximate cause of the accident; that he was acting within the course and scope of his employment for Equitable; that Equitable was directly negligent in planning and conducting the convention, which negligence was a proximate cause of the accident; and that Schreiner was not contributorily negligent. ¹ The jury awarded damages of $635,000 against both defendants. Both moved for a judgment notwithstanding the verdict and presently appeal from the respective denials of the motions.

Equitable contends that the evidence was insufficient to establish that Fruit was acting within the course and scope of his employment at the time of the accident; that Equitable cannot be held directly liable for the manner in which it conducted the summer conference; and that Equitable did not receive a fair trial because the facts adduced by the plaintiff in support of its direct negligence claim 'tainted the jury's consideration of respondeat superior.' In addition Equitable contends that the jury's verdict was excessive.

Fruit likewise questions the amount of damages and also contends that Schreiner was guilty of contributory negligence as a matter of law or in the alternative that the jury's verdict on this issue was clearly erroneous. ²

I SCHREINER'S CONTRIBUTORY NEGLIGENCE

The parties do not question the jury's finding that Fruit's negligence proximately caused the collision. Fruit contends, however, that the trial court should have granted his motion for judgment notwithstanding the verdict on the issue of contributory negligence.

The location of Schreiner's vehicle prior to the collision was in dispute. There was testimony that the vehicle was parked directly in front of the Salty Dawg Tavern off the traveled portion of the roadway. Other testimony and photographs of the accident scene indicated that the car was on the tavern side of the roadway. The hood of the vehicle was raised and Schreiner had been working on its engine immediately prior to the collision.

Alaska's Motor Vehicle Code, 13 AAC, section 104.111, in effect as of the date of the accident provided in part:

Stopping, standing, or parking outside of business or residence districts.

(a) No person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of a highway.

(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such a manner and to such an extent as it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.

In Ferrell v. Baxter, ³ Justice Connor speaking for this court in his comprehensive analysis of the law applicable to violations of traffic regulations stated:

Therefore, before a plaintiff is entitled to an instruction defining the violation as negligence per se, he must first demonstrate that he is among the protected class and, second, that the injury was caused by a harm against which the law was designed to protect.

The regulation in question would appear to be for the protection of vehicles proceeding in their proper lane against encountering a parked vehicle on the traveled part of the highway. There was no showing in the subject case that the driver of a vehicle, such as Fruit, who should have driven on the opposite side of the road from Schreiner's vehicle was among the class protected by the regulation in question or that the injury was caused by a harm against which the law was designed to protect. ⁴ Thus it is doubtful that Fruit was entitled to an instruction defining the violation as negligence per se. The court nevertheless fairly instructed the jury as to the regulation and its effect. ⁵ Based on the court's instructions the jury found that Schreiner was not contributorily negligent.

In reviewing the lower court's ruling on a motion for a judgment notwithstanding the verdict, this court has said that it will view the evidence in the light most favorable to the nonmoving party, and that the denial of such a motion will not be disturbed if fair-minded men in the exercise of reasonable judgment could differ as to the facts underlying the verdict. ⁶ If there is room for diversity of opinion, the question is one for the jury and their determination will not be disturbed on an appeal. ⁷

As indicated above there was some testimony to the effect that Schreiner's vehicle was parked off the 'main-traveled' portion of the highway. There was also testimony that the hood was raised and that Schreiner was engaged in repairing the vehicle. ⁸ One permissible inference from this testimony would be that it was impossible to avoid stopping and temporarily leaving the vehicle in its position, thus the exception of subsection (b) of the regulation would be...