Gardner v. Hobbs

• Decision Date: 16 May 1949
• Docket Number: 7469
• Citation: 206 P.2d 539,69 Idaho 288
• Parties: GARDNER et al. v. HOBBS
• Court: Idaho Supreme Court

206 P.2d 539

69 Idaho 288

GARDNER et al. v. HOBBS

No. 7469

Supreme Court of Idaho

May 16, 1949

Appeal from District Court, Ninth Judicial District, Fremont County C. J. Taylor, Judge.

Affirmed.

W Lloyd Adams, Mary Smith, Rexburg, Anderson & Thomas, Boise, for appellant.

Whether or not the relationship between Morris Gardner and Keith Gardner at the particular time of the accident was that of joint adventurers was a question of- fact which should have been left to and determined by the jury. The instruction is also contrary to the law. Day v. Pickwick Stages System, 134 Cal.App. 92, 25 P.2d 16; Bates v. Tirk, 177 Wash. 286, 31 P.2d 525; Griffin v. Clark, 55 Idaho 364, 42 P.2d 297; Berry on Automobiles, 7th Ed., Vol. V, Sections 5.158-5.159; Cooley on Torts, 4th Ed., Vol. III, Sec. 492, page 437; Huddy Encyl. of Auto. Law, Vol. 5-6, Sec. 149, page 285.

The measure of pecuniary damages to a widowed mother for the wrongful death of a son is the value of the services of such son from the time of the death until he attains the age of majority considered in connection with the prospects of life of both the son and mother, less the cost of his support and maintenance to his mother during the interval. Nordquist v. W. A. Simons Co., 54 Idaho 21, 28 P.2d 207; Golden v. Spokane & I. E. R. Co., 20 Idaho 526, 118 P. 1076; Kanananakoa v. Badalamente, 119 Cal.App. 231, 6 P.2d 338; Zeller v. Reid, 26 Cal.App.2d 421, 79 P.2d 449, Aff. 38 Cal.App.2d 622, 101 P.2d 730; Skeels v. Davidson, 18 Wash.2d 358, 139 P.2d 301, 149 A.L.R. 225.

T. Harold Lee, Rigby, for respondent.

The general rule is that the driver's negligence is not attributable to a passenger. A drivers negligence may be attributed to a passenger where it is shown that they were joint adventurers. In order to constitute the relation of joint adventurers between Morris R. Gardner and Keith William Gardner at the time of the accident, there must have been a joint interest or community of interest in the purpose of undertaking, and an equal right, expressed or implied, to exercise some control over the conduct of each other with respect thereto. Pacific Indemnity Co. v. Harper et al., 14 Cal.2d 379, 94 P.2d 586, 123 A.L.R. 1171; Griffin v. Clark, 55 Idaho 364, 42 P.2d 297.

The measure of damage to a widowed mother for the wrongful death of a son, either as the mother of a minor child, or as the sole heir of a son of the age of majority, is such damages as may be given as under all the circumstances of the case may be just. 5-310 and 5-311, I.C.A.; Butler, et ux. v. Townend, 50 Idaho 542, 298 P. 375; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Golden v. Spokane & Inland Empire R. Co., 20 Idaho 531, 118 P. 1076; Kelley v. Lemhi Irrigation & Orchard Co., Ltd., 30 Idaho 778, 168 P. 1076.

Porter, Justice. Holden, C. J., Givens and Keeton, JJ., and Lowe, District Judge, concur.

OPINION

Porter, Justice.

Morris R. Gardner and Keith William Gardner were brothers. On December 24, 1946, they were living with their parents on a farm near Sugar City, Idaho. Morris was 21 years and Keith was 19 years of age. Sometime after supper they left their home in a 1937 Ford automobile, owned and driven by Morris. Apparently, Keith stopped at Teton and spent the evening in the company of a third brother, Evan Gardner. Morris drove on to St. Anthony. He attended a dance with a Miss Vera Johnson. About midnight Evan and Keith drove to St. Anthony in Evan's car in order that Keith might find his brother, Morris, and catch a ride back to the Gardner home. They found Morris and Miss Johnson in St. Anthony. About three o'clock in the morning after taking Miss Johnson to her residence, Morris and Keith started for home with Morris doing the driving.

On December 24, 1946, the appellant, Harold Hobbs, was living with his parents in St. Anthony. About eleven o'clock P.M. he left his parents' home in his mother's Chevrolet automobile and drove down town. There he met his wife whom he had not seen for about one year. She got in the car and they drove around, finally going to Rexburg in search of a place to eat. Shortly before three o'clock A.M., they started back to St. Anthony.

The Gardner car traveling south on U.S. Highway No. 191, met the Hobbs car traveling north at a point just north of the boundary line of Fremont and Madison Counties. A collision occurred. The dirt, glass and other debris, and marks on the pavement were all on the west side of the center line of the highway in the lane of the Gardner car. Both the Gardner boys were fatally injured. Morris died at the scene of the accident and Keith died later in the day at the hospital in St. Anthony.

Vernon Gardner, the father of the Gardner boys, died on the 22nd day of August, 1947. Thereafter, on September 23, 1947, the respondent herein filed this action as sole heir of Morris R. Gardner, deceased, and mother of Keith William Gardner, deceased, for the wrongful death of her sons. By her complaint, the respondent alleged that the accident was the result of the negligence of the appellant. By his answer, the appellant denied any negligence on his part and for an affirmative defense, alleged that the collision occurred and was proximately caused by the negligence of the deceased brothers in the operation of the Gardner automobile. On the issues thus formed, a trial was duly held in Fremont County commencing on February 18, 1948. The jury brought in a verdict in the sum of $ 7,000 against the appellant and judgment was duly entered thereon in favor of the respondent. The appellant moved for judgment notwithstanding the verdict, and moved for a new trial. Both motions were by the trial court, denied. The appellant has duly appealed to this court from the judgment and from the orders denying defendant's motion for judgment notwithstanding the verdict and denying defendant's motion for a new trial.

By assignment of error No. 1, the appellant challenges the trial court's instruction No. 3. This instruction includes practically a copy of Section 48-504, I.C.A., as it was prior to amendment in 1947, Laws 1947, c. 183. This section fixes the speed limits applicable under various conditions in driving an automobile on the public highway. The instruction sets out not only the appropriate speed limits involved in the case, but other speed limits not in issue such as, the speed limit when approaching within fifty feet of a grade crossing of any steam, electric or street railway when the driver's view is obstructed; the speed limit when passing a school during recess or while children are going to or leaving school; the speed limit when passing through an intersection with the driver's view obstructed; the speed limit within a business district and the speed limit within a residential district. It must be conceded that it was error for the court to instruct as to these speed limits not involved under the issues made by the pleadings and proof in this case. However, the appellant has not pointed out how the appellant suffered any substantial injury by the giving of such instruction. In Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713, where a similar instruction was given setting out speed limits not involved under the issues, 57 Idaho on page 462, 65 P.2d at page 718, this court said:

"Only instructions which are pertinent to the pleading and the evidence should be given, but where it appears that the giving of the instruction did not result in any substantial injury, though not founded on the issues, the cause will not be reversed. Stinson v. Rourke, 4 Idaho 765, 46 P. 445; Golden v. Spokane etc. R.R. Co., 20 Idaho 526, 118 P. 1076; Brown v. Feeler, 35 Idaho 57, 204 P. 659; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Faris v. Burroughs Adding Machine Co., supra [48 Idaho 310, 282 P. 72]."

It appears from the facts in this case that instruction No. 3, while erroneous, did not tend to mislead the jury or to change the results of the case to the prejudice of the appellant. The giving of same did not constitute reversible error. 3 Am.Jur. 630, Section 1103; Lewis v. Miller, 119 Neb. 765, 230 N.W. 769, 70 A.L.R. 532.

By assignment of error No. 2 the appellant complains that by instruction No. 10 (erroneously referred to as No. 11) the court took from the jury the right to determine whether or not Keith Gardner and Morris Gardner were engaged in a joint enterprise by reason of which the negligence, if any, of Morris might be imputed to Keith. Instruction No. 10 reads as follows:

"The plaintiff's claim for damages which she alleges she has sustained as a result of the death of Kieth William Gardner is not affected by the question of negligence or contributory negligence on the part of the driver, Morris R. Gardner. There is no evidence in the case upon which any negligence on the part of the driver, Morris R. Gardner, (if you find he was negligent) could be imputed to Kieth William Gardner."

The appellant does not contest the rule that the negligence of the driver of an automobile generally is not imputed to a passenger. Likewise, the respondent appears not to contest the general rule that the driver's negligence or contributory negligence is imputable to a passenger when they are engaged in a joint enterprise. In Griffin v. Clark, 55 Idaho 364, on page 375, 42 P.2d 297, 302, this court defined a joint enterprise as follows:

"The general rule appears to be that in order to constitute a joint enterprise with relation to the operation of an automobile there must be a joint interest or community of interest in the purpose of the undertaking, and an equal right, express or implied, to exercise some control over the conduct of each other in respect thereto." (Citing cases.)

A careful examination of the evidence...