Gayhart v. Schwabe

Decision Date02 May 1958
Docket NumberNo. 8576,8576
Citation80 Idaho 354,330 P.2d 327
PartiesKenneth GAYHART, a minor, by and through his guardian ad litem, Mildred E. Gayhart, Mildred E. Gayhart and Edgar O. Gayhart, husband and wife, Plaintiffs- Appellants, v. Helen L. SCHWABE, Defendant-Respondent.
CourtIdaho Supreme Court

Gee & Hargraves, Pocatello, for appellants.

Jones, Pomeroy & Jones, Pocatello, for respondent.

TAYLOR, Justice.

June 27, 1956, plaintiff (appellant) Kenneth Gayhart, a minor 13 years of age, rode his motor scooter out from the private driveway of his parents' residence and onto Hawthorne avenue in Pocatello. When he had reached a point some seven feet beyond the curb line he was struck and injured by an automobile driven by the defendant (respondent).

This action was brought by the minor through his mother as guardian ad litem to recover damage for the injury suffered by the minor and for damage to the motor scooter. In a separate cause of action the appellants Mildred and Edgar Gayhart, mother and father of the minor, seek damages for medical and hospital expenses incurred as a result of the injury to the minor. In her answer the defendant denied negligence on her part and alleged contributory negligence on the part of both the minor and his parents.

Upon trial the jury's verdict was in favor of the defendant. From the judgment entered thereon plaintiffs prosecute this appeal.

The first assignment of error is the admission in evidence of defendant's Exhibit No. 1. The exhibit is a written statement signed by Spencer Ford, Jr., age 14 years, a companion of the injured minor. At the time of the accident the witness Ford was on the private driveway approximately 45 feet from the point of impact. The statement was taken by an insurance investigator on June 29th, two days after the occurrence. The investigator asked Ford a number of questions in the presence of his mother; the statement purports to be Ford's answers written by the investigator and signed by Ford and endorsed by his mother. Ford's testimony contradicts said statement as to the speed of both the automobile and the motor scooter immediately before the collision; the condition of the brakes on the motor scooter; and whether there was a car parked at the curb next to the private driveway in such position as to obscure defendant's view of the motor scooter as it entered the street.

On cross-examination, redirect, and re-cross-examination, Ford was extensively examined in regard to the statement and the writing was shown to him. He acknowledged some of the statements in the exhibit; some he explained; he expressed equivocation as to some; and others he denied. Although not done in a formal manner, Ford's attention was called to the time, place and persons present when the statement was made. The exhibit was properly admitted. R9-1210, I.C.; III Wigmore on Evidence, 3rd Ed., § 1037 and notes; People v. Young, 70 Cal.App.2d 28, 160 P.2d 132.

The second assignment is as follows:

'The trial judge erred in admitting the hearsay testimony of Officer Aumick relating to an unfounded conclusion recited to him by Witness, Ford, since there was no foundation for such testimony and the incident was immaterial. The Court also erred in stating that it would instruct the jury concerning such testimony and in then failing to so instruct.'

Police officer Aumick, called as a witness by the defense, was permitted to testify that at the scene and a few minutes after the accident the witness Ford told him the brakes on plaintiff's scooter were no good, and that a car was parked near the entrance to the driveway. The objection that the evidence was a conclusion of the witness Ford and immaterial is without merit. The further objection that it was hearsay and that no foundation was laid for impeachment should have been sustained. This testimony was offered by defendant and admitted by the court on the theory that it was rebuttal evidence responsive to the testimony of the witness Ford. Rebuttal evidence can be produced only through a competent witness. Here the words were those of the witness Ford brought to the court through the mouth of the officer, not a competent witness to the facts related. Such hearsay was not admissible except for the purpose of impeaching the credibility of the witness Ford. Cf. Stat v. Hewitt, 73 Idaho 452, 254 P.2d 677.

At the time of trial the witness Ford was attending a military academy in Kansas and unavailable. His testimony had been taken by deposition during the Christmas holiday season prior to the trial. In his deposition he testified that a police officer had talked to him at the time of the occurrence and infers that he had told the officer there was a car parked at the curb, and that because of it 'Ken should have looked a little more.' The time and place were sufficiently fixed, but persons present was not shown.

The rule requires that these facts be shown to lay the foundation for impeachment. R9-1210, I.C.; State v. Bush, 50 Idaho 166, 295 P. 432; State v. Mundall, 66 Idaho 297, 158 P.2d 818; Paurley v. Harris, 77 Idaho 336, 292 P.2d 765; In re Foster, 77 Idaho 26, 287 P.2d 282.

The purpose of the rule requiring foundation is to avoid unfair surprise and to afford the witness attacked, and the party calling him, an opportunity to correct his testimony or explain the contradiction. Bell's, Handbook of Evidence for the Idaho Lawyer, p. 40.

Concerning the application of the rule, it was said in State v. Brassfield, 40 Idaho 203, 232 P. 1:

"The essential matter, however, is that witness shall not be misled; and where it is plain that the attention of the witness was directed to the identical occasion or conversation brought out by the impeaching testimony, this is sufficient; and it is immaterial that the question put to the witness does not designate exactly or varies slightly from the impeaching evidence as to the time or place at which, or the name of the person to whom, the statement was made, or the exact words used in the former statement, or even fails to designate the persons to whom or in whose presence the statement was made.'

'While it must be conceded that the requirements of C.S. § 8039, must be complied with before an impeaching question can be put to a witness, this statute must not be given such an unreasonable construction as to devitalize it.' At page 209 of 40 Idaho, at page 2 of 232 P.

Again approved in State v. Boyatt, 59 Idaho 771, 87 P.2d 992; State v. Wilson, 62 Idaho 282, 111 P.2d 868.

In the circumstances shown by the record, the purpose of the rule was not violated, but was substantially observed. The statements testified to by the officer were substantially the same as those made to Mr. Toler, the insurance investigator, and although made on different occasions and to two different witnesses, in view of the extensive examination and cross-examination of the witness Ford, regarding the statements made to Mr. Toler, he was afforded every opportunity to correct his testimony or explain the contradictory statement. Under such circumstances, error in admitting the testimony of the officer without further or complete foundation, is not reversible. R5-907, I.C. requires us to disregard any error which does not affect the substantial rights of the parties.

While the witness Aumick was on the stand, counsel for plaintiffs requested the court to instruct the jury that the witness' testimony as to what witness Ford had told him was not to be regarded as evidence but only for the purpose of impeaching Ford. No formal request for such instruction was made at the commencement of, or during the course of, the trial as required by R84 of the uniform rules of the district court. In view of the failure to make such request, and also the failure to make such a request in connection with the testimony of the witness Toler and Exhibit No. 1, the failure of the court to instruct as to the effect to be given the impeaching testimony of Aumick is not reversible error. Elm v. McKee, 139 Cal.App.2d 353, 293 P.2d 827; Naccarato v. Village of Priest River, 68 Idaho 368, 195 P.2d 370; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600; Abbs v. Redmond, 64 Idaho 369, 132 P. 2d 1044; Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733; Boomer v. Isley, 49 Idaho 666, 290 P. 405.

Plaintiff assigns as error the giving of instructions on the law of contributory negligence on the ground that there was no evidence of contributory negligence to warrant submitting the issue to the jury; and because only general instructions thereon were given, whereas the answer set forth specific acts of contributory negligence, this assignment is without merit. The evidence is in conflict as to the speed of the motor scooter as it entered the street, as to whether or not the injured plaintiff stopped at the sidewalk or curbing where he could see traffic on the street, and whether he there looked to see if there was any approaching vehicle thereon, or whether he entered the street without stopping or looking. It was shown that the private driveway sloped noticeably to the street.

The specific acts of contributory negligence alleged were detailed to the jury. While the court did not advise the jury that the evidence must establish contributory negligence of the plaintiff in one or more of the particulars alleged, that is the purport of the instructions taken as a whole. It does not appear that the jury was misled or that plaintiffs were prejudiced.

Plaintiffs also assign as error the court's instruction No. 9, quoting the statute as follows:

'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.' § 49-730, I.C.

The complaint is that there was no evidence to show that at the time Kenneth Gayhart was about to enter or cross Hawthorne avenue there was any other vehicle, and particularly defendant's car, ...

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11 cases
  • State v. Swenor
    • United States
    • Idaho Supreme Court
    • February 12, 1974
    ...the trial court's reason for overruling appellant's objection to this testimony, the statement is clearly hearsay. Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958); Bell, Handbook of Evidence for the Idaho Lawyer, 2d Ed. (1972), at p. 126, and as such was inadmissible. Even if the stat......
  • State v. Drapeau
    • United States
    • Idaho Supreme Court
    • June 25, 1976
    ...be laid. State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945); Paurley v. Harris, 77 Idaho 336, 292 P.2d 765 (1956); Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958). The reasons for requiring a foundation are 1. to avoid unfair surprise to the witness; 2. to save time, as an admission ......
  • Childers v. US
    • United States
    • U.S. District Court — District of Montana
    • July 2, 1993
    ...447, 599 P.2d 1012, 1018 (1979) ("a child of the age of Randall 8 years, 11 months is capable of negligence"); Gayhart v. Schwabe, 80 Idaho 354, 365, 330 P.2d 327, 338 (1958) ("... however, a normal boy, 13 years old has reached an age where a degree of responsibility for his negligence, or......
  • Carpenter v. Double R Cattle Co., Inc.
    • United States
    • Idaho Supreme Court
    • May 21, 1985
    ...that the failure to give a particular instruction which was never requested was not grounds for reversal. See Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958); Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947). Our present rule, I.R.C.P. 51(a) is silent on whether a party must object......
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