Gilliland v. Rhoads
| Decision Date | 16 September 1975 |
| Docket Number | No. 4476,4476 |
| Parties | O. L. GILLILAND, Appellant (Defendant below), v. Shirley Constance RHOADS, Administratrix of the Estate of Jesse Carlyle Rhoads, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Rex O. Arney and Tom C. Toner, Redle, Yonkee & Arney, Sheridan, for appellant.
William D. Norman, and Don M. Empfield, Gillette, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK and RAPER, JJ.
On two other occasions, this court has dealt with matters arising out of the factual background involved in this case. Rhoads v. Gilliland, Wyo.1973, 514 P.2d 202, concerned the disqualification of a trial judge, and Gilliland v. Steinhoefel, Wyo.1974, 521 P.2d 1350, concerned liability for loose livestock. Neither have any particular bearing on our disposition of the case before us.
On the night of December 28, 1970, the defendant-appellant was returning home to Gillette from his work in the vicinity of Upton. About one and one-half miles east of the Wyodak coal mine in Campbell County, some cattle had wandered onto the highway and two brand inspectors, plaintiff-appellee's decedent, Smokey Rhoads, and a Whitey Draine were notified of this predicament by a sheriff's deputy, based on a report by a passing motorist. They went to the scene and parked their vehicles on the shoulder of the east-bound lane, preparatory to removing them. It was 7:30 p. m. and for that time of year, darkness had fallen, when these and other events leading to the death of the plaintiff's husband took place.
While both brand inspectors were attempting to move the cattle from the road, the defendant, driving a Chevrolet sedan, approached the cattle from the east. Without making any visible efforts to stop, he drove his automobile into the cattle, injuring one cow and killing another. The defendant's vehicle swerved from the impact with the livestock to the left side of the road, grazed the Rhoads pickup, continued and collided with the Draine pickup head on, which, in turn, hit plaintiff's decedent, standing at its rear, throwing him approximately 40 feet into the borrow pit. Rhoads died in the emergency room of the Campbell County Memorial Hospital.
This wrongful death action followed. The case was tried once in 1972 and a verdict was directed for the defendant. The matter was appealed and remanded for a new trial by this court upon the basis of disqualification of the trial judge and not on the issue of the directed verdict. The jury, upon new trial, returned a verdict of $60,000.00 for plaintiff, upon which judgment was regularly entered. It is from that judgment this appeal is taken. In order to consider defendant's alleged errors, a narrative of events taking place during the trial will be first required.
Since the occurrence and before either trial, Whitey Draine, the brand inspector with the plaintiff's decedent, died. He had made an oral statement to the investigating highway patrolman which the plaintiff's attorney attempted to introduce as an excited utterance. The statement was objected to upon the grounds that it was hearsay, irrelevant and immaterial; initially, the objection was sustained. Counsel for the plaintiff then argued that the statement was admissible under the res gestae exception to the hearsay rule and made the following offer of proof:
'This statement will be to the effect that Mr. Draine waived (sic) his right, tried to stop the Gilliland vehicle and was unable to do so and had to jump in the borrow pit. * * *'
After the offer of proof, the trial judge still sustained the objection but indicated that he would take the matter under advisement and hear further argument in chambers. He then announced he would allow the patrolman to testify as to the Draine statement as a spontaneous exclamation. The objection was renewed and the officer proceeded to testify as follows:
The defendant then moved to strike the witness' answer on the ground that it was not a spontaneous utterance. The court sustained the objection and instructed the jury to disregard the testimony. 1 The defendant thereupon moved for a mistrial on the ground that the testimony was so prejudicial that the admonition not to consider the answer was insufficient to remove the prejudice. The court reserved a ruling on the motion but later denied it. At the close of the plaintiff's evidence, the defendnat moved for a directed verdict on the ground that there was a failure of proof and reasserted the motion for a mistrial. It was denied by the court. At the close of all the evidence, following renewal of all of defendant's motions, their denial, instructions and closing arguments, the jury retired and after deliberation returned its verdict for plaintiff.
The defendant moved for a judgment notwithstanding the verdict and for new trial. As a basis, he asserted: misconduct of the attorney for plaintiff, error in denying defendant's motion for mistrial, surprise occurring during the course of the trial which ordinary prudence could not have guarded against, lack of substantial evidence that the defendant was guilty of negligence as the proximate cause of the occurrence, error in denying the defendant's motion for a directed verdict and error in allowing patrolman Richie to testify in regard to the Draine statement. The motion was supported by an affidavit to the patrolman indicating that he had gone over Mr. Draine's statement with plaintiff's counsel on several different occasions.
The defendant's grounds of error here are:
1. The trial court should have granted the defendant's motion for a mistrial and for a new trial because it was error to admit the hearsay statement made at the scene of the accident by Whitey Draine to the patrolman. The plaintiff's attorney had asked the patrolman several times about the Draine statement prior to trial, yet he made an offer of proof which was not an accurate representation of what the witness would say. The court's instruction to disregard this statement, once it was admitted, was insufficient to remove the prejudice which had occurred.
2. The prejudice of allowing the jury to hear the Draine hearsay statement is manifest in that there was no substantial evidence without it to support the jury's verdict in this case. The court should have granted a judgment notwithstanding the verdict.
3. The court erred in allowing a motorist who had passed through the cattel several minutes before the plaintiff to testify that he managed to avoid the cattle. Proof that one individual managed to avoid an accident at another time is not admissible to show that the defendant failed to exercise reasonable care.
4. The court failed to properly instruct the jury on the issue of proximate cause.
We need not concern ourselves with whether or not Draine's statement to the highway patrolman was an exception to the hearsay rule because the trial court finally held it inadmissible, though it was a close question explaining the trial judge's vacillation. The issue which we have to determine is whether or not an instruction to the trial jury, after the testimony was stricken from its consideration, was an adequate correction of a previous erroneous ruling, assuming but not deciding that it was. The defendant, of course, takes the position that once made, it is impossible to wipe such testimony out of the mind of the jury and that it must have been prejudicially influenced in its verdict accordingly.
As is usual practice, the trial court in this instance at the beginning of the trial, gave a general instruction, outlining the duties of the jury and court with respect to rulings on evidence and warned the jury that a situation may arise during the course of the trial where improperly admitted evidence must be striken and disregarded and in that opening instruction said:
'If any evidence is admitted and after wards is ordered by me to be stricken you must disregard entirely the matter striken, * * *.'
The proposition presented with respect to the postponed ruling is not a new one. In 1833, it was said in Hamblett v. Hamblett, 6 N.H. 333, 346-349:
'* * * we cannot adopt the broad principle there (New York) laid down, as sound law, applicable to all cases, (that an erroneous ruling cannot be cured by subsequent revocation and instruction) * * *.
'The reason, that the testimony so given in presence of the jury, might have an influence, though they are directed to disregard it, would apply with equal force in all cases where any thing irrelevant may have crept in during the course of the trial, and would entitled parties to a succession of new trials, until no sentence should have been uttered which by any possibility might have an undue influence, though the jurors were unconscious of any influence.
'It is apparent that the principle cannot be carried to this extent, and other authorities show it must fall far short of it, even if it can be supported in any degree.
* * *
* * *
'Cases are of daily occurrence, also, where evidence is admitted, which, from a failure to connect it with other evidence, with which it had a necessary connexion (sic) in order to be relevant, eventually turns out to be incompetent. The...
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