Gobel v. Rinio

• Decision Date: 02 December 1948
• Docket Number: 8787.
• Parties: GOBEL v. RINIO.
• Court: Montana Supreme Court

200 P.2d 700

122 Mont. 235

GOBEL v. RINIO.

No. 8787.

Supreme Court of Montana

December 2, 1948

Appeal from District Court, Seventh Judicial District, Richland County; F.S.P. Foss, Judge.

Action by Leslie J. Gobel, against Fred Rinio for damages arising out of an automobile accident. Judgment for plaintiff and defendant appeals.

Affirmed.

Murch & Wuerthner, of Great Falls, and Brattin & Habedank, of Sidney, for appellant.

C. T. Sanders and Frederic P. Holbrook, Jr., both of Sidney, for respondent.

ANGSTMAN Justice.

Plaintiff brought this action to recover general and special damages in the total sum of $8,725.45 for injuries sustained by him and damages to his automobile alleged to have been caused by the negligence of the defendant in driving his automobile into and against that of plaintiff.

The pleadings and the evidence disclose that plaintiff on June 22, 1946, had driven on highway No. 14 in a southwesterly direction from Sidney to a point about four and one-half or five miles from Sidney when his car stalled. His wife and two children were riding with him as well as his wife's father and mother. The accident happened about 9:30 in the evening. The plaintiff and his father-in-law attempted to start the car by pushing it but had been unsuccessful in doing so. The defendant was proceeding in his car toward Sidney and as he approached plaintiff's car the lights on plaintiff's car were on but according to his evidence and the evidence of the other occupants of plaintiff's car they were dimmed. Plaintiff was standing on the ground with the left door of the car partially opened and stood between the door and the car giving his wife instructions as to what to do when he and his father-in-law should attempt again to push the car ahead. The plaintiff and his witnesses testified that his car was well over on its right hand side of the highway with the right wheels off the oiled mat and the left wheels about four feet to the right of the center line. As the defendant's car approached it was well over on its side of the highway but as it got near to plaintiff's car it turned left and struck the left door of plaintiff's car, causing plaintiff to fall to the ground and sustain the injuries complained of. The left front fender and the left light of plaintiff's car were damaged. Plaintiff was taken to the hospital and suffered from a broken jaw and other painful injuries. He was hospitalized and bedridden for some time and was not able to perform any manual labor until some time in September 1946 when he accepted employment of a less arduous nature than that in which he was formerly engaged.

The defendant in his answer and by evidence took the position that plaintiff was guilty of contributory negligence in that his car was parked on the center of the highway rather than to the right of the center line at the time of the collision and in that the lights on his car were not dimmed.

On most of the material issues, the evidence was conflicting. The jury returned a verdict in favor of the plaintiff for $2,500. Defendant made a motion for new trial which was denied and this appeal from the judgment followed.

The first assignment of error questions the propriety of the court's action in allowing plaintiff's exhibit No. 1 to be received in evidence. This exhibit was a drawing to scale of a section of highway No. 14 approximately four and one-half miles southwest of Sidney and was objected to upon the ground, among others, that it was not identified as being a sketch of the particular part of the highway where the accident took place. The exhibit was simply used for illustrative purposes. This court is committed to the view that the trial court has a wide discretion in admitting any diagram, map or photograph which will aid the jury in applying the evidence and assist the court and jury in understanding the case. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025.

Furthermore we fail to see where the defendant was prejudiced in the slightest degree in the admission of the exhibit. As above stated, it was simply used to illustrate the position of plaintiff's car at the time of the accident. Even defendant's counsel in objecting to the item in the cost bill for the preparation of his exhibit did so upon the ground 'that the map so prepared was not necessary to the trial of said action in any respect whatsoever.' We fail to see how the reception in evidence of this map, if erroneous, could possibly have affected the outcome of the case.

The second assignment is based upon remarks of the court, designed to prevent the defendant from prompting a witness. The defendant contends that the court should have granted a new trial because of irregularity in the proceeding of the court in that connection. It appears that when plaintiff's counsel was cross-examining defendant's wife she was asked the model of the car driven by the defendant. The court made this statement, 'Just a minute you let this witness testify and I don't want any more prompting.' Mr. Wuerthner, counsel for defendant, replied: 'I am sorry, Your Honor.' The court: 'I assume you are. I cannot only see him move his lips but I can hear him. You should be able to hear him.' The affidavits in support of the motion for new trial assert that the judge's remark was made 'in a loud and angry voice and manner' and in the plain sight and hearing of the jury and that the judge did not admonish or instruct the jury to disregard the remarks.

In a counter affidavit filed by counsel for the plaintiff, it was asserted that the remark was not spoken or delivered in a loud or angry voice or manner nor was it accompanied by menacing gestures. The court in denying the motion for new trial stated, 'Defendant was sitting back of, and to the left of defendant's chief counsel and defendant's counsel was not in a position to see the defendant without first turning around. Defendant's counsel did not turn around until after the remarks complained of were made. The court, looking directly at the defendant, did not only hear but saw his actions * * *. The court observed the actions of the witness on the stand and was of the opinion that she was being prompted and therefore observed the defendant and could not only see but could hear the prompting of the witness. * * * The court did, in an orderly manner solely for the purpose of requiring orderly conduct in the trial of the action, admonish the defendant not to prompt witness and defendant's counsel immediately apologized.' The court did not err in denying the motion for new trial on this ground. The case is not comparable to that of Pilgeram v. Haas, 118 Mont. 431, 167 P.2d 339. Additionally, there was no objection made to the statement nor was there any request made that the jury be admonished to disregard it.

The next two assignments of error have been discussed together and we shall treat them together. These two assignments of error deal first with evidence as to what happened to plaintiff's half interest in the saw mill which he owned in Oregon and which the evidence shows was sold while he was under medical care at Sidney and second, in giving instruction No. 29, which advised the jury that should they find for plaintiff then in assessing damages they might consider among other things, 'the amount necessarily expended or incurred by the plaintiff on account of physician's services, hospital care and medical supplies, not exceeding $352.45'; and 'loss of wages or income growing out of injuries suffered by the plaintiff because of such accident, not exceeding $2,340.'

The complaint alleged that at the time of the injuries plaintiff was part owner of a saw mill near Portland, Oregon, and was engaged in its operation and that the income to him from the business was $90 a week and that as a result of the injuries he is prevented from carrying on the business and that he will be unable for a period of approximately six months to pursue that employment and business to his damage in the sum of $2,340. It was shown by evidence that plaintiff advised his partner before leaving Sidney to sell the business and when he returned to Oregon he went to work in a sash factory earning 93 1/2¢ an hour. Defendant's argument is that the six-month period for which the item of $2,340 damages was sought would cover the months of not only July and August but September, October, November and December, the latter four months covering time after which the saw mill had been sold with plaintiff's knowledge and that the instruction thus permitted recovery for a loss of business which was not in existence for four months. We do not so view the instruction. It simply fixed $2,340 as pleaded as a maximum under this item. When it was shown that plaintiff was able to earn some money during the months in question, that of course should be and undoubtedly was taken into account by the jury in ascertaining the amount of damage suffered by plaintiff through loss of wages or income, due to the injuries.

As above noted the verdict was for $2,500, whereas plaintiff asked for a total of $8,725.45. The case is much like that of Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871. We are unable to say from the verdict that the jury awarded an unreasonable amount for loss of earnings. No one can say from the verdict how much was awarded for loss of earnings as distinguished from other items of damages.

It is contended that it was error to include in instruction No. 29 the item for hospital and medical expenses since there was no proof offered that the amount expended for those purposes was reasonable. Objection to the instruction was made on that ground. The verdict here was general and plaintiff claimed more for the personal injuries exclusive of medical and...