Goff v. Kinzle
| Decision Date | 19 July 1966 |
| Docket Number | No. 10966,10966 |
| Citation | 417 P.2d 105,148 Mont. 61 |
| Parties | H. J. GOFF and H. J. Goff, the Administrator of the Estate of David B. Goff, Deceased, Plaintiff and Respondent, v. Samuel J. KINZLE and Mountain States Telephone and Telegraph Company, a Corporation, Defendants and Appellants. |
| Court | Montana Supreme Court |
Leonard H. Langen (argued), Glasgow, for appellants.
Robert W. Holmstorm, Billings, Franklin S. Longan (argued), Billings, Francis Gallagher (argued), Glasgow, for respondent.
This appeal involves an action for the death of a sixteen year old boy as the result of a motorbike and pickup truck collision on U. S. Highway 2 at Glasgow, Montana. The jury found in favor of the defendants and after hearing a motion for new trial the district judge granted the motion. This appeal followed.
The accident occurred at the intersection of Highway 2 and Cemetery Road located in the City limits of Glasgow, Montana, at about 7:20 P.M. on New Years Eve, December 31, 1963. Samuel J. Kinzle, one of the appellants, is a wire splicer for the Mountain States Telephone and Telegraph Company, (hereafter called Telephone Company) and on that day had driven from Glendive, Montana, to Glasgow, Montana, his home office. He arrived at about 4:00 P.M., did the necessary checking in and cleaning up his desk and then after 5:00 P.M. joined a few of the boys in some New Year's cheer. He testified that after 5:00 P.M. someone brought in a bottle of bourbon and they had a card party; and between the hours of 5:00 P.M. and 7:00 P.M. when he left for home he had two drinks-called bourbon and ditch. At about 7:00 P.M. his wife called him and shortly thereafter he started home in a 1955 Ford 1/2 Ton pickup owned by the defendant Telephone Company. Testimony showed that at the time of the accident it was dark and that Kinzle had his lights on. The road was a four lane highway and it was dry. The Kinzle driven vehicle was proceeding easterly and a Yamaha motorbike driven by decedent, David B. Goff, was going in a westerly direction. Defendant Kinzle testified he drove up to the intersection in the middle lane preparatory to making a left turn. He was not certain whether he stopped or only slowed down for the intersection, but was certain that he had shifted down to low gear and that if he did not stop he almost stopped. He was not certain whether or not he had activated the mechanical turn signal. He recalled a vehicle at the intersection that was coming from the West this being a vehicle driven by a Sgt. Cook who witnessed the accident. When he pulled into the intersection he testified he had checked for vehicles coming from the West and both North and South on Cemetery Road, the intersecting road. Seeing nothing he proceeded until he had just about passed the westerly boundary of the intersection when he caught sight of the motorbike, coming at him at an angle. He immediately accelerated and shortly after felt a bump against his vehicle. He immediately stopped, went back and found the deceased attended by Sgt. Cook and some airmen who were riding in his car. Defendant Kinzle told Sgt. Cook he would get an ambulance and then drove to his home a short distance away and had his wife call for the ambulance. Shortly thereafter he returned to the scene of the accident.
Sgt. Cook testified that on the evening of December 31, 1963, he was driving his personal vehicle and had picked up some Airmen coming to town. Before reaching the intersection in question he noticed a light following his car, and that sometime later he noticed over his left shoulder that the light was just off his left fender, pulling up and passing his vehicle. It was then he saw that it was a motorbike. As they approached the intersection in question the bike had pulled ahead of his vehicle and he estimated its speed between 30 and 35 miles per hour. As they neared the intersection he observed the defendant Kinzle's vehicle ahead of him, saw it make a left hand turn and observed the accident. Sgt. Cook and the men in his car stopped and gave immediate aid to the Goff boy. He testified that the boy was alive, and medical testimony was introduced that he lived until 8:10 P.M. or just under an hour from the time of the accident.
All of this and other evidence went to the jury resulting in a verdict for both defendants.
Respondent's attorneys learned just after the trial ended that one of the jurors, the foreman, had gone to the scene of the accident the night before the case went to the jury, and conducted his own investigation at the scene to check the testimony given; spending some 30 to 45 minutes currying out experiments, and that he then went home and prepared a map as near to scale as possible which he took to the jury room the next day where he showed it to the jurors and told them of the experiments he had conducted. On the basis of affidavits from the jurors, including the foreman, respondent's attorneys moved for a new trial. The appellants submitted counter-affidavits of other jurors to the effect that this outside evidence had not influenced them in their decision and following a hearing the district judge granted respondent's motion for a new trial.
Appellants set forth three specifications of error, the first concerning the court's failure to give an instruction, the second and third concern alleged error in granting a new trial.
The major issue as covered by the second and third specifications of error is whether the trial court had jurisdiction to grant the new trial and we will discuss these first.
Under Rule 59, M.R.Civ.P., the trial judge may grant a new trial for any of the reasons provided by the statutes of Montana. This rule, as shown by the Commission notes, is identical with Federal Rule 59, except that subdivision (a) has been rewritten to adopt it to state practice.
In considering misconduct of jurors as a reason for granting a new trial 6 Moore's Federal Practice, § 59.08(4), p. 3800, states: ...
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Keyes v. Amundson, 10396
...and then reports his findings and opinions to the other jurors. King v. Barrett, supra, 185 N.W.2d at 213; Goff v. Kinzle, 148 Mont. 61, 417 P.2d 105, 107 (1966). Finally, the juror misconduct in this case occurred after the case was submitted to the jury and while the jury deliberated, and......
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Kuiper v. Goodyear Tire & Rubber Co., 82-224
...beyond a doubt that the error complained of did not and could not have prejudiced the rights of the party." See also, Goff v. Kinzle (1966), 148 Mont. 61, 417 P.2d 105. This cause is remanded for a new HASWELL, C.J., and WEBER, J., concur. GULBRANDSON, Justice, specially concurring. I concu......
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...evidence produced at the trial, such as the results of an independent investigation by a juror at the scene of an accident (Goff v. Kinzle, 148 Mont. 61, 417 P.2d 105) or a juror's use of a newspaper cartoom during jury deliberations (State Highway Comm'n v. Manry, 143 Mont. 382, 390 P.2d 9......
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