Grant v. Clarke

• Decision Date: 18 December 1956
• Docket Number: No. 8326,8326
• Citation: 305 P.2d 752,78 Idaho 412
• Parties: Sadie GRANT, a single woman, Plaintiff-Appellant, v. Frank CLARKE and Marie Yotz, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 752

305 P.2d 752

78 Idaho 412

Sadie GRANT, a single woman, Plaintiff-Appellant, v. Frank CLARKE and Marie Yotz, Defendants-Respondents.

No. 8326.

Supreme Court of Idaho.

Dec. 18, 1956.

Rehearing Denied Jan. 9, 1957.

Walter M. Oros, Vernon K. Smith, Boise, for appellant.

Elam & Burke, Jeppesen & Jeppesen, Boise, for respondents.

ANDERSON, Justice.

Plaintiff (appellant) Sadie Grant brought this action against her daughter, Marie Yotz, and Frank Clarke (respondents) for personal injuries suffered in an automobile accident.

The evidence shows that Mrs. Grant had been operating an hotel in Boise and another in Idaho Falls, and Mrs. Yotz had been assisting her with the bookkeeping. A few days before the accident, Mrs. Yotz called Mrs. Grant and told her that she and her husband, Anton Yotz, were going to Idaho Falls to see about a school bus, and asked if Mrs. Grant wanted to go with them. She accepted the invitation, and they proceeded to Idaho Falls, where Mr. Yotz obtained a school bus to return to Boise. Mrs. Grant and Mrs. Yotz obtained the hotel books, and Mrs. Yotz did some work on them, and they took the books to bring to Boise.

The three were on their way back to Boise on May 8, 1951, when the accident occurred at about 10:30 p. m. Mrs. Yotz was driving an automobile registered to Mr. Yotz, and Mrs. Grant was riding with her. Anton Yotz was following driving the school bus. They had reached a point on U. S. Highway 30 about three and one-half miles west of Hammett when an eastbound automobile driven by defendant Clarke and the westbound Yotz automobile collided. Mrs. Grant was asleep at the time of the accident. All three of the parties were injured.

The highway at the point of the collision extends generally east and west, and is relatively straight. It descends from west to east at a constant grade of about five per cent. The surface of the highway is of bituminous material, 24 feet wide, with graveled shoulders of four feet on each side, and there is a center line dividing east- and west-bound traffic. At the time of the accident, the roadway was dry and the weather was good.

The plaintiff alleged in her amended complaint that she was a guest in the Yotz car, and that both the Clarke and the Yotz cars were over the center line, each at least partly in the lane of traffic designated for the other; that Clarke was negligent, and that defendant Yotz was driving with a reckless disregard of the rights and safety of the plaintiff; that each of such acts was a proximate cause of plaintiff's injury.

The answer of defendant Clarke denied negligence on his part, and alleged that the Yotz car was astride the center line and on the wrong side of the road. As a separate further affirmative defense, Clarke alleged contributory negligence on the part of the plaintiff in that she and Marie Yotz were at the time of the accident engaged in a joint enterprise, and that each of them had the same right of control of the automobile in which they were riding.

The answer of defendant Marie Yotz admitted that plaintiff was a guest in her car, alleged negligence on the part of the defendant Clarke, generally denied any negligence on her part or that she drove with reckless disregard of the rights and safety of the plaintiff. As an affirmative defense, she alleged that plaintiff assumed all risks incident to her riding in defendant Yotz' automobile.

The testimony is conflicting as to where the impact occurred. Anton Yotz testified he saw the Clarke car come across the center line and strike the Yotz car. The main concentration of glass from the car was 24 inches north of the center line, on Mrs. Yotz' side of the highway. Defendant Clarke testified that the Yotz car was in his lane of traffic at the time the collision occurred. The sheriff of Elmore County, who investigated the accident, testified that he observed the debris on the south edge of the oiled road (Clarke's side of the highway). At the close of her evidence, plaintiff made a motion to amend her complaint to conform to the proof that defendant Marie Yotz failed to avail herself of the last clear chance to avoid the accident, and plaintiff asked to omit the allegation that she was a guest in the automobile driven by defendant Yotz, which would leave her status to be decided by the jury. The motion was denied, as being made too late.

The trial court granted a nonsuit as to defendant Yotz, and the jury returned a verdict in favor of defendant Clarke. This appeal is from both the judgment of nonsuit and the judgment rendered on the verdict.

Plaintiff makes 29 assignments of error. For simplicity they can be consolidated into six groups:

First: Did the court abuse its discretion in refusing to allow the plaintiff to amend her complaint?

The issues between plaintiff and defendant Yotz were clearly framed on the guest-host relationship. The case proceeded to trial on this theory, thus requiring proof by plaintiff of reckless disregard of the rights of others by defendant Yotz, I.C. sec. 49-1001. If the proposed amendment had been permitted, it would have changed plaintiff's theory of the case against defendant Yotz from an action under the guest statute to an action involving negligence.

Although plaintiff maintained at the time of her motion to amend that she may not have been a guest of Mrs. Yotz, she had pleaded that she was, and did not seek to amend before trial, nor until the close of her evidence. There was no showing why the motion to amend was not made sooner. Further, the proposed amendment did not cover matters that arose by suprise to plaintiff during the trial.

This court, in the case of Riggs v. Roberts, 74 Idaho 473, 476, 264 P.2d 698, 699, in speaking of a proposed amendment, stated:

'This amendment, attempting to inject a new feature, was addressed to the sound discretion of the court. * * *' See also I.C. sec. R5-905. While ordinarily liberality should be shown in permitting amendments, under the facts in the present case the trial court did not abuse its discretion in denying the plaintiff's motion to amend, as coming too late.

Second: Did the court abuse its discretion in limiting the scope of the cross-examination under the statute of Marie Yotz and Frank Clarke?

Idaho Code sec. R9-1206 provides:

'Examination of adverse party as if under cross-examination.--A party to the record of any civil action or proceedings, or person for whose immediate benefit such action or proceedings is prosecuted or defended, or the directors, officers, superintendent or managing agents of any corporation which is a party to such record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses; and the testimony given by such witnesses may be rebutted by the party calling him for such examination by other evidence. Such witness when so called may be examined by his own counsel, but only as to matters testified to on such examination.

'Nothing contained in this section shall be construed in such manner as to compel the husband or wife to testify against the other, nor to compel a witness to disclose information or communications which are privileged by law.'

While the trial court was rather strict in limiting cross-examination under the above statute, nevertheless the evidence plaintiff sought to bring out on statutory cross-examination was substantially covered at other stages of the trial by one or more witnesses.

Anton Yotz testified:

'* * * the Clarke car traveling on his own proper side of the road left the hard pavement and came directly across the road at a 45 degree angle and struck the Yotz car.'

He testified on cross-examination that the Yotz car was traveling about two feet from the center line, in its own lane; that after the accident the debris was on the north side of the highway; that Mrs. Yotz stayed on her own side of the road. On redirect examination he testified that the headlights of the Clarke car were burning and that after the accident there was an oil spot north of the white line.

Plaintiff's attorney later called Clarke as plaintiff's own witness. He testified that the headlights of the Yotz car were burning before the collision and that the Yotz car was in his lane of traffic.

In the recent case of Willes v. Palmer, 78 Idaho ----, 298 P.2d 972, at page 975, this court stated:

'The appellants also assign as error the action of the trial court in permitting the plaintiff at the opening of the trial to call the defendant Hoyt Palmer and to cross-examine him under the statute, § 9-1206, I. C., on all of the issues without regard to whether evidence on such issues was otherwise available to plaintiff. During the course of the cross-examination, plaintiff's counsel inquired into numerous conversations and negotiations between the parties leading up to and subsequent to the agreement, and required defendant and his counsel to produce correspondence and other documents which defense counsel intended to produce in defense. It is apparent that plaintiff, who personally appeared and testified at the trial, was as familiar with these negotiations, conversations and correspondence as the defendant Palmer, and the evidence was, therefore, readily available to him. In overruling defendants' objections to such extensive cross-examination, the court relied upon Stearns v. Williams, 72 Idaho 276, 240 P.2d 833, 842. As stated by Justice Thomas in that case, the scope of cross-examination under the statute is largely in the discretion of the trial court. However, he also pointed out that the cross-examination objected to in that case 'in the main * * * covered matters which were peculiarly within the knowledge of the witnesses and which were not otherwise readily available.' It is also to be noted that the two California cases cited in that opinion deal with evidence not otherwise readily available to the plaintiff. It was further particularly...