Hayslip v. George

• Decision Date: 28 June 1968
• Docket Number: No. 10096,10096
• Parties: Jack R. HAYSLIP, individually and as guardian ad litem of Linda L. Hayslip, a minor, Plaintiff-Respondent, v. Albert M. GEORGE, Defendant, and Victoria Peila, as administratrix of the Estate of Edwin J. Breshears, Deceased, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 759

442 P.2d 759

92 Idaho 349

Jack R. HAYSLIP, individually and as guardian ad litem of Linda L. Hayslip, a minor, Plaintiff-Respondent, v. Albert M. GEORGE, Defendant and Victoria Peila, as administratrix of the Estate of Edwin J. Breshears, Deceased, Defendant-Appellant.

No. 10096.

Supreme Court of Idaho.

June 28, 1968.

Rehearing Denied July 26, 1968.

Brown, Peacock & Keane, Kellogg, for appellant.

Hamilton & Hamilton, Coeur d'Alene, for respondent.

SMITH, Chief Justice.

Appellant (defendant), administratrix of the estate of Edwin J. Breshears, deceased, appeals from a judgment on verdict awarding damages to respondent (plaintiff) Jack R. Hayslip, individually and as guardian of Linda L. Hayslip, a minor, for personal injuries sustained by Miss Hayslip (now Mrs. Horine) in an automobile accident which occurred April 17, 1963, on U.S. Highway No. 10, about seventeen miles east of Coeur d'Alene, Idaho.

Jack R. Hayslip, as father of Linda L. Hayslip, brought this action seeking general and special damages against Albert M. George, driver of an automobile involved in the accident, and against the estate of the decedent Breshears, who was killed as a result of the accident, and in whose car Miss Hayslip was riding at that time.

Victoria Peila, appellant and county treasurer of Shoshone County, Idaho, following the resignation of her predecessor, was appointed administratrix of the Breshears' estate in October, 1966. Appellant denied and disallowed a creditor's claim for the personal injuries presented by Jack Hayslip.

The evening of the accident, Edwin J. Breshears was on a date with Linda Hayslip, who was fifteen years old. Gary Frank, twelve years old, and Susan Anderson, thirteen years old, were also in Breshears' automobile.

During that evening, Breshears had picked up Linda L. Hayslip at her home, and also, Gary Frank and Susan Anderson. The announced destination of the group was the Autoview Drive-In Theater at Smelterville, Idaho. There is conflict in the testimony as to what permission respondent Hayslip's parents had given Linda prior to departure. They had clearly given Linda permission to ride in Breshears' car, but the record does not so clearly show that they had given Linda permission to go anywhere other than Smelterville.

Upon arrival at the drive-in theater in Smelterville, Breshears and Frank stated that they had already seen the show. Breshears then drove the vehicle back to Pinehurst, Idaho, got gas, and headed for Coeur d'Alene, ostensibly to see a different movie. There is conflict as to whether Linda Hayslip objected to going to Coeur d'Alene.

The group proceeded toward Coeur d'Alene on a highway that lacked traffic. Respondent testified that after they had passed the Rose Lake turnoff on U.S. Highway No. 10, between Kellogg and Coeur d'Alene, she told Breshears she wanted to go back. Then, either because Breshears decided to heed Linda Hayslip's protests or because he decided to go to a dance at Rose Lake, Breshears determined to turn around.

Defendant Albert George was following Breshears at a distance of about six hundred feet. At the time George first saw Breshears, George was two hundred feet past the Rose Lake turnoff area. George was traveling at a speed of about 50-55 m.p.h. He testified that as he drove up behind the Breshears' car, Breshears had slowed down to almost a complete stop, and had pulled over to the right side of the road. Other testimony indicates that Breshears may not have slowed down, but may have attempted his subsequent turn at his previous rate of speed. When George was approximately three hundred feet behind Breshears, George pulled into the left hand lane to pass. At the same time, Breshears pulled across the highway in front of George, intending to cross onto the central divider separating the divided highway in order to make a U-turn. While Breshears was negotiating this turn the left rear portion of his automobile was struck by the George automobile, which caused the injuries which are the subject of this action.

Respondent sued both the Breshears' estate and George for recovery of general and special damages. Prior to resting his case at trial, respondent moved to amend his complaint to conform to the evidence, which motion the trial court granted. The effect of the amendment was to allege gross negligence only on the part of Breshears rather than ordinary negligence. The amended complaint states:

'II.

'That on or about the 27th day of April, 1963, Linda L. Hayslip was riding in an automobile being driven by Edwin J. Breshears on Highway 10 about 17 miles East of Coeur d'Alene, Idaho. That while riding in said automobile, the said Edwin J. Breshears did in a grossly negligent manner attempt to make a 'U' turn across the median portion of U. S. 10, a divided highway, contrary to law, without observing the George vehicle approaching from the rear, and as the direct result, or direct and proximate result of said acts, the said Breshears vehicle was struck by an automobile being driven by Albert M. George. Said Albert M. George contributed to said accident by failing to have his automobile under control. That prior to and at the time of the accident Linda L. Hayslip was being driven towards Coeur d'Alene, Idaho, against her will.

'III.

'By reason of the gross negligence of the defendant, Edwin Breshears and the carelessness and negligence of the defendant, Albert M. George, plaintiffs have been injured by way of general and special damages to the extent of $20,000.00.'

In view of the amendment, appellant moved to strike the allegation in respondent's complaint concerning Linda Hayslip being held against her will, which motion the trial court denied.

Prior to rendition of the jury's verdict the court dismissed the action as to George pursuant to I.R.C.P. 41(b), ruling that the evidence was insufficient to warrant a finding of negligence against him.

The jury returned a verdict in favor of respondent, and against Breshears' estate, in the sum of $10,000.00 (the statutory limit, I.C. § 5-327). The court denied appellant's motions for a judgment notwithstanding the verdict, and in the alternative for a new trial. Appellant appeals, both from the judgment and from the order denying her motions.

Appellant contends, as part of her assignments of error, that the trial court erred in denying her motion for judgment notwithstanding the verdict and in the alternative for a new trial, for the reason that as a matter of law Breshears could not have been grossly negligent. Appellant argues that, because respondent is now allegedly bound by his amended complaint charging gross negligence, and because, as a guest, it was necessary for Linda Hayslip to show gross negligence under our guest statute, see I.C. § 49-1401, ¹ it was incumbent upon respondent to prove gross negligence rather than ordinary negligence. Appellant maintains that respondent failed to sustain such burden of proof.

We recently had occasion to consider the meaning of gross negligence as it is used in I.C. § 49-1401. In Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966), we distinguished 'gross negligence' from 'reckless disregard of the rights of others' which latter phrase was contained in the guest statute which preceded I.C. § 49-1401 as presently worded. In that case, we held:

'Reckless disregard includes gross negligence just as the greater includes the lesser. Gross negligence, however, need not include willfulness, or wanton or intentional disregard for the guest's safety, or conscious indifference to consequences; and there need not be an actual intent to inflict damage or injury.

* * *

* * *

'Under Idaho's present guest statute, I.C. 49-1401, in the light of the 1963 amendment thereto, gross negligence cannot be considered as synonymous with willful or wanton misconduct.' 91 Idaho at pp. 134-135, 417 P.2d at pp. 84-85.

In Hodge v. Borden, supra, we endorsed a distinction between 'reckless disregard' and 'gross negligence' made by the Supreme Court of Oregon in Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960). Therein the Oregon court stated:

'* * * If it is assumed that gross negligence was intended to describe a type of conduct different from reckless conduct, there is still a basis upon which the two expressions could be reconciled. 'Reckless disregard of the rights of others' could be regarded as the type of conduct engaged in by the driver when he actually perceives the danger and continues his course of conduct. Gross negligence could then be considered as describing conduct of the driver when he does an act not knowing of the high degree of manifest danger but under the circumstances where he should have known.' 223 Or. at 391, 354 P.2d at 67.

The determination whether Breshears was guilty of gross negligence was properly a matter for the jury. See Smith v. Sharp, 85 Idaho 17, 375 P.2d 184 (1962); Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946); Owen v. Taylor, 62 Idaho 408, 114 P.2d 258 (1941); Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938); Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369 (1937). We cannot say, as a matter of law, that there was insufficient evidence to indicate gross negligence by Breshears according to the standards adopted in Hodge v. Borden, supra. Accordingly, we hold that the trial court did not err in denying appellant's motion for judgment notwithstanding the verdict and in the alternative for a new trial.

Appellant argues that the trial court erred in denying her motion for involuntary dismissal, or directed verdict for the reason that Linda Hayslip was contributorially negligent. Appellant maintains that Linda Hayslip, knowing that Edwin Breshears intended to turn around on the highway, was contributorially negligent in not protesting against his negligence and thus in not watching out more closely for her own safety and well being.

We held in Dale v. Jaeger, 44 Idaho 576, 258 P. 1081 (1927), that:

'The law is well...