Hill v. Bice

• Decision Date: 16 July 1943
• Docket Number: 7105
• Parties: ROBERT E. HILL, Appellant, v. ROY BICE and EDWARD BICE, Respondents
• Court: Idaho Supreme Court

139 P.2d 1010

65 Idaho 167

ROBERT E. HILL, Appellant, v. ROY BICE and EDWARD BICE, Respondents

No. 7105

Supreme Court of Idaho

July 16, 1943

1. Trial

A "motion for nonsuit", being equivalent to a "demurrer to the evidence", must be tested by that version of the evidence most favorable to plaintiff.

2. Attorney and client

A distinct and formal admission made by an attorney acting in his professional capacity on a trial binds his client as a "judicial admission".

3. Automobiles

In action for property damage allegedly done by defendants' transport truck, evidence and admissions by answer and by attorney in open court made out a prima facie case for jury on question of whether defendants were the owners of truck which caused damage.

4. Evidence

Court will take judicial notice of its own records and files in the particular case before it for all purposes.

5. Evidence

An affidavit signed and filed by defendants' attorney in support of motion for continuance was admissible over objection that it was incompetent, irrelevant and immaterial and an attempt to prove agency by the statement of an agent when offered by plaintiff to identify defendants as owners of truck which caused damage for which recovery was sought.

6. Trial

Courts should act cautiously and should carefully scrutinize all the evidence before granting motion for nonsuit.

7. Trial

On defendant's motion for nonsuit after plaintiff has introduced his evidence and rested, defendant is deemed to have admitted all facts of which there is any evidence and all facts which the evidence tends to prove, and the evidence must be interpreted most strongly against defendant.

8. Trial

Plaintiff should not be nonsuited unless the evidence in his behalf upon the most favorable construction that jury would be at liberty to give it, will not warrant a verdict for plaintiff.

9. Appeal and error

It is reversible error to grant a nonsuit where plaintiff has made out a prima facie case.

10. Trial

Motion for nonsuit should be denied where reasonable minds might well differ concerning the evidence introduced.

11. Appeal and error

Where evidence and admissions in pleadings and by defendants' attorney in open court made out a prima facie case identifying defendants as owners of truck which caused damage for which recovery was sought, trial court committed reversible error in granting nonsuit and entering judgment thereon in favor of defendants.

12. Parties

Plaintiff having made out a prima facie case identifying the persons named individually as defendants as constituting the firm that owned truck which caused damages for which recovery was sought was entitled during trial to amend complaint so as to conform to such proof by making the individual defendants as constituting such firm parties defendant. (I.C.A., sec 5-905.)

13. Pleading

Great liberality should be shown in allowing amendments to pleadings in furtherance of justice between the parties. (I.C.A., sec. 5-905.)

14. Pleading

Where amendment which is offered for the purpose of conforming pleadings to the proof does not present any new cause of action or issue and opposing party has not been misled or deprived of introducing any evidence which he might desire to offer in consequence of amendment, disallowance of such amendment is error. (I.C.A., sec. 5-905.)

Appeal from the District Court of the Ninth Judicial District of the State of Idaho, for Bonneville County. Hon. C. J. Taylor Judge.

Action to recover damages. Judgment for defendants.

Reversed.

A. A. Merrill and L. H. Merrill for appellant.

"A motion for non-suit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it." (Donovan v. Boise City, 31 Ida. 324, 171 P. 670; Hendrix v. City of Twin Falls, 54 Ida. 130, 29 P.2d 352; Denton v. City of Twin Falls, 54 Ida. 35, 28 P.2d 202.).

"It is reversible error for the trial court to grant a non-suit where plaintiff has made out a prima facie case." (Schleiff v. McDonald, 47 Ida. 423; Kroitch v. Empire Mill Co., 9 Ida. 277; Adams v. Bunker Hill, 12 Ida. 637.).

O. R. Baum for respondents.

It was incumbent upon the plaintiff to prove that the defendants, Roy Bice and Edward Bice, were the owners of the truck in question as alleged. (Colwell & Bothwell, 60 Ida. 107, 82 P.2d 193; 5 Am. Jur., Automobiles, sec. 598, 42 C.J. 1208, sec. 1007.).

It being alleged in the complaint that the truck complained of was being operated by one Marshall Thayer, who is alleged to have been the agent, servant or employee of the defendants, it was incumbent upon the plaintiff to prove such agency, and that the agent was acting within the scope of his authority. (Magee v. Hargrove Motor Co., 50 Ida. 442, 296 P. 774, 5 Am. Jur. 867, sec. 660; Tice v. Crowder, (Kan.) 240 P. 964, 42 A.L.R. 893; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, Ann. Cas. 1916D, 1161.).

The plaintiff having failed to produce any competent proof connecting the defendants, or either of them, with the ownership of the truck in question, or of the relation of principal and agent as between either of them and the operator of the truck, the judgment of nonsuit was proper and should be affirmed. (Blackwell v. Kircheval, 29 Ida. 473, 160 P. 741; Roberts v. U.S., 17 F.Supp. 641.).

BUDGE, J. Ailshie, Givens, and Dunlap, JJ., concur. Holden, C.J., did not sit at the hearing or participate in this decision.

OPINION

BUDGE, J.

--Appellant brought this action against respondents alleging in his complaint among other things:

"That on the said 25th day of October, 1941, the defendants were the owners of a large transport truck, the motor and serial number of which is unknown to these plaintiffs; that said truck is known by the defendants as truck number 4.

"That on the 25th day of October, 1941, at approximately one o'clock A.M. of said day, Dean Hill, son of the plaintiff Robert E. Hill, was driving said automobile from Rexburg, Idaho, to his home in Ucon, Idaho, when the accident hereinafter set forth occurred.

"That on said 25th day of October, 1941, the defendants Roy Bice and Edward Bice were engaged in transporting large quantities of petroleum products in bulk by the large truck and tank trailer and was driving in a southerly direction on and along said highway; that said truck was then and there being operated and driven by one Marshal Thayer, who was then and there their agent, servant or employee of said defendants Roy Bice and Edward Bice and was at said time and place, acting within the scope of his employment.

"That about one o'clock A.M. of said 25th day of October, 1941, and at approximately one-half mile north of Rigby, Idaho, the said Marshal Thayer, who was then and there in charge of and operating the said motor truck and tank trailer and while acting within the scope of his employment, did carelessly, negligently, and with wanton disregards for the rights and properties of others, drive said truck into the rear end of the plaintiff's automobile completely demolishing the same; that said automobile then and there owned by the plaintiff Robert E. Hill was completely destroyed by the acts of the defendants by and through their said agent Marshal Thayer * * * *.

"That immediately before the accident as aforesaid, said automobile was of the reasonable and fair market value of $ 600.00; that after said accident, the said automobile had no value whatsoever; that the said collision and the destruction of the plaintiff Robert E. Hill's automobile * * * was directly and proximately caused by the carelessness and negligence of the defendants Roy Bice and Edward Bice by and through their agent and employee, Marshal Thayer as hereinabove alleged * * *."

* * *

"That the defendants by and through their said agent, employee or servant as hereinabove stated were negligent and careless in driving along said highway at a high and reckless rate of speed approximately 50 miles an hour (amended by interlineation) and in striking said plaintiff's automobile without giving the plaintiff any warning whatsoever that said truck was approaching from the rear.

"That as a result of said carelessness on the part of the defendants by and through their said agent, at said time and place, the plaintiff Robert E. Hill has suffered damages in the sum of $ 600.00."

Which damages appellant sought to recover.

Respondents filed an answer and also set up an affirmative defense. In their answer respondents admit that on October 25, 1941, the day of the collision, they were engaged in transporting large quantities of petroleum products in bulk, and that they owned "a large transport truck" known to them "as truck number 4". Respondents admitted some damage was done to "a car driven by Dean Hill," but denied each and every other allegation in connection therewith.

The cause came on for trial before the court and jury. At the conclusion of appellant's evidence, and after he had rested his case, respondents made a motion for non-suit on the ground that respondents had not been identified as owners of the truck involved in the collision. At the conclusion of the argument on said motion, appellant asked and was granted permission to reopen the case for the purpose of offering further testimony. After appellant made his offer of proof he asked leave to amend his complaint to conform to the proof "by adding to the title of the complaint, immediately after the words, 'Edward Bice', the following: 'As individuals, and Roy-Bice and Edward Bice, sometimes known as Bice Brothers.' and by...