Hodge v. Borden

• Citation: 417 P.2d 75,91 Idaho 125
• Decision Date: 25 July 1966
• Docket Number: No. 9635,9635
• Parties: Steve HODGE and Louise K. Hodge, husband and wife, Plaintiffs-Respondents, v. LeRoy BORDEN, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 75

417 P.2d 75

91 Idaho 125

Steve HODGE and Louise K. Hodge, husband and wife, Plaintiffs-Respondents, v. LeRoy BORDEN, Defendant-Appellant.

No. 9635.

Supreme Court of Idaho.

July 25, 1966.

Elam, Burke, Jeppesen & Evans, Boise, for appellant.

Vernon K. Smith, Boise, for respondents.

SMITH, Justice.

Appellant appeals from a judgment entered against him awarding damages to respondents for injuries sustained in an automobile accident; appellant also appeals from an order denying a motion for a new trial and from an order denying judgment notwithstanding the verdict. The events leading up to the accident, and the happening of the accident, on the mountain road north of the City of Boise, are hereinafter set forth.

On Saturday, October 19, 1963, at about 10:00 o'clock in the evening, respondent Steve Hodge and his wife Louise K. Hodge who was a deaf-mute, appellant, Alvin Borden a brother of appellant, and Jim Hodge a son of respondents, desired to celebrate the occasion of the birthday of Jim Hodge. They used appellant's automobile for transportation. They visited three lounges in the City of Boise during the course of the next three hours, the male members of the party partaking of one or perhaps who rounds of drinks in each lounge.

When closing time came (approximately 1 o'clock a. m. of the morning of October 20, 1963) they returned to appellant's automobile-Jim Hodge and Alvin Borden having purchased a 6-pack of beer. Respondents got into the back seat and the three young men, with appellant driving, got into the front seat of the automobile. After purchasing gasoline for the car, they then drove to the north end of 8th Street in the City, and then continued north toward Mile High Road, past where the pavement ended, onto the dirt (decomposed granite) road. Respondent Steve Hodge and Alvin Borden requested that they be taken to their homes, situated some distance from the north end of 8th Street, and at the southerly border of the City of Boise. Appellant, driver of the car, did not comply with those requests, but continued driving northerly on the dirt road and past some water towars, situated about one and one-half miles north of the City of Boise, before stopping, about one-half to three-fourths of a mile beyond the water towers. In the course of this ride, respondent Louise K. Hodge went to sleep.

After alleviating calls of nature, appellant and his brother Alvin commenced arguing as to whether appellant should continue driving the automobile, or whether LeRoy should drive it. There was some discussion concerning the driving ability of appellant after having taken the several drinks, i. e., how much the intoxicating liquor mya have affected his judgment and reflexes, and his ability to drive and control his automobile. Both Alvin Borden and Steve Hodge, testified that they had no qualms about appellant's ability to handle the vehicle when they left the last bar visited to go home. After a short interval Steve Hodge told Alvin Borden to let his brother LeRoy drive the car to a certain turn-around place on the road. After all of them had returned to the automobile, appellant started driving the vehicle on up the road. He did not stop at the turn-around point, but continued on, driving at a fairly rapid rate of speed, considering the type and condition of the road. The car veered off the road, and rolled over a couple of times. Both respondents were thrown from the car and sustained injuries.

On December 17, 1963, respondents filed their complaint, charging defendant with gross negligence, and with having wilfully and intentionally caused the accident. Subsequently, during the course of the trial, respondents, with leave of court, amended their complaint to include voluntary intoxication as a ground for recovery. At the close of respondents' case appellant sought, by motion, an involuntary dismissal which the court denied. After all of the evidence had been received, appellant moved for an involuntary dismissal and for a directed verdict, both of which motions the court denied. Although the court instructed the jury on appellant's affirmative defense of assumption of risk, it refused to give his requested instructions concerning his defense of contributory negligence of respondents. The jury returned a verdict of $6,000 for respondents and the court entered judgment thereon. Appellant, by motions, sought judgment notwithstanding the verdict and a new trial, which the court denied. From the judgment and the orders denying the motions, appellant has appealed.

Appellant assigns error of the trial court in allowing respondents, during the trial, to amend their complaint so as to allege appellant's voluntary intoxication as a ground for recovery, since the issues framed by the pre-trial order did not contain any allegation by respondents of appellant's intoxication, and respondents did not seek to amend that order.

Respondents, during the trial, moved to amend their complaint after appellant's counsel objected to the introduction of respondents' evidence touching upon appellant's intoxication, as not included within the purview of the pleadings. In support of their motion, respondents pointed to appellant's pre-trial statement which the trial court, by adoption, made a part of the pre-trial order, and having ordered that the pre-trial order supplement the pleadings and that 'the pleadings are deemed amended to conform to this order.'

Appellant, in his pre-trial statement, adopted as a part of the pre-trial order, alleged that respondents were contributorily negligent 'in furnishing intoxicating liquor and in their failure to protest and in their failure to cease riding with defendant (appellant).' Appellant, in support of the defense of assumption of risk, alleged that respondents bought intoxicating liquor for consumption by both themselves and appellant; that respondents knew that appellant had consumed intoxicating liquor; that respondents knew that intoxicating liquor affects the mind and judgment of persons consuming the same; that respondents themselves consumed intoxicating liquor along with appellant; that respondents did not object to riding on the highway where the accident occurred; that they did not alight from the car when they had ample opportunity to do so; and did not protest, or request that they be permitted to disemback from the automobile.

The trial court remarked that the opening statements of counsel for both parties referred go 'the drinking that was done by everyone up to this point,' meaning generally prior to the time of the accident. Inasmuch as the issue of intoxication was raised by appellant as a defense, the trial court's ruling, that respondents' motion made during the trial to amend their complaint so as to allege appellant's voluntary intoxication as a ground for recovery, did not come 'by way of surprise to anyone', was correct. Moreover, since the issue of intoxication was tried at least by implied consent of the parties, the court properly allowed the amendment. I.R.C.P. 15(b). See also McMinn v. Holley, 86 Idaho 186, 384 P.2d 229 (1963); Morford v. Brown, 85 Idaho 480, 381 P.2d 45 (1963); Reynolds v. Continental Mortgage Co., 85 Idaho 172, 377 P.2d 134 (1962).

Appellant assigns as error the trial court's refusal to admit in evidence the testimony of Dwight K. Wells, the court reporter and notary public before whom the deposition of respondent Steve Hodge was taken, appellant contending that Hodge subsequently changed certain portions of his testimony and which changes he allegedly denied when he testified during the trial.

The testimony in Steve Hodge's deposition, taken on February 12, 1964, and his testimony elicited on his cross-examination at the trial to which the assignment is directed, is as follows:

At the trial appellant's counsel directed Hodge's attention to the driving of appellant's automobile on the mountain road north of Boise. He was asked if he had testified in his deposition as to whether the car was stopped 'anywhere along there,' to which he answered, 'No, he was not stopped;' and further whether he had testified that the car was never stopped at any place before the accident, to which he had answered, 'I said they had stopped once.' Again asked if he so testified, he stated that he did not, but that he had testified that they 'stopped once.' He then was asked whether he had testified at the time of taking the deposition, that if the car had stopped, 'you would have got out,' to which he anaswered, 'I certainly would.'

On recross-examination Hodge was asked whether he requested changes in his answers, referring to whether the automobile had stopped anywhere on the road, to which he answered, 'No.' He then testified in effect that he never read the changes in the testimony, 'until yesterday.'

On redirect examination Hodge stated that he recalled that at the time of the taking the deposition the request was made that the deposition be read later so that he, Hodge, could ascertain whether the shorthand reporter had taken down his intended testimony. He then was asked '* * * did you eventually correct that deposition so that it would say what the truth was?' to which he answered, 'Yes.'

Respondents' counsel then offered the entire deposition in evidence to which appellant's counsel objected on various grounds and the court sustained the objection.

When Mr. Wells was called as appellant's witness, respondents' counsel asked him the same questions that he had asked Hodge, adding that after Hodge later had read the deposition, whether he, Wells, made the changes to the effect that the automobile stopped once. Appellant's counsel objected to the question, the main objection being that the deposition itself would constitute the best evidence. The court sustained the objection.

Mr. Wells then testified to questions propounded by respondents' counsel in aid of an objection that some changes were made in the deposition when it was...