Johnston v. Pierce Packing Co., 74-2184

• Citation: 550 F.2d 474
• Decision Date: 09 March 1977
• Docket Number: No. 74-2184,74-2184
• Parties: Paula Jean JOHNSTON and Kerrie Jean Johnston, an infant, by Paula Jean Johnston, her guardian ad litem, Plaintiffs-Appellants, v. PIERCE PACKING COMPANY and Thomas C. White, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 474

550 F.2d 474

Paula Jean JOHNSTON and Kerrie Jean Johnston, an infant, by

Paula Jean Johnston, her guardian ad litem, Plaintiffs-Appellants, v. PIERCE PACKING COMPANY and Thomas C. White, Defendants-Appellees.

No. 74-2184.

United States Court of Appeals,

Ninth Circuit.

March 9, 1977.

Lloyd J. Webb, Roger S. Burdick, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, Paula Jean Johnston, D. Brent Martens, Buhl, Idaho, for plaintiffs-appellants.

Stanley E. Gardner, Berkley, Vaughns, Rhodes & Sherrod, Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before KOELSCH, HUFSTEDLER and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Plaintiffs appeal in this diversity action from an adverse judgment entered upon a jury verdict. They assign as error the failure of the trial court to give two jury instructions requested by them. We affirm.

Appellants Paula and Kerrie Johnston, the widow and child of Ronald Johnston, brought this action under the Idaho Wrongful Death Statute, Idaho Code § 5-311, against Pierce Packing Company and its driver, Thomas C. White. They claimed damages for Ronald Johnston's death which resulted from an accident involving a truck driven by White for Pierce Packing. The jury returned a special verdict, finding that Johnston and White had each been fifty percent negligent in causing the collision. Under Idaho's comparative negligence statute, Idaho Code § 6-801, appellants recovered nothing.

Johnston died when the truck and trailer he was driving crashed into another rig being operated by White at about 3:45 a. m. on the morning of October 8, 1972. Both vehicles were travelling south in the outside lane of a four-lane stretch of Interstate 15 near Pocatello, Idaho. White had stopped on the emergency strip adjoining the highway and had just reentered the travel lane and attained a speed of from 15 to 32 miles per hour when the Johnston truck slammed flush into the rear end of his vehicle. Upon impact, White's truck skidded 165 feet forward, continuing in the outside travel lane. Skid marks of 65 feet were found approaching the point of impact.

Johnston's truck was capable of a top speed of 60 miles per hour. The speed limit at the scene of the accident was 65 miles per hour. The night was clear. No other vehicles were near. The only eyewitness to the impact was William J. Marlar who was approaching the accident scene from the south in a northbound lane of the highway. Marlar testified that he did not actually see Johnston's vehicle prior to the collision as he had his attention focused on the White truck. There was conflicting evidence as to whether White was driving at the time with the rear lights of his truck illuminated.

On appeal, Johnston's survivors advance two grounds for reversal, both of which involve jury instructions that appellants requested but were refused.

Presumption of Due Care Instruction

Under Idaho law, ¹ in the absence of sufficient evidence concerning the pre-accident actions of a decedent, a presumption arises that he was exercising due care for his own safety. The jury, however, is not informed of this presumption if the defendant is able to offer sufficient evidence to dispel the need for it. Appellants requested such an instruction. The trial court denied their request, finding that there was "some" evidence as to the actions of decedent leading up to the collision. Appellants made a timely objection to the refusal of the presumption of due care instruction.

Here, appellants argue that the trial judge misconstrued the Idaho law on the type of evidence which is sufficient to dispel the need for the instruction. More specifically, they maintain that Idaho cases require clear and convincing evidence of the decedent's activities through the testimony of disinterested eyewitnesses, circumstantial evidence alone being insufficient. We must determine, first, whether in fact the trial judge correctly read the Idaho case law on the giving of the due care presumption and, then, whether he properly applied those rules to the facts at hand.

At the outset, we note that Idaho law on this issue does not seem to follow an entirely clear-cut path. Certain generalizations are, however, available to guide us. First, the decision whether to give "an instruction on the presumption of due care on the part of decedent depends on the factual pattern of each individual case." Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297, 301 (1964). Second, our review of the extensive body of Idaho case law on this subject convinces us that rarely is the trial court's decision to give or withhold the instruction overturned on appeal. ² In affirming a trial court's denial of the instruction, the Supreme Court of Idaho in Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112, 118 (1959), cautioned: "We do not hold that an instruction on the presumption would have been erroneous in this case. We hold only that the refusal of the instruction under the circumstances presented was not error." Therefore it seems clear that the trial court is clothed with a broad discretion to grant or withhold the requested instruction as the "factual pattern of each individual case" may dictate. We limit our review accordingly. ³

Appellants argue that only disinterested eyewitness testimony of the activities of the decedent leading up to the accident is sufficient to dispel the need for the presumption instruction. They maintain that Marlar admitted to noticing the Johnston truck only at the point of impact, and that whatever light White can shed on the circumstances of the accident must be discounted due to his personal involvement as a defendant. We are not convinced, however, that Idaho law demands disinterested eyewitness testimony to render the presumption unnecessary.

In Domingo v. Phillips, supra, the unimpeached testimony of the driver of the wagon which killed the decedent was held to be sufficient to overcome the presumption. He, of course, cannot be said to have been a "disinterested" party. Moreover, to say that "it is not proper to give an instruction on the presumption on (sic ) due care on the part of a plaintiff where there are available witnesses to the facts and circumstances leading up to the accident and the actions of the injured party immediately prior thereto," Dopp v. U. P. R. R., 95 Idaho 702, 518 P.2d 964, 966-67 (1974), is not necessarily to imply that eyewitness testimony is needed before the denial of the instruction is proper.

We have found no Idaho case which holds that circumstantial evidence is not sufficient to fill the evidentiary void. Rather, cases seem clearly to indicate that the contrary is the law in Idaho. In Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755 (1962), the defendant driver was the only witness to the accident, and she observed the deceased child only when it darted out in front of her vehicle from behind a parked car. Like Marlar, the defendant there observed only the impact; like White, she clearly was not disinterested. It was only through reconstruction of the child's course that sufficient evidence was offered to preclude the necessity for the instruction. Such evidence can only be said to be circumstantial in relation to the causes of the accident. In upholding the denial of the presumption of due care instruction, the Supreme Court of Idaho said:

In this case there was evidence as to the activities of the deceased child from the time she left the Bible school to the time she ran out in front of the car. Nothing is left to guess or speculation as to how the accident happened. In such circumstances we have held that an instruction on the presumption of due care is unnecessary.

373 P.2d at 762. To the same effect is Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), in which the court held that "(w)here the details of an accident are available through eye witnesses or other external evidence, the purpose of the presumption is served and the necessity for such instruction is removed." 388 P.2d at 995 (emphasis added).

Finally, we note that there seems to be some reluctance on the part of Idaho courts to granting the instruction. In Graham v. Milsap, 77 Idaho 179, 290 P.2d 744, 749 (1955), we find this general caveat: "Instructions on presumptions of due care on the part of a decedent are not favored, and the tendency is to refrain from giving them, especially where there are eye witnesses." More directly on point, the Supreme Court of Idaho has said: "Serious doubt arises as to the propriety of giving an instruction on the presumption of due care in an action such as this where contributory negligence has been pleaded and relied upon as an affirmative defense." Van v. U. P. R. R., 83 Idaho 539, 366 P.2d 837, 844 (1961).

Thus, we hold that appellants' contention that Idaho law requires that there be clear and convincing, eyewitness testimony by a disinterested party to dispel the need for the instruction is unfounded. We now turn to a discussion of whether the district judge abused his discretion in finding that there was "some" evidence as to the activities of the decedent leading up to the accident and in refusing the requested instruction.

It is clear that the principal inference which the defendants attempted to bring home to the court and the jury was that the decedent, Johnston, was asleep at the wheel just before the accident occurred and was, therefore, unable to take reasonable evasive action to avoid the collision. Driving log books were introduced to show that Johnston may have had little sleep in the hours and days preceding the accident. Testimony was offered to prove that the night was clear and road conditions ideal. While it is true that there was substantial conflict as to whether the White truck had its rear lights in operation at the time it pulled back onto the highway, Idaho law requires that the driver of a vehicle ordinarily must be capable of stopping his vehicle within...