Kinney v. Smith

• Decision Date: 12 April 1973
• Docket Number: No. 10969,10969
• Citation: 95 Idaho 328,508 P.2d 1234
• Parties: L. Douglas KINNEY et al., Plaintiffs-Respondents, v. Walter Gene SMITH, Bessie Poulsen Smith, Defendants, and Bessie Poulsen Smith, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1234

508 P.2d 1234

95 Idaho 328

L. Douglas KINNEY et al., Plaintiffs-Respondents, v. Walter Gene SMITH, Bessie Poulsen Smith, Defendants, and Bessie Poulsen Smith, Defendant-Appellant.

No. 10969.

Supreme Court of Idaho.

April 12, 1973.

Petersen, Moss, Olsen, & Beard, Idaho Falls, for appellant.

Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for respondents.

DONALDSON, Chief Justice.

The appellant Bessie Poulsen Smith was the owner of a motor vehicle driven by Walter Gene Smith, whose negligent operation of the vehicle caused the death of the respondents' eleven-year-old daughter and injuries to other passengers in a car driven by the respondent L. Douglas Kinney. Mr. and Mrs. Kinney and their children brought suit against the driver, who has not appealed from the judgment below, and the appellant. Among other things, the respondents sought to recover damages for the wrongful death of their minor daughter, Janice Lake, Mrs. Kinney's child by a previous marriage.

Prior to trial, which took place on March 8 and 9, 1971, the defendants filed (on March 5, 1971) certain admissions, which in part conceded:

'3. That the collision occurred as a result of the negligence of Walter Gene Smith in the operation of the vehicle being driven by him, which negligence was a direct and proximate cause of any injuries or damages suffered by the plaintiffs as a result of the collision.

'4. That Janice Lake was killed as a result of said collision.

'5. That the vehicle being driven by Walter Gene Smith was at the time of the collision owned by Bessie Poulsen (formerly Bessie Poulsen Smith) and was at the time of the collision being driven by Walter Gene Smith with the consent and permission of Bessie Poulsen (formerly Bessie Poulsen Smith).

'6. That the collision did not occur as a result of and was not proximately caused by the negligence on the part of the plaintiffs or any of them.

'7. That the vehicle being operated by L. Douglas Kinney was damaged in the amount of $3,435.50.'

At the trial, the plaintiffs sought to establish the appellant's direct negligence for furnishing a vehicle to an incompetent driver (as contrasted to the negligence which must be imputed to her as owner under I.C. § 49-1404, subd. 1). The court sustained objections to the admission of evidence offered to the show that the appellant negligently furnished a car to an incompetent driver; and the issue of whether the appellant was negligent in furnishing the car to the driver was not submitted to the jury.

The jury returned a verdict in favor of the plaintiffs, awarding $8,000 for general damages, $35,000 for wrongful death, and $7,461 for special damages and loss of property. The judgment entered below has been satisfied except for the $35,000 awarded to Mrs. Kinney for the death of her minor child. The appellant filed a motion for a new trial as to the wrongful death claim on the grounds of (1) excessiveness indicating passion and prejudice, (2) insufficient evidence, and (3) errorneous admission of evidence; this motion was denied. The appellant also filed a motion to alter or amend the judgment so that her liability as owner would be limited to $20,000 for death or personal injury and to $3,635.50 (the amount established at trial) for property damage; after this motion had been denied, the appellant filed a motion for release from judgment upon the payment into court of $20,000 for death or personal injury and $5,000 to be applied first toward property damages suffered, which motion was also denied. Both the motion to amend and the motion for leave to deposit were made on the grounds that since the appellant's liability arose solely from her ownership of the motor vehicle which caused the damages, her liability should be governed and limited by the provisions of I.C. § 49-1404, which in pertinent part provides:

'2. Limitation of liability. The liability of an owner for imputed negligence imposed by this section and not arising through the relationship of principal and agent or master and servant is limited to the amount of $10,000 for the death or injury to one (1) person in any one (1) accident and subject to said limit as to one (1) person is limited to the amount of $20,000 with respect to the death or injury to more than one (1) person in any one (1) accident and is limited to the sum of $5,000 for damage to property of others in any one (1) accident.

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5. Settlement and payment of claims where two (2) or more are injured or killed in one (1) accident-Diminution or extinguishment of owners' liability. Where two (2) or more persons are injured or killed in one (1) accident, the owner may settle or pay any bona fide claim or claims for damages arising out of personal injuries or death, whether reduced to a judgment or not, and such payments shall diminish to the extent thereof the owners' total liability on account of such accident; and payments so made aggregating the full sum of $20,000 shall extinguish all liability of the owner hereunder to said claimants and all other persons on account of such accident; which liability may exist by reason of imputed negligence, pursuant to this section, and not arising through the negligence of the owner nor through the relationship of principal and agent nor master and servant.'

The issue which must be resolved initially is whether the district court erred in denying the appellant's motion for a new trial on the wrongful death claim. Relying upon Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950), and many cases from other jurisdictions, the appellant urges that an award fo $35,000 for the wrongful death of an eleven-year-old minor child is excessive as a matter of law. Counsel for the appellant did not, however, have the benefit of our recently released decision in Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), which overruled Checketts' holding that a verdict for the death of a minor child which exceeded $20,000 was excessive as a matter of law. In Meissner we refused to rule that a verdict of $71,335 for the death of a sixteen-year-old boy was excessive as a matter of law. Similarly, in the case at bar we cannot say that the amount awarded was not 'just' 'under all the circumstances of the case.' See I.C. § 5-311; Meissner v. Smith, supra at 569-570, 494 P.2d 567.

The appellant also contends that her motion for a new trial should have been granted for the further reason that the court erred in admitting certain evidence offered by the respondents: photographs of the vehicles at the scene of the accident; and testimony as to how the accident occurred, and as to the speed of the appellant's vehicle. Over objection, this evidence was admitted as relevant and material to the probable extent of the plaintiffs' injuries. The appellant submits that since liability had been admitted, the challenged evidence was immaterial. However, the evidence in question was material to the issue of damages and relevant to show the extent of the injuries sustained by the surviving parties. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752, 755 (1947); Gulf Oil Corp. v. Slattery, 3 Storey 504, 53 Del. 504, 172 A.2d 266 (1961); Howard v. Stoughton, 199 Kan. 787, 433 P.2d 567 (1967); Baltus v. von der Lippe, 293 Minn. 99, 196 N.W.2d 922, 923 (1972); Piper v. Barber Transp. Co., 79 S.D. 353, 112 N.W.2d 329 (1961); Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299 (1962); Murray v. Mossman, 52 Wash.2d 885, 329 P.2d 1089 (1958) (photographs); Millay v. Milwaukee Auto. Mut. Ins. Co., 19 Wis.2d 330, 120 N.W.2d 103 (1963); 11 Blashfield, Automobile Law and Practice § 429.1 (3d ed. F. Lewis 1968). We conclude that the trial court did not err in denying the appellant's motion for a new trial.

We turn now to the appellant's motion to alter or amend the judgment on the ground that her liability was limited by statute. The appellant submits that on the record before this Court, the only basis for sustaining the imposition of liability stems from the negligence to be imputed to her as owner, under I.C. § 49-1404, set out supra; and therefore, she contends, her liability is subject to the limitation contained therein. We note, however, that the plaintiffs' case against the appellant was not based solely upon imputed negligence. In count one, paragraph III of their complaint, the plaintiffs alleged that the appellant 'permitted the operation of said motor vehicle by said driver in Idaho and permitted the operation of said driver, knowing he was unauthorized to drive within the state of Idaho in violation of Section 49-339 and other provisions of the Idaho Motor Vehicle Laws.' ¹ Section 49-339 of the Idaho Code provides that:

'No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the povisions of this act.'

Driving by someone whose operator's license has been suspended is in violation of the provisions of I.C. § 49-337. Among other things, the plaintiffs offered to prove that when the appellant furnished her car to the driver, she knew that his driver's license had been suspended. If the appellant knowingly permitted her car to be driven by a person whose license had been suspended, then she acted in violation of I.C. § 49-339.

In order for the violation of a statute to be pertinent in a particular case, the statute must be applicable; that is, the statute must be designed to protect (1) the class of persons in which the plaintiff is included (2) against the type of harm which has in fact occurred as a result of its violation. Prosser on Torts 191-202 (3rd ed. 1964). In our view, I.C. § 49-339 is designed to protect other highway users from injuries caused by the negligence of unlicensed drivers. Jones v. Dixie Drive It Yourself System, 97 Ga.App. 669, 104 S.E.2d 497, 499-500 (1958); 6 Blashfield, Automobile Law and Practice § 254.26, at 383-384 (F. Lewis ed....