Koch v. Elkins

• Decision Date: 15 December 1950
• Docket Number: Nos. 7637,7638,s. 7637
• Citation: 225 P.2d 457,71 Idaho 50
• Parties: KOCH v. ELKINS et al. DESMOND et al. v. ELKINS et al.
• Court: Idaho Supreme Court

Page 457

225 P.2d 457

71 Idaho 50

KOCH v. ELKINS et al.

DESMOND et al. v. ELKINS et al.

Nos. 7637, 7638.

Supreme Court of Idaho.

Dec. 15, 1950.

McFarland & McFarland, Coeur d'Alene, H. Earl Davis, Spokane, Wash., for appellant.

Whitla & Knudson, Coeur d'Alene, for respondent.

TAYLOR, Justice.

In these consolidated actions the plaintiffs (respondents) recovered judgments against the defendants (appellants) for personal injuries and property damage resulting from an automobile accident. Prior to the accident the defendant Elkins was acting as a real estate agent for the defendant the Big West Realty, Inc., of Spokane, Washington, on a commission basis. The plaintiff Freda B. Desmond, being the owner of an interest in hotel property in Mullan, Idaho, at Elkin's request examined hotel property in Spokane and entered into negotiations for a trade. On March 1, 1948, the parties having agreed to deal, Elkins took the owners (Mr. and Mrs. Taylor) of the Spokane property to Wallace, Idaho, in his car. There certain documents were drawn and signed by the parties, purporting to complete the exchange. Elkins then drove the Taylors to Mullan, where they took possession of the property there. Some personal effects of Mrs. Desmond were loaded into the Elkins car and she and plaintiff David Edward Koch (her adopted grandson, 7 years of age) entered the Elkins car for the purpose of going to Spokane and into possession of the property there. Elkins drove the car and was accompanied in the front seat by another real estate agent, one Gilpin. They left Mullan about 8:30 P.M. It was dark, snowing, and the road was slippery. At a point about twenty miles east of Coeur d'Alene, Idaho, the car left the road, knocked over a couple of of guard posts, and turned over, down a steep bank, and came to rest right side up in a creek. All were thrown out of the car except Mrs. Desmond. Gilpin was carried down stream about twenty feet. David Koch was washed up on a bar down stream and on the other side of the creek. The water was cold and added to the shock of those who were dumped into it. Mrs. Desmond and her husband brought an action for injuries to her person and for loss and damage to her personal property which was in the car. The other action was brought by the infant Koch for injuries to his person.

Some of the assignments of error are not urged by appellants in their brief and need not be noted here. Davenport v. Burke, 27 Idaho 464, 149 P. 511.

Upon his arrival in Coeur d'Alene, shortly after the accident, the defendant Elkins was taken before a justice of the peace and charged with reckless driving. To this charge he entered a plea of guilty and was fined $25. The plaintiffs offered in evidence the justice court docket and files containing the criminal complaint. The court admitted the exhibits over the defendants' objection that the records and files do not contain a warrant of arrest or show that one had been issued. In their brief defendants complain of the admission of these exhibits on the ground that the criminal charge was based upon the statements of two state highway employees, made to the officer who filed the complaint, that defendant Elkins was driving in a reckless manner when he passed their truck (which they had been using in sanding the highway) immediately before and about three-quarters of a mile from where the car left the road. One of these men testified that the Elkins car missed the truck by about three or four inches. This assignment is without merit. The objection now urged was not made in the trial court, and cannot now be urged here. Wormward v. Taylor, Idaho, 221 P.2d 686. The so-called basis of the criminal charge is taken from an offer of proof made by plaintiffs' counsel when the officer was on the stand. Defendants' objection to this offer was sustained on the ground that the justice court records are the best evidence. The effect of these records cannot be limited by a mere offer of proof, which was rejected. It appears from the exhibits and the testimony that the criminal charge is based upon the manner of driving which occasioned the accident.

Even if it be assumed that the guilty plea constituted an admission by the defendant as to the manner of his driving only at the time he passed the truck, and not at the time the car left the highway, it would still be admissible. Elkins, himself, testified that he was traveling about 25 miles per hour just before the accident. At that rate he would travel the three-fourths mile in less than two minutes. This would not be too remote to have some weight as an admission as to the manner of driving at the time of the accident.

A plea of guilty to a criminal charge, which alleges facts that are in issue in a civil action, is admissible against the party entering the plea, as an admission against interest. Langensand v. Obert, 129 Cal.App. 214, 18 P.2d 725; Olson v. Meacham, 129 Cal.App. 670, 19 P.2d 527; Idaho Falls National Bank v. Bennett, 42 Idaho 705, 247 P. 794; Notes 31 A.L.R. 278, 57 A.L.R. 506, 80 A.L.R. 1147, 130 A.L.R. 699; 31 C.J.S., Evidence, § 300 b, p. 1070.

The giving of the following instruction is assigned as error, to-wit: 'You are instructed that, until the contrary is proven, there is a presumption that the plaintiff, Freda B. Desmond, was exercising due and proper care for the protection of her person and the preservation of her life, at the time of the accident; this presumption arises from the instinct of self-preservation and the disposition of a person to avoid personal harm. This presumption is not conclusive but is a matter to be considered by the jury in connection with all the other facts and circumstances in the case in determining whether or not the plaintiff, Mrs. Desmond, was guilty of contributory negligence at the time of the accident.'

Such an instruction is not commended in cases where, as here, the injured party is living and able to testify, and the facts were fully developed by the evidence. Atchison T. & S. F. Ry. Co. v. Gutierrez, 30 Ariz. 491, 249 P. 66; Speck v. Sarver, 20 Cal.2d 585, 128 P.2d 16; Cole v. Ridings, 95 Cal.App.2d 136, 212 P.2d 597.

The general rule in some jurisdictions is that where the injured party is killed, or so incapacitated that he cannot testify, and there are no eye-witnesses to the accident, the plaintiff may rely upon the presumption that the injured person was exercising due care for his own safety. Conversely, where it is feasible to present the facts to the jury, the question of contributory negligence should be determined by the evidence, not by presumption. Breker v. Rosema, 301 Mich. 685, 4 N.W.2d 57, 141 A.L.R. 867 and anno. 872; Morris v. Chicago M., St. P. & P. R. Co., 1 Wash.2d 587, 97 P.2d 119; Sweazey v. Valley Transport, Inc., 6 Wash.2d 324, 107 P.2d 567, 111 P.2d 1010, 140 A.L.R. 1; Vance v. Grohe, 223 Iowa 1109, 274 N.W. 902, 116 A.L.R. 332; 38 Am.Jur., Neg., sec. 293 and sup.; 65 C.J.S., Negligence § 282.

Some jurisdictions permit a resort to the presumption in cases where conflicting evidence, or the evidence opposed to the presumption, leaves the issue of contributory negligence in doubt. 144 A.L.R. Anno. 1477; Karp v. Herder, 181 Wash. 583, 44 P.2d 808; Duehren v. Stewart, 39 Cal.App.2d 201, 102 P.2d 784. This rule was applied by this court in Webb v. Gem State Oil Co., 56 Idaho 465, 55 P.2d 1302; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Dept. of Finance v. Union Pac. R. R. Co., 61 Idaho 484, 104 P.2d 1110; and in Brown v. Graham, 62 Idaho 388, 112 P.2d 485; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566; Hooton v. City of Burley, Idaho, 219 P.2d 651. See also, Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317. These were all death cases, except Webb v. Gem State Oil Co., where the claimant was insane at time of hearing, and Dept. of Finance v. Union Pac. R. R. Co., where the injured party suffered a lapse of memory. It must be conceded that in such cases the reason for calling attention to the presumption is much more compelling than where the injured party is able to appear and testify. However, the same reasoning has been used in other situations. Engstrom v. Auburn Auto Sales Corp., 11 Cal.2d 64, 77 P.2d 1059; Barker v. City of Los Angeles, 57 Cal.App.2d 742, 135 P.2d 573; Worth v. Worth, 48 Wyo. 441, 49 P.2d 649, 103 A.L.R. 107; Beck v. Sirota, 42 Cal.App.2d 551, 109 P.2d 419.

A fundamental proposition of law is that wrong-doing is never presumed, but must be established by proof. The court properly instructed the jury that the burden is upon the plaintiffs to prove all of the material allegations of their complaints by a preponderance of the evidence. It likewise properly instructed the jury that the burden is on the Big West Realty, Inc., to prove its allegations of contributory negligence. Sec. 5-816 I. C. It has been said that the rule as to burden of proof casts a greater burden upon the party charging negligence than does the presumption of due care on the part of his opponent. Speck v. Sarver, 120 Cal.2d 585, 128 P.2d 16. If not greater the burden is at least equivalent to that imposed by the presumption. When the evidence or lack of evidence leaves the issue of negligence or contributory negligence in doubt or in equipoise, the law requires a decision against the party having the burden of proof, just as under like circumstances it requires a decision against him when he is confronted with a presumption of due care in favor of his opponent. So, under our statute making contributory negligence a matter of defense and casting the burden of proof upon the defendant, there is no necessity for reemphasizing the point by instructing as to the presumption, at least in any case where the plaintiff is alive and capable of presenting his side of the case to the jury. Speck v. Sarver, 120 Cal.2d 585, 128 P.2d 16; MacDonald v. Ogan, 61 Idaho 553, 104 P.2d 1106. The law seeks to place the parties on an equal footing at the trial. Here both...