Koppang v. Sevier

• Decision Date: 12 January 1938
• Docket Number: 7734.
• Citation: 75 P.2d 790,106 Mont. 79
• Parties: KOPPANG v. SEVIER.
• Court: Montana Supreme Court

75 P.2d 790

106 Mont. 79

KOPPANG v. SEVIER.

No. 7734.

Supreme Court of Montana

January 12, 1938

Appeal from District Court, Flathead County, Eleventh District; J E. Rockwood, Judge.

Action by Minnie Koppang against H. E. Sevier to recover for the death of plaintiff's husband in an automobile accident. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. W Speer and H. B. Hoffman, both of Great Falls, and E. M Child, of Kalispell, for appellant.

C. H. Foot, E. B. Foot, and A. T. Aronson, all of Kalispell, and C.J. Dousman, of Helena, for respondent.

STEWART Justice.

This is an appeal by defendant, H. E. Sevier, from a judgment entered against him in the district court of Flathead county. The case was previously before this court on an appeal by plaintiff from a judgment of dismissal entered on motion for judgment on the pleadings. It was then held that the receipt of compensation from the State Industrial Accident Board did not constitute a bar to the action. Koppang v. Sevier, 101 Mont. 234, 53 P.2d 455. The case is now here after trial on the merits.

The former opinion substantially detailed the facts as alleged in the complaint; however, since the sufficiency of the evidence is one of the questions now raised, some further discussion thereof will be necessary. The parties will be referred to as they appeared in the trial court.

In his answer defendant admitted the occurrence and the results of a collision between his car and the deceased, Koppang, but denied that it was due to neglect or carelessness on his part. As a separate defense, he alleged contributory negligence on the part of Koppang.

After plaintiff's case was closed, defendant moved for a nonsuit. At the close of all of the evidence he moved for a directed verdict. Both motions were denied. A verdict for plaintiff was returned. Motion for a new trial was made and denied.

Eighteen specifications of error are urged. They may be treated under five general heads: (1) Conduct of counsel; (2) instructions; (3) admissibility of Exhibit 5; (4) admission of oral testimony; and (5) sufficiency of the evidence. We shall discuss the assignments in that order.

The alleged misconduct occurred in the opening statement of the case to the jury by plaintiff's attorney. From the pleadings it appeared that Koppang was insured under the Workmen's Compensation Act, Rev.Codes 1921, § 2816 et seq., as amended, and that after his death, plaintiff, his widow, was awarded $5,760 compensation; this fact was set up as a separate defense in the answer as a bar to recovery. It was the ruling on this plea that brought about the previous appeal. At the opening of the trial the following statement was made to the jury by plaintiff's counsel: "After the death of Mr. Koppang, who along with other employees of the state was insured by the Industrial Accident Board the compensation was awarded to Mrs. Koppang by the Industrial Accident Board in the amount of $5,760 payable in installments. Under the law when a suit is brought against one who causes or is responsible for an injury or death and a recovery is had, then one-half of this amount which has been paid by the Industrial Accident Board or other insurer must be paid back and therefore the State Industrial Accident Board is interested in this case because if there is a recovery they will first be entitled to one-half of $5,760."

Thereupon counsel for defendant said: "If the court please, at this time I question the propriety of that statement of counsel and I want to make an objection to it." Plaintiff's counsel then replied: "This has been, I think, thoroughly gone into in previous history of this case and the answer set up the fact of payment by the Workmen's Compensation Board. I think it is very material. I just wanted to say that is the reason Mr. Dousman, attorney for the Industrial Accident Board, is here in the case. I think that is all I intend to say at this time." Defendant's counsel then said: "I want to renew my objection." The court: "Very well, make your objection whatever it is." Defendant's counsel: "We object to the statement of counsel with reference to the compensation and to the fact that part of this money would go to the State of Montana upon the ground it is not involved in this case and was an improper statement on the part of counsel." The court: "Well, I don't know. What is your desire?" Defendant's counsel: "Well, I just want to make the formal objection here. If the court please, I am not arguing it at the present time."

There was no request that the statement be withdrawn, or that counsel be reprimanded, or that the jury be admonished or discharged. No ruling of the court was invoked. In the light of the record, was error committed? The presumption is that the trial court was correct. In view of the fact that counsel made no request for a ruling even after the court asked him what his desire was, it would be overtechnical to disregard that presumption and place the trial court in error--especially so where there is no assignment that the verdict is excessive. See, generally, 4 C.J.S., Appeal and Error, § 297, p. 590, 592, also § 329, p. 680; State v. Biggerstaff, 17 Mont. 510, 516, 43 P. 709.

The matter of compensation was pleaded in the answer and controverted in the reply. Pleadings are often read to the jury and are sometimes taken to the jury room along with other papers and exhibits. Paxton v. Woodward, 31 Mont. 195, 213, 78 P. 215, 107 Am.St.Rep. 416, 3 Ann.Cas. 546. The transcript does not disclose affirmatively whether either of these things occurred, but either was possible. The pleadings did not carry notice of the fact that under the law, in the event of recovery, plaintiff would have to turn back half of the compensation award; on the contrary, they showed only that the award had been made to plaintiff. It was not error to advise the jury that she would only be able to retain half of that amount in case its verdict was for her. In such case it would have been proper, and we think the better practice, for the court, at the request of counsel, or of its own motion, to have instructed the jury on the point, rather than to rely simply on counsel's statement that such was the law. The matter did not come within the purview of the rule forbidding reference to insurance in damage cases generally. See Francis v. Heidel, 104 Mont. 580, 587, 68 P.2d 583, and cases cited therein.

Ten of the assigned errors relate to instructions given and refused. Instruction No. 23 was given, as follows: "A person lawfully and carefully using a highway has the right to assume that all other persons using the highway will use ordinary care and caution, and that drivers of motor vehicles will obey and abide by the statutory traffic law and regulations. Therefore, the deceased, A. A. Koppang, had the right to presume that the defendant would perform his duty and obey the statutory traffic rules, and he was not required to anticipate that the defendant would not stop his truck when flagged." Defendant excepted on the ground that "it is conflicting and ambiguous in that it states that a person is governed by the statutory traffic laws and regulations in one part of the instruction and then sets up a different rule in the case of a flagman or the duty of a driver of a motor vehicle with reference to the flagman." The exception is without merit.

It is a well-settled rule in this jurisdiction that instructions must be considered as a whole, and that, if they fairly tender the case to the jury, it is not reversible error that one or more of the instructions, standing alone, is not as full or accurate as it might have been. The subject matter of the instruction was touched upon and qualified by at least five other instructions.

Under the terms of section 1788, Revised Codes, it is provided that the State Highway Commission shall formulate necessary rules and regulations for the construction, repair, maintenance, and marking of state highways. It would seem that defendant's exception fails to take into consideration the power of the Highway Commission under this statute to make necessary rules and regulations providing for a flagman. In view of all the instructions given, it cannot be said that instruction 23, by reason of the provisions of the safety card and flagman regulation, presented defendant's conduct to the jury as negligence as a matter of law. The instruction fairly submitted that portion of the case to the jury.

The court refused to give defendant's requested instruction No. 10, reading as follows: "You are instructed that the instructions on the card handed to the defendant and admitted in evidence in this case are not rules of the road which were binding upon the defendant. The instructions upon such card constitute a caution to the driver for his own protection and that he proceeds at his own risk as to himself and property when traveling over a road under construction. In traveling over a highway under construction a driver is bound by the same rules and regulations as upon a highway not under construction; that is to say, he must use such care and caution in operating his motor vehicle in each case as a reasonably careful and prudent person would ordinarily exercise under the circumstances as it [they?] may exist or arise."

Section 1788, supra, gave the Highway Commission power to make and enforce reasonable rules and regulations for the protection of the traveling public on roads under construction, as well as for the protection of the workmen. The duty of the defendant was substantially incorporated in another instruction given by the court.

The court gave instruction 5 over defendant's objection, also bearing on the subject matter of the instruction just discussed. We quote...