Krahn v. Pierce

• Decision Date: 14 June 1971
• Docket Number: No. 3850,3850
• Citation: 485 P.2d 1021
• Parties: Phil KRAHN, Administrator of the Estate and Personal Representative of Vincent Cirillo, Deceased, and Betty Louise Cirillo, Appellants (Plaintiffs below), v. Geraldine K. PIERCE and Garland R. Reneau, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1021

485 P.2d 1021

Phil KRAHN, Administrator of the Estate and Personal Representative of Vincent Cirillo, Deceased, and Betty Louise Cirillo, Appellants (Plaintiffs below), v. Geraldine K. PIERCE and Garland R. Reneau, Appellees (Defendants below).

No. 3850.

Supreme Court of Wyoming.

June 14, 1971.

David N. Hitchcock, Laramie, Robert L. Tognoni, Englewood, Colo., for appellants.

Alfred M. Pence, or Pence & Millett, Laramie, for appellee Garland R. Reneau.

No appearance for appellee Geraldine K. Pierce.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiffs brought an action to recover damages for injuries incurred in an accident involving the Cirillo car driven by decedent in which his wife, Betty Louise Cirillo, was a passenger; the car driven by Geraldine K. Pierce, a party defendant; and a station wagon driven by garland R. Reneau, also named as a defendant. During the pendency of the action, plaintiffs and the defendant Pierce entered into a 'Covenant Not to Execute' and for such reason counsel for defendant Pierce did not appear or participate in the trial of the case. The jury, however, was instructed that such fact should be disregarded in its deliberations, and in arriving at a verdict or verdicts the jury was told to consider the matter as though defendant Pierce was present with counsel throughout the trial. Four separate verdicts were returned by the jury. In two of those verdicts the jury found generally for the plaintiffs and against the defendant Pierce and assessed damages in favor of the plaintiff-administrator in the sum of $10,000 and for plaintiff Cirillo in the sum of $7,500. In the other two the jury found generally for the defendant Reneau and against the plaintiffs. Judgment was entered accordingly, a motion and amended motion by plaintiffs for new trial were denied, and plaintiffs have now appealed from the said judgment. The defendant Pierce did not appear or participate in the appeal.

Turning briefly to the circumstances with respect to the accident, the record discloses that the Cirillo car, shortly after 9:45 a. m. on January 26, 1968, was proceeding northward on U. S. Highway 287 and had reached a point some four miles north of the Colorado-Wyoming State line at a 'Do Not Pass' zone on the two-lane highway. At the time of the accident and prior thereto intermittent fog was encountered, which at times was quite dense, and the highway at that point was very icy and 'slick' and 'slippery.' The defendant Pierce's car was proceeding south on the highway, and according to her testimony about the time that she was approaching the scene of the accident the fog 'kept getting denser' and she slowed to about 40 m. p. h. Suddenly a truck, also proceeding southward but at a slower speed, loomed up in front of her and she 'touched my brakes very lightly to try and slow myself down.' As she did so the front end of her car 'veered' to the left and she tried to get 'into the left-hand borrow-pit.' During that maneuver she collided almost head-on with the Cirillo car in its own lane of travel and remembered nothing further.

The defendant Reneau was proceeding northerly on the highway behind the Cirillo car and testified that some two miles disant from the scene of the accident he encountered heavier fog than previously encountered, and also ice, and had reduced his speed to 25 m. p. h. At the scene of the accident the fog was 'very heavy' and he slowed to 20 m. p. h. He then said, 'As I came in out of the fog the first thing I saw was a car (the Cirillo car), was a man hanging out of a car crosswise in the road,' which he previously fixed as some 50 feet distant. He attempted evasive action without success and the right from fender of his station wagon came in contact with the Cirillo car in the area over the right rear wheel.

The Cirillo and Pierce cars, as disclosed by the pictures taken at the scene, were extensively damaged and according to the investigating highway patrolman were 'total' losses. He also said the damage to the Reneau station wagon was 'major,' which also is borne out by the pictures. As a result of the accident plaintiff Cirillo's husband was killed and she was badly injured. Further elaboration of the evidence presented will be made in our discussion of the specific points raised by plaintiffs on this appeal.

In support of their claim of error in the trial, the plaintiffs advance some twelve points, all relating to procedure. Some relate to the issue of damages and will not be discussed for the reason it is not asserted that the verdict exonerating Reneau from liability was not supported by substantial evidence. In addition, no attack is made on the amount of damages assessed, and thus any error with respect to evidence relating to the issue of damages is harmless and not grounds for reversal. Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223, 235, rehearing denied 69 P.2d 623.

The first point raised relates to the failure of the trial judge to discharge and dismiss a prospective juror for cause. In the voir dire examination of Eugene E. Dunn it was established that there was a relationship of attorney and client between his father, whose business was managed by Eugene, and the law firm of which Mr. Pence, representing Reneau, was a member. The effect of such a relationship was extensively discussed by this court in Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 261, 72 A.L.R.2d 664, rehearing denied 330 P.2d 112, and it was there held under our statute, § 1-121, W.S.1957, which does not specify such a relationship as a disqualification of a prospective juror, that any bias or prejudice which might be said to result from such a relationship was 'at the most, only a rebuttable presumption, and that the fairness and impartiality of the juror is a matter of fact to be determined by the trial court in the exercise of its sound discretion.' While we will agree that Dunn in some of his responses was somewhat vacillating, when the voir dire is considered as a whole we cannot say that the trial judge abused his discretion in concluding that the juror would not be unfair or partial in his deliberations. In Redwine it was also mentioned that no case was found, absent a statute, wherein it was held to be 'reversible error' to overrule a challenge for cause because of the relationship, and the annotation on the subject in 72 A.L.R.2d 682, § 7(a), as supplemented by the Later Case Service, discloses that the same situation continues to prevail.

The next point relates to the exclusion of an opinion of highway patrolman Isabell with respect to a 'gouge mark' upon the highway made by a piece of metal from the 'A' frame of the Cirillo car before it came to rest following the collisions with the defendants' vehicles. By way of preface to the point raised, the record discloses Isabell was patrolling the highway and while some two miles north of the scene of the accident received notice of its occurrence. He arrived at the scene at 10 a. m., observed the circumstances existing, and called for assistance. Patrolmen Kopriva and Brown responded shortly thereafter and assisted Isabell in the investigation, particularly with respect to 'the point where the debris existed,' the location of the vehicles on the highway following the collision which had not been moved, the measurement of pertinent distances, and the taking of pictures. The so-called 'debris' area was roughly a little right of the center of the northbound lane. The 'gouge mark' started there and in a 'continuous uninterrupted mark' ran in an arched curve to the north which bordered the centerline of the highway, ran underneath the rear of the Reneau station wagon, where it came to rest at approximately one-half the distance of the 'gouge mark,' then veered to the northeast under the front of the Cirillo car, where it came to rest, for a total distance of 59 feet from the point of beginning. The witness was then asked if from his experience as an officer he had an opinion 'as to whether or not that (the 'gouge mark') was made from one movement or two movements.' This was objected to as 'calling for a conclusion without proper foundation.' The patrolman was permitted to answer 'yes' or 'no' if he had an opinion, and upon stating he did have an opinion was again asked to give his opinion. Defendant again objected on the ground this was 'Improper, invading the province of the jury, calling for a conclusion of the witness.' The objection was sustained.

No offer of proof was made and it is not entirely clear to us, and apparently was not clear to the trial court in view of a later ruling on a similar question put to patrolman Brown which we shall later mention, as to the nature of the testimony plaintiff was attempting to elicit and for what purpose. Reference is made in their brief to genralities as to the facts being subtle and complex, with which we can agree, but it is not pointed out wherein that testimony was particularly pertinent in view of the evidence preceding it relating to the 'gouge mark' or what effect the exclusion of the opinion might have had upon the verdict of the jury. No doubt we would be justified in rejecting the point on that basis alone. Watson v. Klindt, 73 Wyo. 402, 280 P.2d 282, 283.

We are not so inclined, however, inasmuch as the point poses an important problem concerning the admissibility of expert testimony, particularly with respect to the mounting liberal trend in motor vehicle accident cases. Neither do we think, as argued by the defendant, that the point should be disposed of on the basis that the ruling was based on the lack of foundation. It is equally reasonable that the ruling was based upon the oft-applied rule that the opinion would invade the province of the jury. What we say here will also relate to some extent to another point raised concerning testimony as to 'safe speed.'

We have...