Kudrna v. Comet Corp.

• Decision Date: 15 December 1977
• Docket Number: No. 13572,13572
• Citation: 175 Mont. 29,34 St.Rep. 1386,572 P.2d 183
• Parties: Josephine KUDRNA et al., Plaintiffs and Appellants, v. COMET CORPORATION et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 183

572 P.2d 183

175 Mont. 29

Josephine KUDRNA et al., Plaintiffs and Appellants, v. COMET CORPORATION et al., Defendants and Respondents.

No. 13572.

Supreme Court of Montana.

Submitted June 9, 1977.

Decided Nov. 23, 1977.

Rehearing Denied Dec. 15, 1977.

Gene Huntley (argued), Baker, Maurice R. Hunke, Dickinson, N. D., for plaintiffs and appellants.

Crowley, Haughey, Hanson, Gallagher & Toole, Bruce R. Toole (argued), Billings, Anderson, Symmes, Forbes, Peete & Brown, Weymouth D. Symmes (argued), Billings, for defendants and respondents.

SHEA, Justice.

This is an appeal from a judgment in favor of defendants in a survivorship and wrongful death action entered on a jury verdict in the District Court, Dawson County. Plaintiff further appeals from an order denying plaintiff's motion for a directed verdict, and from an order denying motion for judgment notwithstanding the verdict or in the alternative a new trial.

Gilbert J. Kudrna was killed while riding as a rear seat passenger in a 1975 Dodge van owned by the McQuade Distributing Co., Inc., of Bismarck, North Dakota, and driven at the time of the collision by Gerard McQuade. McQuade was also killed. Two other passengers riding in the McQuade van were not injured. The collision was with a semi-truck and trailer leased by the Comet Corp. Gilbert Kudrna's widow, Josephine Kudrna, brought a survivorship action on behalf of her husband's estate and a wrongful death action on behalf of herself and four children.

The events leading to the collision were:

On February 7, 1975, Interstate 90 was closed between Laurel, Montana on the east and Livingston, Montana on the west because of winter storm conditions.

On the following morning the highway was reopened for traffic in both directions. It was clear and sunny but very cold; the temperature was approximately five degrees below zero Fahrenheit. The surface of the highway in the general area where the collision occurred was snow packed and slippery; the pavement was covered and the center line obscured. The area where the collision occurred is approximately 6.5 miles west of Big Timber, Montana, on U. S. Highway 10, which is, at this location, a two lane undivided asphalt paved highway that is an interconnecting portion of Interstate 90.

At about 9 o'clock a.m. a semi-truck leased and operated by the defendant Mid-West Coast Company, driven by defendant James Kennely with defendant Richard Hendrick as codriver, left Livingston, Montana proceeding in an easterly direction on Interstate 90. It was followed a short time later by a semi-truck leased and operated by the defendant Comet Corp., driven by defendant Robert D. Hamblen, also traveling east on Interstate 90.

Approximately 6.5 miles west of Big Timber, the first truck (Mid-West Coast) slowed to a stop in its eastbound lane of traffic. Its brakes had "frozen" and its driver was unable to release them. Because of snow kicked up at the rear of the vehicle as it traveled down the highway, the rear brake and clearance lights of the Mid-West Coast truck were completely covered by the time the truck began to slow.

As the second truck (Comet) approached, at a speed of between 40 and 50 miles per hour, its driver could see the Mid-West Coast truck from a distance of approximately 1700 feet. At some point between 100 and 500 feet behind Mid-West Coast's truck, the Comet driver realized Mid-West was not moving and that his truck could not be stopped in the distance separating them. Deciding to pass, rather than either going into the ditch or running into the rear of Mid-West Coast's trailer, Comet's driver turned into the westbound lane as he pulled out to get around the stationary vehicle. As he began his passing maneuver, Comet's driver looked up the westbound lane for oncoming traffic and saw the McQuade van approaching at a distance he estimated to be three quarters of a mile.

Comet's semi-truck passed the Mid-West Coast truck and was completing the motion of returning to its proper lane, when the left front side of the McQuade van collided with the left side of Comet's trailer at its rearmost axle, near the back end of the trailer.

The exact point of impact on the highway could not be determined because of the snow cover on the surface of the road, but the highway patrol investigation found the impact to be "near" the center line of the highway.

The driver of the McQuade van and Gilbert Kudrna were killed as a result of the collision. Two other van passengers were not injured. Neither the driver nor the codriver of the Comet semitruck was hurt. The trailer was damaged, its rear axle assembly torn loose by the impact of the collision.

On July 8, 1975, the estate, widow and children of Gilbert J. Kudrna brought suit against Comet Corp. and its driver; Mid-West Coast Company and its two drivers; and McQuade Distributing Co., Inc., alleging that the death of Kudrna had been approximately caused by the negligence of the defendants.

Trial of the cause began on June 7, 1976. Plaintiffs and defendant McQuade Distributing Co., Inc., settled upon a covenant not to sue and the action against McQuade was ordered dismissed on June 8, 1976. On June 11, the jury found in favor of defendants. Judgment was entered on the verdict. Following the District Court's denial of plaintiffs' motion for judgment notwithstanding the verdict or alternatively, for a new trial, plaintiffs appealed.

The issues raised for review are:

(1) Whether the District Court's grant to defendants Comet Corp. and Mid-West Coast Company of a total of eight peremptory challenges constitutes reversible error? Defendants contend they had interests and defenses antagonistic in fact and thus were entitled to four peremptory challenges each.

(2) Whether the District Court's refusal to admit an allegedly res gestae statement offered by plaintiffs is reversible error?

(3) Whether the District Court should have directed a verdict of liability against Comet Corp., or should have granted plaintiffs' motion for judgment notwithstanding the verdict or for a new trial? Comet Corp. contends the issues of sudden emergency and proximate cause entitled the case to go to the jury.

(4) Whether the District Court should have directed a verdict against Mid-West Coast Company or should have granted plaintiffs' motion for judgment notwithstanding the verdict or for a new trial as against Mid-West Coast? Mid-West Coast contends that, even assuming negligence for statutory safety regulations, the issue of proximate cause was a jury question.

Issue (1). Montana's jury challenge statute, section 93-5010 R.C.M.1947, provides in part:

"* * * Challenges to individual jurors are for cause or peremptory. Each party is entitled to four peremptory challenges * * *."

Plaintiffs rely on Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323 (1915), and cases following Mullery, where this Court allowed a total of four peremptory jury challenges to multiple defendants. Plaintiffs contend both defendants in the present action together constitute a "party" and should have been allowed no more than four peremptory challenges between them.

In a recent decision, Leary v. Kelly Pipe Co., 169 Mont. 511, 549 P.2d 813, 816, 33 St.Rep. 413, 416 (1976), this Court stated:

"* * * Mullery stands for the proposition that under our jury challenge statute * * * the words 'each party' in reference to the permitted four peremptory challenges means 'each side' unless the positions of the codefendants are hostile to each other. The opinion suggests that hostility between nominal defendants may be shown 'by pleading, representation, or evidence.' "

Leary expressly overruled an earlier decision, Ferron v. Intermountain Trans. Co., 115 Mont. 388, 143 P.2d 893 (1943), to the extent that Ferron may be interpreted as requiring a collective total of four peremptory challenges irrespective of the number making up either parties plaintiff or parties defendant.

In Annotation Jury: NUMBER OF PEREMPTORY CHALLENGES ALLOWABLE

IN CIVIL CASE WHERE THERE ARE MORE THAN TWO PARTIES INVOLVED, 32 A.L.R.3d 747, 761, it is stated:

"In the absence of a statutory provision expressly requiring parties to join in peremptory challenges, it has been held or recognized that where it is determined that the interests of multiple parties are diverse, or their respective defenses are different or hostile, each of the multiple parties is entitled to the full number of peremptory challenges allowed by law to a 'party'."

From the earliest stages of this action, Comet Corp. and Mid-West Coast Company shared neither an identity of interest nor a common defense. Each was charged with a separate act of negligence alleged to have proximately caused the collision, and each presented a separate defense. In their respective answers, and in the pretrial order, Comet and Mid-West each maintained the other's negligence caused the collision. During trial, each defendant's case tended to place responsibility on the other.

These defendants had interests and defenses antagonistic in fact. The District Court recognized this hostility and properly allowed each defendant four peremptory challenges.

Issue (2). This issue questions the exclusion of a statement made between two and ten minutes before the collision by Hector Rogers, who was eastbound on Interstate 90 when he was passed by Comet's semi-truck. Immediately after he was passed, Rogers exclaimed to passengers in his vehicle, with respect to the Comet vehicle, "you wait and see; just a few miles down the road he'll either be in the ditch or have killed someone." This statement was ruled inadmissible by the District Court. Plaintiffs contend it tends to show that Comet's truck was traveling too fast at the time of the collision, and it should have been admitted as within the res gestae exception to otherwise objectionable testimony.

Section 93-401-7, R.C.M.1947, states:

"Where, also, the declaration, act, or omission forms...