Lewis v. Steele

• Decision Date: 28 April 1916
• Docket Number: 3638.
• Citation: 157 P. 575,52 Mont. 300
• Parties: LEWIS v. STEELE.
• Court: Montana Supreme Court

157 P. 575

52 Mont. 300

LEWIS v. STEELE.

No. 3638.

Supreme Court of Montana

April 28, 1916

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Abram G. Lewis, as administrator of the estate of Rose Amelia Lewis, deceased, against Charles Steele. Judgment for plaintiff, motion for new trial denied on condition of a remittitur, and defendant appeals. Judgment and order reversed, and cause remanded for new trial.

E. B Howell and William Meyer, both of Butte, for appellant.

Jesse B. Roote and J. E. Healy, both of Butte, for respondent.

SANNER J.

While crossing the intersection of Columbia (or Clark) and Park streets, in the city of Butte, Rose Amelia Lewis was struck by an automobile and killed. The machine belonged to the defendant, but was being driven by Ralph Steele, one of his minor sons, and was conveying his sons with a party of their friends to a high school dance at the Columbia Gardens. The accident occurred about 8:35 p. m., on June 5, 1913, and the complaint, which is by the administrator of the estate of Rose Amelia Lewis, charges that her death was due to negligence in the handling of the machine, and seeks to hold the defendant liable therefor under the doctrine of respondeat superior.

The defendant answered, admitting the accident, but denying negligence, as well as all the allegations upon which his responsibility is sought to be based; and as a separate defense he submitted an elaborate plea the effect of which is to allege that there was no negligence, but, if there was the plaintiff should not recover, because the injuries and death of Rose Amelia Lewis were due to her contributory negligence, the particulars of which are duly set forth. A demurrer to this plea as insufficient to constitute a defense was sustained.

Trial was to a jury. The evidence on the part of plaintiff tended to show that there was negligence in the handling of the machine, and that such negligence was the proximate cause of the accident. To establish the defendant's responsibility reliance was placed upon a deposition of defendant himself the substance of which, so far as pertinent here, is:

That he has two sons, Chester, then aged 19, and Ralph, then aged 17; that he bought the machine in May, 1912, to be used, and it was used, for the pleasure of himself and his family, and for his business when necessary; that it had been kept since September, 1912, in a garage adjoining his premises and built by him for this and other purposes, and to that garage each of his sons had a key; that his sons were taught by the salesman how to operate the machine, and "either one of them operated it generally"; that he sometimes operated the machine himself, but always in company with one or both of the boys, because he had not become sufficiently adept to trust himself with it alone. "I let the boys do the operating of it at all times, especially when I went out with my family and on other occasions. In fact, the boys operated the machine a great deal without me being present in the machine, and I knew that. I did not know they operated it for their own uses, purposes, and pleasure whenever they chose to do so. They usually consulted me if they wanted to go out with it or do anything with it, * * * and that was the case on the 5th day of June, 1913. They had consulted with me about the use of it, and I had given them the machine to use on that day, and upon that occasion. At that particular time they were to take a party of their own friends out to the Gardens, and it had been arranged that Chester was to bring the machine back and take my wife and I out to the Gardens after they had taken their friends out there. * * * I did not give this permission to both of the boys, to both Ralph and Chester, but gave it to Chester several days before with the understanding that they were to take a party of their own friends out to the Gardens. * * * There was to be a dance at the Gardens called the 'Junior Prom' of the high school, which was the occasion of speaking of this in advance. Both of these boys were not high school boys, but one of them, Ralph, was in the high school. Q. * * * Was it the desire of yourself and your family to participate in this dance at the Gardens or be present at it in consequence of the fact that Ralph was a member of the high school; that is, that he was attending the high school? A. Yes. * * * I never kept track of how often Ralph ran this machine in my presence; it was quite often. The boys ran the machine indifferently, at one time one, and at one time the other. * * * I did not see the machine leaving my house on June 5, 1913, and did not know at that time which of the boys was running the machine. I knew and had consented to either or both of the boys running the machine at any time. * * * I do not know that Chester was to run the machine back. It was spoken of that Chester should run it back on that evening, and the matter of Ralph running it out was spoken of, too, but not to me. I had told Chester that he could run the machine, but Mrs. Steele got Chester to consent to Ralph running the machine to the Gardens. She subsequently informed me of this arrangement. My impression is it was after the machine left for the Gardens. Ralph was to run the machine on the outward trip to Columbia Gardens, and Chester back, to bring myself and my wife out. * * * I did not employ any other chauffeur or person to operate or run this automobile than the two persons that we have mentioned. * * * I did not consider those persons employed. * * * I consider an employé is one you pay money to."

The evidence on the part of the defendant tended to rebut that of the plaintiff upon the issue of negligence, and also, to some slight degree, that upon the issue of responsibility. In connection with the latter, however, the testimony of Chester Steele makes it perfectly clear that the machine left, with its load, from defendant's home, and that Ralph was then driving.

The verdict awarded the plaintiff $10,000, and defendant's motion for new trial was denied on the condition--which was accepted--that the plaintiff remit $4,000. Judgment being entered for $6,000 and costs, the defendant has appealed therefrom, as well as from the order denying him a new trial.

Sixty-two alleged errors are assigned, but the principal questions presented are whether the demurrer to the defendant's plea of contributory negligence was properly sustained, and whether there was sufficient evidence to establish prima facie the responsibility of defendant.

1. The answer to the first of these questions may be found in Day v. Kelly, 50 Mont. 306, 311, 146 P. 930, 931, wherein this court, holding that a plea of contributory negligence may be coupled with a denial of primary negligence, said:

"The plea of contributory negligence, when coupled with a denial, is always hypothetical in effect, if not in form, and amounts to no more than this: I deny absolutely that I am guilty of negligence; but assuming, without admitting it, that some act of mine was negligent in character and proximately contributed to plaintiff's injury, nevertheless plaintiff's negligent acts united with my act to produce the injury, and without which the injury would not have occurred."

Again, in Nelson v. Northern Pacific Ry. Co., 50 Mont. 516, 531, 148 P. 388, 392, it was recognized that a plea of contributory negligence might be coupled with a denial of negligence, and the view expressed that:

When so made, the plea "involves merely a hypothetical admission, and does not in any measure relieve the plaintiff of the burden of proving negligence on the part of the defendant in some one or more of the particulars alleged in the complaint."

This being so, the plea at bar, which does in express terms exactly what we have twice said its office is to do, cannot be deemed legally insufficient.

There is some insistence by the respondent that no prejudice was occasioned by this ruling, because there was evidence suggesting contributory negligence, and instructions were given upon that subject. Counsel ignore the necessary legal effect of the ruling, which was to render inadmissible any evidence on contributory negligence considered as a defense or, in other words, to take that question out of the case unless raised or suggested by the plaintiff's own proof. That it was raised incidentally, and that instructions upon the subject may have thereby been justified, does not cure the error in depriving the defendant of the right, from his point of view, to bring that matter into prominent relief as an affirmative defense to be supported by...