Loomis v. Church

• Decision Date: 10 December 1954
• Docket Number: No. 8037,8037
• Parties: Darlene LOOMIS and Elmer Loomis, wife and husband, Plaintiffs and Appellants, v. Sherman CHURCH, Defendant and Respondent.
• Court: Idaho Supreme Court

Page 561

277 P.2d 561

76 Idaho 87

Darlene LOOMIS and Elmer Loomis, wife and husband, Plaintiffs and Appellants, v. Sherman CHURCH, Defendant and Respondent.

No. 8037.

Supreme Court of Idaho.

Dec. 10, 1954.

Anderson & Anderson, Pocatello, for appellants.

Parry, Keenan, Robertson & Daly, Twin Falls, and James, Shaw & James, Gooding, for respondent.

KEETON, Justice.

Appellants, Darlene Loomis and Elmer Loomis, are wife and husband. On January 13, 1951, Mrs. Loomis was a guest passenger in an automobile being driven on a public highway by respondent Church. The highway on which the car was being driven intersects Highway No. 26. There are stop signs at the crossing where the road on which Mrs. Loomis was being driven intersects this highway. While crossing the intersection defendant's car collided with a truck belonging to the Garrett Freightlines, driven by one of its employees, Mr. Staley. As a result of the collision Mrs. Loomis suffered injuries.

This suit was brought against the respondent Church to recover damages for injuries alleged to have been sustained.

In the complaint respondent is charged with driving in reckless disregard of the rights of others as defined by Section 49-1001, I.C. The complaint alleges that respondent did not stop at the stop sign where the highways intersect, did not look out for oncoming traffic on Highway No. 26; that he failed to observe the truck driven by the agent of Garrett Freightlines, which it is alleged was well lighted and visible. The answer denied negligence on the part of respondent, and in an affirmative defense alleged that the collision which caused damage to Mrs. Loomis was the result of negligence on the part of the driver of the truck of Garrett Freightlines; also alleged contributory negligence on the part of Mrs. Loomis; that appellants had been fully paid and compensated for the whole, or any or all of the injuries and damages suffered. The answer did not allege that respondent, or anyone representing him, had ever paid appellants anything; neither did it plead a release or settlement of the controversy. On issues joined the case was tried before a jury and verdict rendered in favor of defendant. Judgment was entered on the verdict and plaintiffs appealed.

The testimony discloses that when the car in which Mrs. Loomis was riding came to the intersection, she saw the stop sign, the highway, and the oncoming truck, and said to respondent: '* * * there is a stop sign and you better stop.' and respondent replied: '* * * I will stop twice at the next one, the next time,' and said: 'I got time enough to make it.' Respondent then drove the car onto Highway No. 26, and the truck and car collided.

The court gave the jury four instructions on contributory negligence, Nos. 12, 13, 14, and 15, and from these instructions we quote:

From instruction 12:

'Contributory negligence is negligence on the part of a person injured which, cooperating in some degree with the negligence of another, helps in proximately causing the injury on which the former thereafter complains.

'One who is guilty of contributory negligence may not recover from another for an injury suffered. * * *' Instruction 14:

'You are instructed that if the plaintiff Darlene Loomis was negligent and that her negligence contributed in any degree as a cause of her injury, then the defendant is entitled to your verdict.'

Instruction 15 advised the jury that appellant Darlene Loomis is charged with exercising reasonable care and caution for her own safety and she is required not to rely blindly upon the exercise of care and caution by the driver.

Appellants assign the giving of these instructions as error and particularly the parts which advise the jury that contributory negligence is, if proved, a defense to the action; arguing that where an injury is caused to a guest in an automobile by reason of the reckless disregard by the driver of the rights of others, ordinary negligence of the one injured is no defense.

In order for the injured appellants to recover from respondent for the injury complained of, it is necessary for them to prove that the conduct of respondent which occasioned the injury to Mrs. Loomis was due to the reckless disregard of her rights, that is, that respondent's conduct was destitute of heed or concern for consequences, especially foolishly heedless of danger, headlong, rash, wanton disregard, or conscious indifference to consequences. Mason v. Mootz, 73 Idaho 461, 253 P.2d 240; Foberg v. Harrison, 71 Idaho 11, 225 P.2d 69.

In support of respondent's position that contributory negligence is a defense in the matter before us, he cites Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712; Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733; Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369; French v. Tebben, 53 Idaho 701, 27 P.2d 474, 475; Dale v. Jaeger, 44 Idaho 576, 258 P. 1081; Shoemaker v. Floor, 117 Utah 434, 217 P.2d 382.

French v. Tebben, supra, was tried on the theory that contributory negligence was a defense and each of the parties requested instructions relative to contributory negligence. The contention that contributory negligence was not a defense was raised in the Supreme Court for the first time. This Court held that litigants must present the issues in this Court on the same theory they were presented in the lower court, and for that reason held that contributory negligence was an issue and specifically refused to pass on the question here advanced.

The case of Dale v. Jaeger, supra, was decided before the guest statute, Section 49-1001, I.C., was passed.

Hughes v. Hudelson and Curtis v. Curtis, supra, do not discuss or decide the question here presented.

In Dawson v. Salt Lake Hardware Co., supra, this Court held that where the appellants themselves requested an instruction on contributory negligence and the parties had tried the case in the lower court on the theory that contributory negligence was a defense, and both parties had requested specific instructions on the issue, it could not be asserted for the first time on appeal that contributory negligence was not involved.

In Shoemaker v. Floor, supra, the defense of contributory negligence was not interposed. The defendant in that case pleaded and contended that the plaintiff had assumed the risk. None of the authorities cited by respondent holds, when the question is presented, that ordinary negligence is a defense to a liability predicated on the contention that the acts of the defendant were committed with reckless disregard of the rights of others.

Further, in the case before us there was no testimony introduced which by inference or otherwise could be construed as constituting contributory negligence on the part of Mrs. Loomis.

We are not here concerned with or discussing what degree of negligence, if any, on the part of one claiming damages due to reckless disregard of the rights of others, might constitute a defense, nor are we here considering holdings which have prevented recovery where the injured party assumed the risk or where the acts of the one injured are such that it is a part, or an inducing cause, of a defendant's misconduct.

We merely hold that ordinary contributory negligence is not a defense in an action based upon reckless disregard of the rights of others under our guest statute. 38 Am.Jur. 854, Sec. 178; 65 C.J.S., Negligence, § 198a, p. 922; V. 4, Blashfield Cyc. of Auto. Law, Sec. 2396, page 539; V. 9, Blashfield Cyc. of Auto. Law, Sec. 5973, page 149; Amidon v. Hebert, 93 Cal.App.2d 225, 208 P.2d 733; Schneider v. Brecht, 6 Cal.App.2d 379, 44 P.2d 662. Hence the instructions complained of were erroneous.

Respondent contends that even assuming that the instructions were erroneous and no contributory negligence was shown, nevertheless the judgment should be affirmed for the following reasons: first, that the verdict returned is the only one justified by the evidence, and appellant was not entitled to a favorable decision in any event, and that the court would have been justified in directing a verdict against appellants; second, that where two causes of action arise from one transaction and the injured party elects to pursue one, he cannot thereafter pursue the other cause when the other is disproved by, and repugnant to, the facts alleged in the complaint of the first elected cause of action.

These contentions are premised on the following claimed facts: In a report of the accident which is dated January 31, 1951, and thereafter signed by Mrs. Loomis on the 16th of March, 1951, she exonerated respondent from responsibility and asserted in such statement that at the time of the accident and injury complained of respondent used caution, drove in a careful manner, stopped at the stop sign; that thereafter appellants had filed a complaint against Garrett Freightlines claiming damages for the same accident and injury here complained of; that the complaint in that action was verified by Mrs....