Mattson v. Bryan

• Decision Date: 02 December 1968
• Docket Number: No. 10016,10016
• Citation: 448 P.2d 201,92 Idaho 587
• Parties: Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 201

448 P.2d 201

92 Idaho 587

Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.

No. 10016.

Supreme Court of Idaho.

Dec. 2, 1968.

Brown, Peacock & Keane, Kellogg, for appellant.

Paul C. Keeton and D. K. Worden, Jr., Lewiston, for respondents.

SMITH, Chief Justice.

Respondents (plaintiffs) Wamsleys, minors, brought this action by their guardian ad litem for recovery of damages on account of the alleged wrongful death of their mother, Marian Wamsley, aged 38 years. The death of Mrs. Wamsley resulted January 15, 1966, when an automobile in which she was riding, driven by appellant (defendant) James C. Bryan, collided with a truck, driven by one Udell Anderson. The present appeal is from a judgment of $44,500 entered on the verdict returned by the jury against appellant in favor of respondents and from an order denying appellant's motion for a new trial.

Marian Wamsley divorced her husband, father of the children, during the year 1961. Mrs. Wamsley was the custodian of the children. Her income was $240 a month which she received as child support money from her former husband. For some time prior to her death she had been attending a teacher's normal school or college in Lewiston, Idaho; she had not as yet received a teacher's certificate.

Appellant, a married man, had met Mrs. Wamsley two or three times prior to the night January 14-15, 1966. Appellant did not reveal his marital status to Mrs. Wamsley.

During the evening in question, appellant met Mrs. Wamsley about 9:00 p.m., in a Lewiston night club. Appellant testified Mrs. Wamsley had been drinking prior to her arrival at the club, and that while there he had a beer and she a mixed drink; that they then proceeded to Ahsahka, where they purchased three beers which they consumed in appellant's automobile; that they next proceeded to a club in Orofino where appellant had a beer and she a mixed drink; that upon leaving the club in Orofino, they parked a while at a closed service station, and then purchased gasoline at another station in Orofino; that during the return trip toward Lewiston, both slept from time to time, in appellant's car parked by the side of the highway. Appellant further stated that while Mrs. Wamsley did not object to his driving, she did say, addressing appellant, 'You are sleepy and you are tired. Would you let me drive'; and again, that she stated, 'she knew I was tired and says, 'How about me driving? Can I drive?' I said, 'no, I will drive my own car.''

Appellant further testified that as to the rest of the trip Mrs. Wamsley intermitently slept with her head on the front seat; that she was 'more or less intoxicated,' and at the time of the accident he, appellant, did not know if Mrs. Wamsley was awake or asleep.

At approximately 6:00 a.m. of January 15, appellant, proceeding in a westerly direction, on U. S. Highway 95 about 3 1/2 miles east of Lewiston, collided head-on with the truck. The accident occurred in the eastbound lane, which was appellant's left-hand, and wrong, lane of traffic. Mr. Anderson, driver of the truck, testified that appellant's automobile, after having been operated in an erratic manner, suddenly veered into his (Anderson's) lane of traffic, where the two vehicles came together. Both vehicles left skid marks-the bread truck 32 feet 6 inches and appellant's vehicle 57 feet 6 inches.

Appellant testified he had no recollection of the cause of the accident; that the last he remembered Mrs. Wamsley was lying with her head on the front seat of his automobile. He stated he might have gone to sleep at the wheel or he might have 'blacked-out'; that he had had blackouts as a result of a 1965 industrial accident; that these blackouts had occurred on one or two previous occasions while he was driving, but that Mrs. Wamsley had no knowledge of such affliction.

Mr. Bishop, an investigating officer, testified that at the time and place of the collision, the road was very slick. Officer Bishop also stated that in his opinion appellant was intoxicated at the time of the accident.

Respondents, in their complaint, alleged that at the time of the collision Mrs. Wamsley was a passenger in a motor vehicle owned and operated by appellant and that the accident was the direct result of appellant's intoxication, his gross negligence in driving on the wrong side of the highway in the face of visibly oncoming traffic, and his failing to take even slight care to avoid the collision.

Appellant, in his answer, after denying the material allegations of the complaint, affirmatively pleaded that Mrs. Wamsley knew, or should have known, that appellant had imbibed intoxicating beverages immediately prior to the accident; that hence she assumed the risk of any injury in riding with appellant and such conduct was imputed to respondents; that she knew at the time of the accident appellant was sleepy or groggy and therefore she assumed the risk of any injury by riding with him, which conduct was imputed to respondents.

On voir dire examination appellant's counsel asked a prospective juror whether he would be prejudiced against a married man going out with a woman not his wife. The trial court sustained respondents' objection to the question, which ruling appellant assigns as error.

Appellant contends that such ruling unduly restricted the scope of his voir dire examinations-that because of the ruling he could not inquire into the juror's state of mind concerning the subject matter of the question. He points to evidence adduced at the trial which shows that he was a married man in company with a woman not his wife during the evening the accident occurred. He contends that such showing resulted in the jury being prejudiced against him, and that such prejudice contributed inter alia to the rather large amount of the verdict awarded in respondents' favor.

I.R.C.P. 47(a) provides that '(t)he court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision.' I.C. § 19-1905 states that '(t)rial juries for criminal actions are formed in the same manner as trial juries in civil actions.'

The basic rule on voir dire examination is set forth in the recent assault and battery case of State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). Although that was a criminal case and the one here is a civil case, I.C. § 19-1905 indicates that in this area no distinction is to be drawn on a criminal-civil basis. In that case, the trial judge sustained an objection to a question by counsel on voir dire examination as to whether a prospective juror entertained any bias or moral compunction about physical violence which would cause her to be prejudiced against one charged with aggravated battery. This Court in holding that such ruling did not constitute reversible error, stated:

'The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. §§ 19-2017 to 19-2022, or whether it is expedient to challenge them peremptorily, I.C. §§ 19-2015 and 19-2016. The scope of voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse. State v. Miller, 60 Idaho 79, 88 P.2d 526; State v. Hoagland, 39 Idaho 405, 228 P. 314. See especially, Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965) (a civil case).'

In State v. McKeehan, supra, counsel was permitted to ask jurors whether the mere charge of battery in itself would prejudice them against the accused. The McKeehan case thus is consistent with State v. Miller, supra, which held that the trial judge committed reversible error in sustaining an objection to a question regarding prejudice against the use of intoxicating liquors when the issue concerned driving while intoxicated. The rule emerges from those cases, that although interrogations on voir dire cannot require prospective jurors to take a particular view of evidence to be adduced at trial, the inquiries may ascertain whether the fact of the accusation of a particular offense elicits any prejudice on their part.

In the case at bar the question of prejudice against a man consorting with a woman other than his wife did not concern the legal question of alleged gross negligence in the operation of a motor vehicle, but concerned certain other evidentiary facts which might later be adduced at trial. It now appears that it was important, from appellant's standpoint to ascertain, if possible, any personal prejudice or animosity that any one or more of the prospective jurors might have in event the evidence would disclose that appellant had been consorting with a woman other than his wife on the night the accident occurred. The record, however, fails to disclose that the fact such evidence might be adduced was ever called to the trial judge's attention; this is not contained in the pleadings. If appellant felt this was sufficiently important to securing a wholly unprejudiced and fair-minded jury, he should in some manner have acquainted the trial judge with the reason why it was deemed important that this particular question be answered. Without a showing that the trial court was thus timely advised, the ruling was not reversible error.

This holding is in accord with those of other jurisdictions which have considered the effect of sustaining or overruling similar questions on voir dire. See 99 A.L.R.2d 7. In instances where the objections to questions concerning more or less immoral activities were sustained, the courts on review, have taken the view that jurors were being asked hypothetical questions which concerned facts which might be developed by the testimony at trial. See State v....