Meinecke v. Intermountain Transp. Co.

• Decision Date: 28 January 1936
• Docket Number: 7414.
• Parties: MEINECKE v. INTERMOUNTAIN TRANSP. CO.
• Court: Montana Supreme Court

55 P.2d 680

101 Mont. 315

MEINECKE v. INTERMOUNTAIN TRANSP. CO.

No. 7414.

Supreme Court of Montana

January 28, 1936

Appeal from District Court, Deer Lodge County; R. E. McHugh, Judge.

Action by Lucille Meinecke, as administratrix of the estate of John H. Meinecke, deceased, against the Intermountain Transportation Company. From a judgment for plaintiff defendant appeals.

Affirmed on condition that plaintiff make remittitur.

J. B C. Knight, of Anaconda, and John K. Claxton, of Butte, for appellant.

William B. Frame and M. J. Doepker, both of Butte, for respondent.

ANDERSON Justice.

Plaintiff as administratrix of her deceased husband's estate, brought this action to recover damages sustained by her husband resulting from an automobile collision between the automobile in which the deceased was riding and another driven by one Torgerson, an officer of the defendant company. The deceased was injured while riding in a car along the highway leading from Butte to Anaconda in the nighttime. The car driven by Torgerson collided with the rear end of the car in which the deceased was riding while both cars were proceeding in the same direction, resulting in the injuries from which the husband of plaintiff died some 10 days after the collision. A trial of the case resulted in a verdict in favor of the plaintiff for the sum of $6,000, and judgment was entered in accordance therewith. A motion for new trial was made, heard, and denied. The appeal is from the judgment.

On the trial of the case, a witness who saw Torgerson some little time after the accident had happened, but before he had departed from the scene, after relating generally his knowledge and experience with reference to observing intoxicated persons, was questioned with reference to whether Torgerson was intoxicated. Objection was interposed on the ground that the question called for a conclusion and the proper foundation had not been laid. The objection was overruled, and the witness answered that Torgerson was intoxicated. This ruling is assigned as error.

It is generally held that witnesses may express their opinion on the question of intoxication without qualifying as experts on the subject, and that such opinions are not conclusions which the ordinary witness is not entitled to draw from his own observation. These matters are of common knowledge and observation. Commonwealth v. Barber, 261 Mass. 281, 158 N.E. 840; State v. Forsyth, 131 Wash. 611, 230 P. 821; Choice v. State, 31 Ga. 424, 467; Castner v. Sliker, 33 N.J.Law, 95; State v. Cather, 121 Iowa, 106, 96 N.W. 722; People v. Sehorn, 116 Cal. 503, 48 P. 495; Palmer v. Schurz, 22 S.D. 283, 117 N.W. 150. In the brief it is argued that no allegation of negligence based on intoxication is found in the complaint, and therefore the admission of this testimony was highly prejudicial. The objection was not sufficiently broad to reach the contention, but prior to the testimony of which complaint is made a number of witnesses who observed Torgerson on the same evening at the scene of the accident, had testified, without objection on the part of the defendant, no less than four times that they smelled liquor on his breath while engaging in conversation with him. It would appear that if evidence as to intoxication was so highly detrimental to the cause of the defendant, counsel are in no position to complain when they sat idly by and permitted various witnesses to testify on the subject without objection.

Error is assigned on the ruling of the court permitting inquiry on cross-examination of one of the witnesses for the defendant as to whether Torgerson, the driver of the car, was in a crippled condition before he received injuries in the accident. Objection was made that it was not proper cross-examination. The court agreed with the objection, but permitted the witness to answer. He said that he knew that Torgerson used "a cane when he walks." Obviously, the cross-examination was improper, and the court should have sustained the objection, but from the record it appears that Torgerson was present in court and testified during the trial of the cause. The witness merely said that he knew that Torgerson used a cane when he walked. If such is the fact, the jury, by using their senses, would observe the very thing to which the witness testified, and we are unable to see wherein the answer would in any way prejudice the rights of the defendant, as it only amounted to telling the jury what they would otherwise know.

During the cross-examination of one of the witnesses of the defendant, it appears that counsel for plaintiff was making inquiry with reference to the custom and practice of the defendant company in securing reports of accidents. The witness said of the report: "It is then brought into the Anaconda office and turned over to the insurance company." Counsel for the plaintiff then made the following inquiry: "Do you send these reports to the office of the insurance company in Butte then?" Objection was interposed, and the court said of the question which had elicited the first response: "As I understand your question, you asked what his instructions to his drivers were and he told you that the drivers reported to the insurance company?" That part of the record which relates to the turning of the report over to the insurance company is in narrative form. The objection was by the court sustained to the quoted question. It is urged that the injection of the question of insurance into the record was reversible error by appropriate specification. We have held that where the insurance company is not a party to the proceeding, ordinarily any attempt to convey to the jury the fact that a defendant is indemnified by insurance against loss arising from tortious liability, is error. Our decisions on that subject are reviewed and cited in the case of Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535, and what we there said need not be here repeated. We did in the case of Tanner v. Smith, 97 Mont. 229, 33 P.2d 547, recognize, within the circumstances of the case there under consideration and similar circumstances, that exceptions to the general rule existed and which were there applied.

It is apparent, in the light of the trial court's remark, that the subject of insurance was first injected into this case by the witness testifying voluntarily, and not in response to a question by counsel for the plaintiff. The further inquiry made by counsel, while improper, did not add anything to the statement of the witness. It is generally held in most jurisdictions, where similar views obtain to our own, that voluntary, unresponsive, and incidental answers disclosing that the defendant carried liability insurance come within an exception to the rule, and where the subject of liability insurance thus creeps into the record, a reversal is not warranted, especially where, as here, the damages are not asserted to be excessive. York Ice Machinery Corporation v. Sachs, 167 Md. 113, 173 A. 240; Smith v. Gould, 110 W.Va. 579, 159 S.E. 53, 92 A.L.R. 28; Stevens v. Lepley, 46 Ohio App. 445, 189 N.E. 260; Goodman v. Guida, 150 Misc. 677, 269 N.Y.S. 811; Kiser v. Suthard, 162 Va. 456, 174 S.E. 682; Webb v. Hoover-Guernsey Dairy Co., 138 Or. 24, 4 P.2d 631; Huls v. Dalzell, 252 Ky. 13, 66 S.W.2d 28; Cannon v. Scarborough, 223 Ala. 674, 137 So. 900; Hatchimonji v. Homes, 38 Ariz. 535, 3 P.2d 271; note, 95 A.L.R. 399. Accordingly, we hold that reversible error did not result.

It is contended by numerous specifications of error that the trial court was in error in denying defendant's motion for nonsuit and also its motion for a directed verdict, on the ground of the insufficiency of the evidence. It is argued in support of these contentions that the evidence fails to show that Torgerson, who was driving the car, was acting as an agent of the defendant company within the scope of his employment at the time of the collision.

Admittedly, Torgerson was the secretary of the defendant corporation, and the car which he was driving was licensed in the name of Torgerson Bros. and another corporation. The defendant company operated a bus depot in Butte, Mont., which was used by other bus companies. The witness O'Neil testified that he was a salesman and in Anaconda on the afternoon of November 14, 1933, the evening preceding the injury, and that in leaving Anaconda on his return to Butte he left from the "big garage" on Main street which is owned and operated by Torgerson Bros. He said he was there awaiting the return of another salesman with whom he returned to Butte. Of that occasion he said:

"I remember seeing Mr. Torgerson, who is sitting there beside his counsel, with two other gentlemen. I do not know who these other two gentlemen were, and if they were in court I would not know them.

Q. What, if anything, called this scene of Mr. Torgerson to your mind at this time, Mr. O' Neil? A. Well, at the time I was waiting there I was to meet this gentleman to ride back with him. He told me to meet him at this garage between five and six o'clock. I was down there waiting around for him to come back, and these three gentlemen came into the garage there, and it seemed like two of the gentlemen had missed the bus, and Mr. Torgerson here said that he was going to Butte. And it seemed that these gentlemen didn't want to put him out to go over there, but he said in his conversation that he had business to take care of in Butte--that he had papers and business to take care of in the bus depot in Butte anyway, and he was going over."

Mrs Ethel Godbout testified that on the same evening she went to the bus depot of the defendant in Butte after 6 o'clock and saw Mr. Torgerson there. She said of him at that time: "He was behind the desk and he apparently was looking...