Messmer v. Ker

• Decision Date: 16 July 1974
• Docket Number: No. 11369,11369
• Citation: 96 Idaho 75,524 P.2d 536
• Parties: Leonard MESSMER and Joseph Hartke, Plaintiffs-Respondents and Cross-Appellants, v. Keith M. KER, Defendant-Appellant and Cross-Respondent.
• Court: Idaho Supreme Court

Page 536

524 P.2d 536

96 Idaho 75

Leonard MESSMER and Joseph Hartke, Plaintiffs-Respondents and Cross-Appellants, v. Keith M. KER, Defendant-Appellant and Cross-Respondent.

No. 11369.

Supreme Court of Idaho.

July 16, 1974.

St. Clair, St. Clair, Hiller & Benjamin, Idaho Falls, James L. Martsch, Furchner, Martsch & Baker, Blackfoot, for defendant-appellant and cross-respondent.

Terry L. Crapo, Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for plaintiffs-appellees and cross-appellants.

DONALDSON, Justice.

On August 2, 1968, a Mooney M-20F airplane piloted by Keith M. Ker, defendant-appellant and cross respondent, and owned by Max Ker and Son Lumber Company, crashed at the Bernard Airstrip in the Idaho primitive area near the Middle Fork of the Salmon River at about 7:40 a. m. Injured in the crash were passengers Leonard Messmer and Joseph Hartke, plaintiffs-respondents and cross-appellants. On June 8, 1970, Messmer and Hartke filed this action to recover for personal injuries sustained in the crash against the appellant Ker and Max Ker and Son Lumber Company. Upon motion for summary judgment, the district court dismissed the action as to Max Ker and Son Lumber Company. Messmer and Hartke then filed an amended complaint alleging that they were passengers for hire and not guests of Ker and that he operated the aircraft in a grossly careless and negligent manner which resulted in their receiving injuries. Messmer and Hartke further alleged that the accident was also caused by the consumption of intoxicating beverages by Ker within twelve (12) hours of the flight time and in such a manner as to have contributed to or to have caused the accident. In answer, Ker denied liability and set forth certain affirmative defenses. After a five day trial before a jury in December, 1972, the jury found against Messmer and Hartke. Judgment was entered accordingly.

Messmer and Hartke timely moved for judgment notwithstanding the verdict, or in the alternative for a new trial, presenting numerous grounds for the new trial. The trial court denied Messmer and Hartke's motion for judgment notwithstanding the verdict, but did grant a new trial based solely upon error in giving Instruction 20 which defined negligence. It is from this order that Ker has appealed. Messmer and Hartke have cross appealed from the trial court denying their motion for judgment notwithstanding the verdict, and a new trial on the other grounds set forth in Messmer and Hartke's motion.

We turn first to the negligence instruction and the new trial granted thereon. This Court will review such grants when the trial court expressly states the grounds relied upon; however, we will not disturb the wide discretion of the trial court to grant a new trial, absent a clear showing of manifest abuse or unwise exercise thereof. Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973). The instruction given to the jury is as follows:

'You are instructed that when I use the word 'negligence' in these instructions, I mean the failure to do something which a reasonably careful and prudent person would do under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful and prudent person would act under those circumstances. That is for you to decide.'

In granting the new trial, the trial court stated that the instruction as given did not include acts of commission as an element of negligence and the giving of such instruction was an error in law materially affecting the rights of the respondents.

Negligence under these facts would be best framed in the context of both omission and commission. See Restatement (Second) of Torts § 284 (1965); IDJI 210. ¹ However, Ker argues that such presentation is not necessary in that all of his alleged acts of negligence can be termed as omissions as well as commissions. While this may be true to an extent, such approach fails to set forth the necessary emphasis as required by the facts of this case. This is illustrated by one of the alleged negligent acts. As the airplane made a tight turn over the airstrip, it went into a stall. Rather than following the correct procedure of pushing the nose of the airplane downward, defendant Ker actually pulled the nose of the airplane up. This manuever accentuated the stall. As Ker urges, the manuever can be described as failing to take the proper recovery measures. However, that description could include both doing nothing and doing something drastically wrong. Under Ker's approach both situations would carry equal weight into the jury's deliberations, while the two necessarily demand different emphasis. Since juries depend solely upon the court for instructions as to law, these instructions must clearly and correctly present the legal theories upon which the parties have properly based their arguments. In this case the primary definition of negligence was defective. Subsequent references to negligence contained in instructions on other topics did not compensate for the initial error in definition. Even though the jurors received an admonition to consider the instructions as a whole, the trial court was within its discretion in ruling that the instruction error was substantial and prejudicial to the degree that required a new trial. Evans v. Small, 94 Idaho 448, 489 P.2d 1404 (1971); Banz v. Jordan Motor Co., 94 Idaho 369, 487 P.2d 1123 (1971).

Because of our holding affirming the order granting the new trial, we must also consider and decide further questions of law which may arise on the retrial of the case in the district court. I.C. § 1-205; Sulik v. Central Valley Farms, Inc., 95 Idaho 826, 521 P.2d 144 (1974); State v. Ash, 94 Idaho 542, 493 P.2d 701 (1971).

Messmer and Hartke challenge the constitutionality of Idaho Code § 21-212, commonly known as the airplane guest statute, alleging that the statute results in a denial of equal protection of the law. Constitutional issues may be considered for the first time on appeal if such consideration is necessary for subsequent proceedings in the case. I.C. § 1-205. See also I.R.C.P. 54(c). Moreover, since the issue is a question of law and all parties discussed the issue in briefs presented to this Court, a resolution of the issue will not be prejudicial.

The airplane guest statute is nearly identical in both form and substance to the automobile guest statute, I.C. § 49-1401. This Court recently found the automobile guest statute to be unconstitutional as violating the equal protection guarantees of both the Constitution of the United States and the Constitution of the State of Idaho. Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974). An analysis of the rejected justifications for the guest statute as set forth in Thompson, supra, indicates an even stronger case for declaring the airplane guest statute unconstitutional. A guest in an airplane is less able to terminate an airplane ride he finds objectionable. Moreover, the argument centering around ungrateful hitchhikers is far less applicable due simply to the decreased likelihood of aeronautical hitchhikers. Finally, as noted in Thompson, the primary benefits of the statute are enjoyed by insurance companies, not the insured party. Finding no justification for the statute, we therefore hold the airplane guest statute, I.C. § 21-212, to be unconstitutional. Lightenburger v. Gordon, 510 P.2d 865 (Nev. 1973). The instructions based on the guest statute should not have been given. Newman v. Coleman, 95 Idaho 80, 524 P.2d 541 (1974).

Also at issue is Instruction 30-A, the 'sudden emergency' instruction. Although the instruction is at times useful in cases involving complex and nearly instantaneous occurrences, usually the instruction is counterproductive. When considering jury instructions it must be remembered that often a jury is deluged with numerous instructions, many of which attempt to explain complex questions of law. We must balance the possible confusion created by layer upon layer of instruction ² and the necessity of providing the appropriate legal theories. (See above.) In all but the most intricate negligence cases, the general definition of negligence sufficiently outlines the required standard of care. As noted in the negligence instruction previously discussed, the jury is to judge the conduct of a reasonable man under...