Morford v. Brown

• Decision Date: 18 April 1963
• Docket Number: No. 9100,9100
• Citation: 381 P.2d 45,85 Idaho 480
• Parties: Phillip A. MORFORD, Plaintiff-Appellant, v. Selma BROWN, Joan N. Brown, Roger Smith and Thelma Smith, husband and wife, and Darlene Gorostiza, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 45

381 P.2d 45

85 Idaho 480

Phillip A. MORFORD, Plaintiff-Appellant, v. Selma BROWN, Joan N. Brown, Roger Smith and Thelma Smith, husband and wife, and Darlene Gorostiza, Defendants-Respondents.

No. 9100.

Supreme Court of Idaho.

April 18, 1963.

R. M. Whittier, Isaac McDougall, Pocatello, for appellant.

Elam & Burke, Boise, for respondents Selma Brown and John N. Brown.

Richards, Haga & Eberle, Boise, for respondents Roger Smith and Thelma Smith, and Darlene Gorostiza.

SMITH, Justice.

This is a tort action whereby appellant seeks damage on account of his personal injuries sustained in an automobile collision. Appellant, in his complaint, alleged respondents' joint, concurrent and consecutive acts of negligence, as causative of the collision, injuries and damage.

Respondents Selma Brown, and Joan N. Brown (sometimes in the record referred to as Sloper), in their amended answer, denied the allegations of negligence and alleged the affirmative defenses of appellant's contributory negligence, and unavoidability of the accident. While the trial court's pretrial order is not included in the transcript of the record, argument of both counsel for appellant and counsel for Selma Brown and Joan N. Brown show that the trial court permitted an amendment to the Brown answer to the effect that Selma Brown set up the affirmative defense of sudden emergency; whereas Browns' counsel contends that a typographical error occurred 'in naming Selma Brown instead of Joan N. Brown,' and the trial proceeded upon the theory, among others, of Joan N. Brown having been confronted by a sudden emergency.

Respondents Roger Smith and Thelma Smith, husband and wife, and Darlene Gorostiza denied the allegations of negligence on their part as causative of the automobile accident, and appellant's injury and damage, and alleged the affirmative defense of appellant's contributory negligence.

The jury found no negligence on the part of either appellant or respondents, and denied recovery to appellant. Appellant has appealed from the judgment in favor of respondents, and from an order denying a new trial.

The collision occurred about 8:00 o'clock p. m., the evening of November 12, 1960, west of, and adjacent to the city limits of Boise, Idaho, on Fairview Bridge, on U. S. Highway 30,--a four lane highway,--which, at this point, extends in an easterly-westerly direction. The roadbed was wet from rain which had been falling for some time prior to the occurrence of the accident.

The four lanes of this highway are situate, two lanes on either side of a double white line which separates eastbound from westbound traffic. The two traffic lanes, bordering either side of the center double line, are referred to as the inside lanes, one eastbound and the other westbound; the remaining two traffic lanes are referred to as the outside lanes, likewise one eastbound and one westbound.

Appellant is an officer of the Idaho State Police. At the time and place of the collision he was driving a state police vehicle. Respondent Joan N. Brown, at the time and place, was driving an automobile owned by her mother, respondent Selma Brown. The evidence is in dispute as to whether respondent Darline Gorostiza, at such time and place, was driving an automobile which was owned by respondents Roger Smith and Thelma Smith, husband and wife.

Appellant at the time of the accident was driving the state police automobile westerly on the inside traffic lane on Fairview Bridge. Respondent Joan N. Brown, at that time, was driving easterly on the inside traffic lane on the bridge. At that time an automobile was traveling easterly on the outside eastbound traffic lane a short distance ahead of Joan N. Brown. Darlene Gorostiza, allegedly driving a vehicle easterly on the outside eastbound traffic lane, suddenly and without any turn signal by the driver, entered the inside easterly lane, in front of the automobile driven by Joan N. Brown. Appellant contends that Joan N. Brown then negligently drove her vehicle northeasterly across the double white center line of the highway into the westerly path of appellant's oncoming automobile which resulted in the collision, causative of appellant's injuries. No other vehicle was involved in the collision.

The evidence is conflicting as to whether it was the automobile driven by Darlene Gorostiza which traveled from the eastbound outside traffic lane into the eastbound inside lane, in front of the automobile driven by Joan N. Brown.

The record shows that a car had stalled in the eastbound outside traffic lane, some distance easterly from the place of the collision.

At the close of the evidence, the trial court submitted the case to the jury upon special interrogatories, which, together with the answers thereto, are as follows:

'We, the jury in the above entitled action, find in the above entitled action in answer to questions submitted to us by the Court, herewith present our findings, being our conclusions of fact from the evidence, respectively as to the issues presented to us by said questions.

'Question 1(a). Was the defendant Joan N. [Brown] Sloper negligent? No.

'(b). If you answered 1(a) 'Yes', was that negligence a proximate cause of the accident, and any injury to plaintiff? No.

'Questions 2(a). Was the defendant Darlene Gorostiza negligent? No.

'(b) If you answered 2(a) 'Yes', was that negligence a proximate cause of the accident and any injury to plaintiff? No.

'Question 3. Was defendant Darlene Gorostiza the agent of defendants Roger Smith and Thelma Smith at the time of the accident in question? Yes

'Question 4(a) Was the plaintiff Phillip A. Morford negligent? No.

'(b) If you answer 4(a) 'yes', was that negligence a proximate cause of the accident and any injury to plaintiff? No.

'Question 5. If you answered questions 4(a) or (b) in the negative, and you answered either question 1 or 2, or both of them, in the affirmative as to both subsections thereof, then you will state the amount of damages suffered by the plaintiff resulting from the injury referred to in questions 1 and 2, in which sum you will include all of the elements of damage which are shown by the evidence, proximately resulting from such injury and which may be considered by you under the Court's instructions. $ None'

Appellant assigns error of the trial court in instructing the jury as regards contributory negligence on appellant's part, contending that the evidence is insufficient to show that he was contributorily negligent. Such assignment is without merit inasmuch as the jury found, in answer to a special interrogatory, that appellant was not negligent. Any error in the proceedings which does not affect the substantial rights of the parties cannot be made the basis of reversal. I.R.C.P., Rule 61; Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616, Anno. 107 A.L.R. 487; Boise Street Car Co. v. Van Avery, 61 Idaho 502, 103 P.2d 1107; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112.

Appellant contends that the trial court erred in instructing the jury upon 'the doctrine of sudden emergency or unavoidable accident' for the reasons: (1) such doctrines were inapplicable because there was no proof submitted that the sudden emergency or unavoidable accident was not of Joan N. Brown's own making and that she was free from any wrongdoing in creating this emergency; (2) the doctrines of unavoidable accident and sudden emergency were not raised by the pleading, nor was there proof supporting the instructions; (3) nowhere in the record does it appear that the court instructed that, in order to apply either the sudden emergency doctrine or the unavoidable accident doctrine, the jury had first to find that the sudden emergency and unavoidable accident was not of Joan N. Brown's own making and that she was free from any wrongdoing in creating this emergency; (4) the trial court erred in permitting respondent Selma Brown to amend her answer setting up the affirmative defense of sudden emergency since there was no allegation or proof that she was the driver of any vehicle.

Appellant contends that the affirmative defense of sudden emergency permitted on behalf of Selma Brown at the pretrial conference 'caused confusion in the minds of the jury as to the proper application of the doctrine of sudden emergency.' Appellant urges lack of adequate bases for such defense, both as to the pleadings inasmuch as Selma Brown was not driving the car at the time of the accident, hence the doctrine could not apply to her; and as to the evidence, urging that it is insufficient to support jury instructions relating to such doctrine.

Whether a typographical error occurred, as Browns' counsel contends, in naming Selma Brown, in whose behalf such affirmative defense was permitted, instead of Joan N. Brown, we deem to be immaterial, inasmuch as the trial proceeded upon theories which included that of sudden emergency as a defense. There was neither allegation nor proof that Selma Brown was the driver of the Brown vehicle at the time of the collision. Admittedly Selma was the owner of the car and her daughter, Joan, was its driver at the scene of the accident, and the trial court so instructed the jury; and instructed additionally, that Selma, as owner, is liable to plaintiff (appellant) if Joan is liable to him. Under such circumstances we cannot assume that the jury was confused because of the permitted amendment of the Brown answer.

I.R.C.P. Rule 15(b) in part provides: 'When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.' Fed.R.Civ.P. 15(b) is identical.

We now approach the issue of sudden emergency. Appellant, by his own witness, one Hannaman, developed the initial evientiary aspects of sudden emergency. Mr. Hannaman testified that the weather was rainy the evening of November 12, 1960; that at the...