Naccarato v. Village of Priest River, 7413

• Decision Date: 23 June 1948
• Docket Number: 7413
• Citation: 195 P.2d 370,68 Idaho 368
• Parties: NACCARATO v. VILLAGE OF PRIEST RIVER
• Court: Idaho Supreme Court

195 P.2d 370

68 Idaho 368

NACCARATO v. VILLAGE OF PRIEST RIVER

No. 7413

Supreme Court of Idaho

June 23, 1948

Appeal from District Court, Eighth Judicial District, Bonner County E. V. Boughton, Judge.

Affirmed.

Bandelin & Bandelin, of Sandpoint, and W. F. McNaughton and H. S Sanderson, both of Coeur d'Alene, for appellant.

There is a fatal variance between allegations and proof when the adverse party is misled to his prejudice in maintaining his defense on the merits. I.C.A. 5-901; Davidson Grocery Co. v. Johnston, 24 Idaho 336, 133 P. 929, Ann.Cas.1915C, 1129; Gallwey v. Castelhun, 35 Cal.App. 589, 170 P. 657.

The court should exclude evidence not fairly covered by the complaint and within the issues raised by the pleadings. Kirk v. Culley, 202 Cal. 501, 510, 261 P. 994; Welch v. All Persons, 78 Mont. 370, 254 P. 179; Tomihiro v. United Hotel Corp., 147 Or. 202, 32 P.2d 765.

Everett E. Hunt and Raymond T. Greene, Jr., both of Sandpoint, for respondent.

The appellant was not misled to his prejudice in maintenance of the defense on the merits as a result of any alleged variance in the allegations and the proof. "That issues were framed from allegations of complaint, which were ambiguous, when compared with other allegations, and were contrary to proof, held not to require reversal in action for injuries, where evidence was clear and uncontradicted as to the manner in which the collision occurred." French v. Tebben, 53 Idaho 701, 27 P.2d 474.

Hyatt, Justice. Givens, C. J., and Budge, Holden, and Miller, JJ., concur.

OPINION

Hyatt, Justice.

Respondent sued for personal injuries sustained as the result of an automobile, in which he was riding as a passenger, striking a hole and ditch in the street of appellant Village and thereby colliding with a tree at the side of the street. The court, trying the case without a jury, made findings and entered judgment for plaintiff.

Plaintiff by his complaint alleged (Italics ours):

"* * * That at a point on said Highway No. 10 where First Street crosses said highway within the Village of Priest River, the said Village of Priest River, through its water system employees, dug a ditch extending completely across said highway; said ditch being approximately eight (8) inches in depth and approximately five (5) inches in width, for the purpose of draining a hole caused by the breaking of a water main owned and operated by the Village of Priest River, Idaho. That said hole was approximately two and one-half (2 1/2) feet wide and approximately eight (8) inches in depth.

"That the said Village of Priest River, Idaho through its water system employees negligently failed to place any warning signs, warning lights, or barricades at the scene of said hole and ditch. That the automobile in which this plaintiff was a passenger was proceeding in an easterly direction on said Highway No. 10 within the corporate limits of the Village of Priest River, Idaho, on the date heretofore set up at a speed of not to exceed twenty (20) miles per hour. That said automobile struck said hole and ditch with the result thereof causing said automobile to be thrown to the North across a ditch and into a tree * * *."

The evidence substanially showed, and the court found (Italics ours):

"* * * That at a point on said highway No. 10 where First Street crosses said highway within the Village of Priest River, the said Village of Priest River, through its water system employees, permitted a water main to remain broken for a period of more than three days, with the result that water from said main was permitted to flow over and across said highway, with the result that said water flowing created an icy condition upon said highway. That as said water attempted to flow across said highway it caused a natural ditch approximately eight (8) inches in depth and approximately five (5) inches in width upon said highway. That in addition thereto the water flowing from said broken main caused a hole approximately two and one-half feet (2 1/2') wide, and approximately eight (8) inches in depth to form in said highway.

"That the said Village of Priest River, Idaho through its water system employees negligently failed to place any warning signs, warning lights, or barricades at the scene of said hole and ditch. That the automobile in which this plaintiff was a passenger was proceeding in an easterly direction on said Highway No. 10 within the corporate limits of the Village of Priest River, Idaho, on the date heretofore set up at a speed of not to exceed twenty (20) miles per hour. That said automobile struck said hole and ditch with the result thereof causing said automobile to be thrown to the North across a ditch and into a tree * * *."

Appellant Village assigns as errors:

(1) The entry of Judgment for plaintiff;

(2) The overruling of its objection to the introduction of evidence that the ditch was formed by water flowing from a broken main;

(3) The making of the first paragraph of the finding above set forth;

(4) The failure to find plaintiff guilty of contributory negligence proximately causing his injuries.

As to assignments (2) and (3), appellant contends the allegation of the complaint that defendant dug a ditch across the highway was so fatally at variance from the proof and finding that the ditch was created by water flowing across the ice in the street, as not to permit the admission of such proof and the making of such finding.

Appellant objected to certain evidence that the water flowing from a broken main formed the hole in the street, the icy condition upon the highway, and the ditch therein, but only after several witnesses, called by plaintiff, had previously testified without objection to such broken water main, the flow of water, the resulting conditions and hazards created thereby, and substantially all the same matters subsequently objected to.

A party who fails to object to the admission of evidence waives an objection to the subsequent admission of the same or similar evidence. 64 C.J. 171; Denver & R. G. R. Co. v. Morrison, 3 Colo.App. 194, 32 P. 859; Stutsman v. Des Moines City R. Co., 180 Iowa 524, 163 N.W. 580; Cull v. McMillan Contracting Co., Mo.App., 178 S.W. 868.

Error, if any, in admitting irrelevant or improper testimony is harmless where the fact which is intended to be proved thereby is fully shown by other evidence which was introduced proviously or subsequently without objection. State v. Reding, 52 Idaho 260, 266, 13 P.2d 253, 255. See also Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, at page 505, 113 P.2d 406, holding a failure to object to evidence when introduced is a waiver of objection that it is inadmissible under the pleadings. Evidence introduced without objection stands as evidence in the case for all purposes. Angelus Securities Corp. v. Chester, 128 Cal.App. 437, 17 P.2d 1016; Hamlin v. University of Idaho, 61 Idaho 570, 574, 104 P.2d 625. And the same is sufficient to support a finding. Powers v. Board of Public Works, 216 Cal. 546, 15 P.2d 156.

A failure to object to the evidence waives an objection that there is a variance between the evidence and the pleadings. 64 C.J. 169; Boyce v. California Stage Co., 25 Cal. 460; Bowles v. Eisenmayer, Mo.App., 22 S.W.2d 884; Smith v. Long, 183 Okl. 441, 83 P.2d 167. And in Gaffny v. Michaels, 73 Cal.App. 151, 238 P. 746, at page 747, it was said: "* * * The failure of a party to object to evidence upon the ground of variance between it and the allegations of his adversary's pleading is a tacit admission that he is not misled by it to his prejudice in maintaining his action or defense on the merits. Indeed, his failure so to object affords the best possible evidence that the the variance has not misled him to his prejudice."

See also 49 C.J. 812.

Appellant by permitting the introduction of the evidence above referred to without objection, cannot on appeal take advantage of any variance between the pleading and proof, nor the finding based on the latter. See 49 C.J. page 826, Sec. 1225.

Further, in our opinion there is no actual variance between the pleading and the proof, since it is immaterial whether the ditch was created as a result of being dug by appellant's employees, or by their neglect in letting the water run and forming the same. See Newman v. Great Shoshone & Twin Falls Water Power Co., 28 Idaho 764, 156 P. 111, wherein plaintiff alleged that defendant negligently and carelessly permitted electrical current to pass through side of plaintiff's barn, thereby setting fire to hay therein, and proof showed electrically charged wires swayed and rubbed against sides of barn creating a short circuit and producing an arc or flame which ignited hay protruding through cracks in barn.

While what we have heretofore said disposes of appellant's assignments with reference to variance, we will nevertheless consider appellant's claims to the effect that it was misled to its prejudice in maintaining its defense, since, conceding a variance existed, defendant must nevertheless have been misled to its prejudice in maintaining its defense upon the merits.

Our statutes (I.C.A.) provide:

"5-901. Material variance defined. -- No variance between the allegation in a pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that the party has been so misled, the court may order the pleading to be amended upon such terms as may be just."

"5-902. Immaterial variance -- Amendment. -- Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without...