Neff v. Hysen

• Decision Date: 08 May 1952
• Docket Number: No. 7845,7845
• Citation: 72 Idaho 470,244 P.2d 146
• Parties: NEFF v. HYSEN et al.
• Court: Idaho Supreme Court

Page 146

244 P.2d 146

72 Idaho 470

NEFF v. HYSEN et al.

No. 7845.

Supreme Court of Idaho.

May 8, 1952.

Anderson & Anderson and John L. Long, Pocatello, for appellant.

Merrill & Merrill and Darwin D. Brown, Pocatello, for respondents.

PORTER, Justice.

This is an action in damages under the death statutes by appellant, as mother and sole heir at law of John Paul Sorgatz, for his alleged wrongful death in an automobile accident. The accident occurred December 7, 1950, at a point on the main highway about one mile south of the city limits of Pocatello. Upon the trial of the cause the jury returned a verdict in favor of defendants and judgment was entered thereon. From such judgment appellant appeals to this court. Counsel for appellant in this appeal were not of counsel in the trial court.

On October 23, 1929, appellant was the wife of Paul J. Sorgatz, since deceased. She had recently given birth to a still-born child. On such date, her Doctor, one J. R. Young, now deceased, brought her a baby boy about three hours old, gave the child to her and said, 'This is your baby.' The Doctor told her that the mother had given him the baby boy to place in a good home so that he would have a good mother and father the rest of his life. Upon inquiry by appellant as to how she could make the baby hers, the Doctor said for her to leave that to him and he would fix it. He thereupon issued and registered a birth certificate giving the name of the child as John Paul Sorgatz, the name of the father as Paul J. Sorgatz and naming appellant as mother. A copy of this birth certificate was delivered to appellant. The names of the real mother and father of the child were not disclosed to appellant.

Thereafter, John Paul Sorgatz was raised and cared for by appellant and the relation between them at all times corresponded to that of mother and son. Appellant made some inquiry, according to her testimony, of two attorneys, one of whom was Mr. A. L. Merrill, relative to the adoption of John Paul Sorgatz and was advised that it was unnecessary and that the birth certificate was sufficient. No formal statutory adoption proceedings were ever had. The deceased joined the U. S. Navy about two and one-half years before the accident. At the time of his death he was twenty-one years of age.

At the time of the accident the deceased was home on leave from the Navy. On that day after lunch, he borrowed the 1947 Buick automobile belonging to the husband of appellant and, with Arthur Wilson, a boy friend, went for a ride. They drove around Pocatello and finally went to the Sacajawea Inn, situated roughly one and one-half miles south of the city limits of Pocatello and on the west side of the main highway. At the Inn they each drank one bottle of beer. About 3 o'clock p. m. they started to return to Pocatello. Deceased was driving and Arthur Wilson was in the seat on the right of the driver.

In the meantime, respondent Hysen had been called on an errand to Parker's Auto Service located about one mile south of Pocatello on the east side of the main highway. He was driving a Chevrolet automobile. When he approached the service station going south, he started to make a left-hand turn into the station. He testified he switched on his blinker lights for a left turn and turned his car to the left to approximately the yellow line in the center of the highway when he practically stopped his car and looked back to see if any car was attempting to pass; and that as he turned to look to the front his car was struck by the automobile driven by deceased.

The witness, Beryl D. Yelton, testified that immediately prior to the accident he was driving a pick-up truck in a northerly direction at a speed of approximately 60 miles per hour. That at a point about 300 feet from the place of the accident, the Buick car passed his truck going at a speed of approximately 75 miles per hour. That he saw the Chevrolet automobile parked in the highway and put on his brakes in order to give the Buick car more room in which to pass the truck and avoid hitting the parked Chevrolet as it looked as if it was going to be pretty close.

Apparently, the left front wheel of the Buick car struck near the left front wheel of the Chevrolet car. The Buick turned over several times and came to rest 226 feet from the point of impact. The evidence indicates that the left front wheel of the Chevrolet car, in its left turn, had passed some three or four feet over the yellow line in the center of the highway at the time it was struck. Prior to the impact, the driver did not put on the brakes, slacken the speed or swerve the Buick car. John Paul Sorgatz was fatally injured in the accident and died on December 9, 1950.

At the place of the accident the main highway is 24 feet wide with a yellow line down the center. In front of the Parker Auto Service there is an additional four feet of pavement along the east side of the highway and some twenty feet of gravel. At the time and place of the accident the highway was dry, level and straight and the weather was clear and the view unobstructed.

Appellant makes seven assignments of error. Appellant first urges the court erred in submitting the question of contributory negligence to the jury for the reason that there was no evidence to indicate that deceased was guilty of any contributory negligence whatever. Consideration of this case shows there was ample evidence from which the jury might conclude there was contributory negligence on the part of the deceased. Contributory negligence was made an issue by the answer. The question of contributory negligence was a question of fact which the court properly submitted to the jury. Valles v. Union Pac. R. Co., Idaho, 238 P.2d 1154; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Ford v. Connell, 69 Idaho 183, 204 P.2d 1019; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600.

Appellant complains that 'the court erred in refusing to give plaintiff's Requested Instruction No. 8 concerning the presumption that a man uses due care and is free from contributory negligence in the absence of evidence to the contrary.' Instructions on the presumption of due care have been considered and discussed by this court in a number of cases. In the late case of Koch v. Elkins, 71 Idaho 50, at 55-56, 225 P.2d 457, at 460-461, we said:

'The general rule in some jurisdictions is that where the injured party is killed, or so incapacitated that he cannot testify, and there are no eyewitnesses to the accident, the plaintiff may rely upon the presumption that the injured person was exercising due care for his own safety. Conversely, where it is feasible to present the facts to the jury, the question of contributory negligence should be determined by the evidence, not by presumption. * * *

'Some jurisdictions permit a resort to the presumption in cases where conflicting evidence, or the evidence opposed to the presumption, leaves the issue of contributory negligence in doubt. * * * This rule was applied by this court in Webb v. Gem State Oil Co., 56 Idaho 465, 55 P.2d 1302; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Dept. of Finance v. Union Pac. R. R. Co., 61 Idaho 484, 104 P.2d 1110; and in Brown v. Graham, 62 Idaho 388, 112 P.2d 485; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566; Hooton v. City of Burley, Idaho , 219 P.2d 651. * * *

'* * * When the evidence or lack of evidence leaves the issue of negligence or contributory negligence in doubt or in equipoise, the law requires a decision against the party having the burden of proof, just as under like circumstances it requires a decision against him when he is confronted with a presumption of due care in favor of his opponent. So, under our statute making contributory negligence a matter of defense and casting the burden of proof upon the defendant, there is no necessity for reemphasizing the point by instructing as to the presumption, at least in any case where the plaintiff is alive and capable of presenting his side of the case to the jury.'

In the instant case appellant produced the testimony of the witness, Arthur Wilson, who was riding in the Buick automobile at the time of the accident. In addition to the testimony of the witness Yelton, hereinbefore mentioned, respondent produced three disinterested witnesses who were in Parker's Auto Service station about 100 feet from the scene of the accident and who testified as to the facts and circumstances surrounding the accident. The actions of deceased immediately prior to and at the time of the accident and the facts and circumstances surrounding the accident appear to be fully covered by the testimony of disinterested witnesses. There is no substantial conflict in such testimony. Under these circumstances we conclude that the action of the trial court in refusing to give the requested instruction on the presumption of due care was not prejudicial error requiring the reversal of the judgment in this case. Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Koch v. Elkins, supra.

Appellant complains that the court erred in permitting, over the objection of appellant, the witness, State Patrolman Contino on cross examination to testify as to a test of speed that he conducted. The witness was asked the following question:

'Q. All right. Let me reframe my question: Now then, for the defendant's car to have struck the Chevrolet car, pushed it back the distance you said it did push it back,...