Nottingham v. McCormick
| Decision Date | 02 February 1973 |
| Docket Number | No. 10717,10717 |
| Citation | 505 P.2d 1260,95 Idaho 188 |
| Parties | Mary Jacquelynne NOTTINGHAM, surviving widow, in her own behalf and Guardian ad Litem for and on behalf of Thomas Michael Nottingham, et al., Plaintiff-Respondent, v. Dr. James E. McCORMICK and Jane Doe McCormick, husband and wife, Defendants-Appellants, Kenneth Summers et al., Defendants. |
| Court | Idaho Supreme Court |
Michael E. McNichols, Orofino, for appellants.
Nixon & Nixon, Bonners Ferry, Brian Kennedy, John G. Layman, Spokane, Wash., for respondent.
Plaintiff-respondent Mary Jacquelynne Nottingham instituted this action on her own behalf and on behalf of her minor children to recover damages for the death of her husband, George Eugene Nottingham. In her amended complaint she named as defendants Dr. James E. McCormick and his wife, the appellants herein. She also named as defendants Mr. and Mrs. Kenneth Summers and Carolyn McCormick Hollenberg, who is the daughter of Dr. and Mrs. McCormick.
In her second amended complaint, respondent, Mrs. Nottingham alleged that on the night of August 22, 1967, her husband was driving a 1962 Corvair panel motor vehicle along U. S. Highway No. 12; that a horse owned by Carolyn McCormick Hollenberg and under the control of Dr. and Mrs. McCormick came across the highway in front of the path of the vehicle driven by Mr. Nottingham; as a result of the vehicle striking the horse, Mr. Nottingham sustained fatal injuries and died on August 24, 1967. Respondent also alleged that the accident occurred within the boundaries of a herd district, and that the McCormicks were negligent in allowing the horse to be at large at the time and place of the accident. She also alleged negligence on the part of Carolyn McCormick Hollenberg in allowing her mare to roam at large in the herd district, and further alleged that the Summers had enclosed a horse belonging to Carolyn McCormick Hollenberg, but that the Summers negligently released the horse to roam. Respondent also alleged that the defendants breached a duty to the respondent in these regards, and that the respondent suffered special and general damages as a result of the negligence.
In appellants' answer to respondent's second amended complaint, appellants admitted ownership of a mare by their daughter, but they generally denied all other allegations of the second amended complaint, and interposed some affirmative defenses not involved in this appeal. By their answer, the appellants presented the factual issue of whether the mare owned by their daughter was the horse involved in the accident.
The case was tried before a jury. During the course of the trial, the evidence failed to establish any claim against the Summers and on their motion they were dismissed from the case. The trial continued against the McCormicks and their daughter, Carolyn McCormick Hollenberg. The jury returned its verdict in favor of respondent and against Dr. and Mrs. McCormick in the sum of $61,819.53. The jury, however, in its verdict, exonerated Carolyn McCormick Hollenberg, the owner of the horse, from any liability. Judgment was entered against Dr. and Mrs. McCormick, and they appealed from that judgment and from the order of the trial court denying their timely motion for new trial. The issues on this appeal involve only the claim of respondent, Mrs. Nottingham, against the appellants, Dr. and Mrs. McCormick.
Respondent's theory of the case was that the accident occurred within the boundary of a herd district, and that the owner of the horse or the person in control of the horse was liable for the damages caused by the accident, unless it could be established that the animal was lawfully on the highway at the time of the accident. See, Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965); Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966).
On August 22, 1967, Mr. Nottingham was returning from a business trip, driving a Corvair panel vehicle. Mr. Nottingham was driving westerly along U. S. Highway 12, towards Lewiston. At about 10:15 p. m., at a point about 2.3 miles east of Lenore, Idaho, the panel vehicle struck and killed a horse. The accident occurred within the boundaries of a herd districk created pursuant to I.C. § 25-2401. Mr. Nottingham sustained head injuries in the accident, and remained unconscious until his death on August 24, 1967.
No eye witnesses to this accident were presented at the trial. However, just shortly after the accident other travellers along the highway came upon the scene and LaVaughn Frost, a state patrolman, following receipt of information of the accident, drove there within a matter of only a few minutes. However, none of the witnesses called by respondent established by direct evidence the ownership of the horse which was killed in the accident. Although the decisive factual issue in this case at trial was whether the McCormicks were the owners of or the persons in control of the horse which was involved in the fatal accident, none of the witnesses called by respondent established the ownership of the horse. It thus became necessary for plaintiff-respondent to establish the ownership of the horse, and parties who had control of the horse, by circumstantial evidence.
At trial the plaintiff-respondent first called the deputy auditor of Nez Perce County to establish the boundaries of the herd district. This witness identified the minutes of the board of county commissioners establishing the district. Respondent's next witness, Dr. Heusinkveld, was the physician who attended Mr. Nottingham, and he testified as to the nature of Mr. Nottingham's fatal injuries. At this stage of the trial, then, there had been established the existence of a herd district, and the fact that Mr. Nottingham had died, and the nature of the injuries which occasioned his death. However, there was no evidence of an accident, its cause or location. The respondent then called Dr. McCormick as an adverse party for cross examination under the statute, I.C. § 9-1206. During his examination by respondent, it was established that: Dr. McCormick was a chiropractor; he and his wife lived on his 100 acre ranch about three miles east of Lenore, south of the Clearwater river and adjacent to U. S. Highway No. 12. Adjacent to his property on his western boundary was a two hundred acre ranch owned by the Etters. It was further established that there was no fence between his ranch and the Etters' ranch and that Dr. McCormick kept horses on this property, and that there were seven or eight horses on the two ranches, four of which were owned by the McCormicks. He also cared for horses belonging to his daughters. One of these horses was owned by his daughter, Carolyn, a defendant herein. Dr. McCormick was then asked:
counsel then objected to the question, stating:
Following this, the trial court indicated it believed the objection was well taken, but it then excused the jury and counsel entered into a colloquy concerning the objection. The trial court then sustained the objection, and respondent withdrew Dr. McCormick from the stand.
After Dr. McCormick was dismissed from the stand, respondent called Mrs. Edith Marie McCormick, Dr. McCormick's wife, for examination under the statute, I.C. § 9-1206. She testified that on August 23, 1967, while she was at home, someone came and inquired if they (the McCormicks) had a horse killed. In response to the inquiry she drove her car down the highway around 10:30 in the morning and found a horse on the highway about a mile and a half from their place. Mrs. McCormick was then asked:
'Q. And you recognized the horse as being a buckskin mare belonging to you?
Appellants' counsel, Mr. McNichols, then objected:
'If the Court please, now I am going to object to this question. May I ask one question in aid of an objection, Your Honor?
The Court: Well, no this is cross examination under the statute so I can't permit you--
Mr. McNichols: May I specify my objection then?
The Court: Yes, your objection is overruled.
Mr. Layman: (respondent's counsel) I am sorry. I got lost there, Your Honor.
The Court: Well, he made an objection, but of course, you can lead the witness on cross examination under the statute.' (Emphasis supplied.)
Examination of the witness by respondent's counsel continued:
'Q. Did you recognize that horse there as your horse?
A. It was what I presumed to be our horse, yes.
Q. All right. Now you presumed it to be a horse that had been missing from your place?
A. The same as anybody else would do, that if you were-took a quick look I presumed it was our horse, yes, the one...
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Mac Tools, Inc. v. Griffin
...that the trial court has broad discretion over the conduct of the trial, including the order of witnesses. Nottingham v. McCormick, 95 Idaho 188, 192, 505 P.2d 1260, 1264 (1973); State ex rel. Symms v. Collier, 93 Idaho 19, 21, 454 P.2d 56, 58 (1969). Mac claims that the prejudice caused to......
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State v. Johnson
...the trial court. I.R.E. 611(a); Mac Tools, Inc. v. Griffin, 126 Idaho 193, 200, 879 P.2d 1126, 1133 (1994); Nottingham v. McCormick, 95 Idaho 188, 192, 505 P.2d 1260, 1264 (1973). Unless the record shows an abuse of discretion accompanied by prejudice to the defendant, we will not reverse t......
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...bags were not conditionally admitted, subject to being connected up later by other competent evidence. See Nottingham v. McCormick, 95 Idaho 188, 192, 505 P.2d 1260, 1264 (1973). Therefore, the bags of unidentified white powder were not relevant to the question of Seitter's possession of th......