Olesen v. Snyder

• Decision Date: 19 April 1979
• Docket Number: No. 12436,12436
• Parties: Edith OLESEN, Special Administratrix of the Estate of Barbara Olesen, Deceased, Plaintiff and Appellant, v. Robert Harold SNYDER and Gene Raymond Terland, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 729

277 N.W.2d 729

9 A.L.R.4th 1133

Edith OLESEN, Special Administratrix of the Estate of Barbara Olesen, Deceased, Plaintiff and Appellant, v. Robert Harold SNYDER and Gene Raymond Terland, Defendants and Respondents.

No. 12436.

Supreme Court of South Dakota.

Argued Feb. 23, 1979.

Decided April 19, 1979.

Charles Poches, Jr., Fort Pierre, for plaintiff and appellant.

E. D. Mayer of Riter, Mayer, Hofer & Riter, Pierre, for defendants and respondents.

DUNN, Justice.

This is a wrongful death action brought by the mother of decedent Barbara Olesen as special administratrix of her estate. Plaintiff appeals from the judgment of the trial court dismissing the complaint on a jury verdict in favor of defendants Snyder and Terland. We affirm.

On December 20, 1972, the decedent and Gary Myers accompanied Robert Bennett on an automobile trip from Chamberlain to Mitchell. Shortly after midnight, they endeavored to return to Chamberlain on Interstate 90. While enroute, the automobile, which was driven by Bennett, crossed from the right lane to the left lane, struck a guardrail, and came to a stop in the left lane of westbound traffic on an overpass bridge. Bennett, Myers, and the decedent got out of the automobile and viewed the damage. The automobile could not be moved from its position on the highway because the left rear wheel was broken and the fan was through the radiator. It was suspected that Bennett had injured his collarbone, and he traveled into Chamberlain with a truck driver who had stopped to render assistance. Myers and the decedent stayed behind to watch the automobile and returned to it because of the cold temperature outside.

Subsequently, another truck driver approached the automobile from the east, noticed persons in the automobile as he passed by it, and stopped on the right shoulder of the highway slightly ahead of the automobile. As the truck driver was about to alight and render assistance, Snyder, driving the Terland automobile in which Terland was asleep, approached the scene from the rear as he was traveling west in the right lane. Snyder saw the lights of the truck parked along the right side of the highway and moved the automobile into the left lane to go safely around the truck. As the automobile entered into the left lane, it struck the Bennett automobile. Myers survived this collision, but the decedent was found dead in the Bennett automobile.

The wrongful death action was originally filed in United States District Court in December 1973, but was remanded to the Fourth Judicial Circuit Court on January 30, 1974, because of lack of diversity of citizenship. Plaintiff named Bennett, Snyder, and Terland as defendants and stated that "as a direct and proximate result of the negligence of the defendants, Barbara Olesen was killed." Bennett moved for summary judgment on the grounds that the decedent was a guest in his automobile and that as a matter of law plaintiff could not recover because of the guest statute, SDCL 32-34-1. ¹ On August 7, 1975, the circuit court granted summary judgment for Bennett dismissing Bennett from plaintiff's complaint and from the cross claims of Snyder and Terland for indemnity and contribution. Snyder and Terland appealed the grant of summary judgment, and we affirmed the circuit court on December 31, 1976. Olesen v. Snyder, 1976, S.D., 249 N.W.2d 266.

The remaining matter regarding the negligence of Snyder and Terland was set for jury trial on August 17, 1977. Shortly before the trial was to commence, plaintiff discharged counsel and retained new counsel. On August 17, 1977, new counsel asked the court for a continuance to adequately prepare for trial. Due to the fact that a jury was called and excused, that the defendants had travelled from Oregon and Idaho to be present at the trial, and that the defendants' counsel had prepared and was ready to try the matter, the circuit court granted the continuance and assessed terms of $1,000 against plaintiff. Plaintiff was given the option of paying the full amount prior to trial or posting sufficient security to guarantee payment. If the terms were not satisfied in one of the prescribed ways, the circuit court stated that the motion of defendants to dismiss the complaint with prejudice for lack of prosecution would be granted. Plaintiff subsequently paid the terms assessed.

On November 25, 1977, plaintiff made a motion asking the circuit court to admonish the defendants and witnesses from making claims or statements or offering evidence concerning the negligence of Bennett who had been dismissed from the action; to instruct the jury that Bennett had been held by the court as a matter of law to not be liable and it was not to consider the negligence or wrong of Bennett in this case; to dismiss defendants' answer alleging contributory negligence; and to refuse admission of depositions of defendants' medical experts as to the cause of death because such opinions were not based upon reasonable medical certainty. The circuit court denied all of the plaintiff's motion. The matter proceeded to trial by jury for three days commencing on November 30, 1977. The circuit court denied the parties' motions for directed verdict, and the case was submitted to the jury. The jury returned a verdict for defendants, and judgment was entered on December 6, 1977, dismissing the action. Plaintiff's motions for new trial and judgment notwithstanding the verdict were denied on January 10, 1978.

The first issue raised by plaintiff on appeal is the contention that the circuit court erred in assessing terms against plaintiff to be paid to the defendants as a condition of granting a continuance of trial. The circuit court has the power to grant continuances upon a showing of good cause. SDCL 15-11-4. The mere fact that an attorney is discharged from a case does not give the absolute right to a continuance, and the engagement of new counsel just prior to trial is not necessarily a ground for continuance, particularly if the moving party is not free from fault in the matter. 17 C.J.S. Continuances § 23, p. 394; Annot. 48 A.L.R.2d 1155. The granting or refusal of a continuance rests within the sound discretion of the circuit court, and its rulings on motions for continuance will not be reversed on appeal in the absence of an abuse of discretion. SDCL 15-11-4; Farmers and Merchants State Bank v. Mann, 1973, 87 S.D. 90, 203 N.W.2d 173; Hyde v. Hyde, 1959, 78 S.D. 176, 99 N.W.2d 788; 17 C.J.S. Continuances § 5, p. 375; 17 Am.Jur.2d, Continuance, § 3, p. 120; Annot. 67 A.L.R.2d, § 3, p. 500. Further, every continuance that the circuit court grants "shall be upon such terms as the court may impose." SDCL 15-11-10. See also, 17 C.J.S. Continuances § 104, p. 486; 17 Am.Jur.2d, Continuance, § 50, p. 179.

In the case before us, the circuit court granted the continuance requested by plaintiff and assessed terms of $1,000 against plaintiff as a condition of granting the continuance. Plaintiff argues that the circuit court exceeded its jurisdiction in that the only costs allowable are those taxable costs listed in SDCL 15-17-2(5). We disagree. Costs are defined as sums by way of indemnity for expenses in an action. SDCL 15-17-1. With regard to items and amounts allowed as costs, SDCL 15-17-2 states that "except as otherwise provided in special cases," costs allowed in civil actions are as listed in the statute. We have a statute which "otherwise provides" for costs occasioned by postponement of trial as follows:

"When an application is made to a court or referee to postpone a trial the payment of costs occasioned by the postponement may be imposed in the discretion of the court or referee as a condition of granting the same." SDCL 15-17-25. ²

Actual expenses of the defendants for their round trip fares from Idaho and Oregon, motel expenses, meals and loss of pay from their jobs totaled $730. In addition to this, there was the expense of Mr. Mayer in preparing for trial, his time and his expense in going to Chamberlain to be ready for trial.

The circuit court viewed the facts and circumstances involved as discussed above and weighed the inconvenience and expense resulting to defendants from a delay against the disadvantage to plaintiff from requiring counsel to present his case. Upon completion of this analysis, the circuit court imposed the payment of $1,000 as a condition of granting the continuance in an effort to compensate defendants for the amount of expenses "occasioned by the postponement." We conclude that this was a reasonable term and condition of granting the continuance under the facts and circumstances of this case.

The next issue raised by plaintiff is that the circuit court erred in failing to admonish the defendants and witnesses against making claims or statements or offering evidence concerning the negligence of Bennett and to instruct the jurors that Bennett was not liable as a matter of law and that they were not to consider the negligence or liability of Bennett. Plaintiff argues that our affirmance of the summary judgment in Olesen v. Snyder, supra, became the law of the case. We agree with the defendants' contention that plaintiff misconstrues the scope of our decision. In Olesen, we decided the narrow issue of whether summary judgment was proper under the guest statute as to liability for ordinary negligence which was pled in the complaint. We did not address the issue of whether Bennett was indeed negligent and thereby may have caused or contributed to the decedent's injury and death. We did not address the issue of Bennett's possible wanton and reckless misconduct because it was not pled. We also did not address the issue of whether Bennett may be found liable for an independent act of negligence after the accident in that a new obligation arose to render aid to the decedent which terminated the guest relationship. This was also due to the fact that plaintiff did not allege such a new obligation in the...