Owen v. Taylor, 6880

• Court: United States State Supreme Court of Idaho
• Writing for the Court: HOLDEN, J.
• Citation: 62 Idaho 408,114 P.2d 258
• Docket Number: 6880
• Decision Date: 29 April 1941
• Parties: MARIANNA OWEN, Respondent, v. EVERETT TAYLOR, by C. E. Taylor, his guardian ad litem, Appellant

114 P.2d 258

62 Idaho 408

MARIANNA OWEN, Respondent,
v.
EVERETT TAYLOR, by C. E. Taylor, his guardian ad litem, Appellant

No. 6880

Supreme Court of Idaho

April 29, 1941

REHEARING DENIED JUNE 23, 1941

AUTOMOBILES-NEGLIGENCE-INJURY TO GUEST-TRIAL-INSTRUCTIONS-APPEAL AND ERROR-QUESTIONS OF FACT-QUESTIONS OF LAW-DAMAGES, AMOUNT OF.

1. Where transcript on appeal did not contain a certificate of the trial judge as to the papers, records, and files considered by him at the hearing of appellant's motion for a new trial, [62 Idaho 409] as required by court rule, an application for diminution of the record so as to supply such certificate, made a week before the appeal was heard, was granted and the certificate filed. (Supreme Court Rules, rule 23.)

2. Damages for pain and suffering are susceptible to proof only with an approximation of certainty, and it is solely for the jury to estimate such damages as best they can by reasonable probabilities, based upon their sound judgment as to what would be just and proper under all of the circumstances.

3. A jury's award of damages for pain and suffering may not be disturbed on appeal in the absence of some showing that the jury were biased or prejudiced or arrived at the amount thereof in some irregular manner.

4. An award of $2,500 damages for injuries sustained by a girl when the automobile, in the rumble seat of which she was riding as a guest, struck a depression in the road throwing her several feet into the air and resulting in cuts in both legs, the treatment of which caused severe pain and suffering, and an injury to her back which continued to the time of trial 2 years after accident, was not excessive.

5. In guest's action for injuries sustained while riding in defendant's automobile, where the jury was correctly instructed as to both ordinary and gross negligence, and as to the law of the road, and such instructions were not misleading, defendant could not complain of failure to instruct jury as to the distinction between an unlawful act and a negligent act, or an unlawful act and an act of gross negligence, where defendant requested no such instructions. (I. C. A., secs. 7-206 to 7-208.)

6. Where instructions given are correct as far as they go, error cannot be assigned on ground that court omitted to instruct on all points involved unless the attention of the court was directed thereto by special request for instruction on such points. (I. C. A., secs. 7-206 to 7-208.)

7. In guest's action for injuries sustained while riding in defendant's automobile, where there was neither pleading nor proof as to contributory negligence on guest's part, court properly refused defendant's requested instruction as to contributory negligence. (I. C. A., secs. 7-206 to 7-208.)

8. No instruction should be given which tenders an issue that is not supported by the pleadings and the evidence adduced in support thereof, or which deviates therefrom in any material respect.

9. In the absence of pleading or proof to the contrary, the statutory law of the state wherein a cause of action arose was presumed to be the same as the statutory law of Idaho.

[62 Idaho 410]

10. If, after considering all the evidence and the inferences that may be deduced therefrom, the court is in doubt whether reasonable men, in viewing all the evidence, might arrive at different conclusions on the issue of negligence, such question of negligence is a "question of fact" for the jury, and becomes a "question of law" for the court only in clear cases entirely free from doubt.

11. Under evidence that defendant was driving 35 miles per hour over a rough, ungraded road, just wide enough for one vehicle, with a guest riding in the rumble seat with nothing upon which to hold in case of necessity to avoid being thrown out of the automobile, whether defendant was guilty of "gross negligence," so as to render him liable under guest statute, before amendment, for injuries sustained by guest when automobile struck a depression in the road was for the jury. (I. C. A., sec. 48-901.)

REHEARING DENIED JUNE 23, 1941.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. Thos. F. Buckner, Judge.

Action by Marianna Owen to recover damages for personal injuries suffered while riding in an automobile as a guest of Everett Taylor. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs to respondent.

Elam & Burke, for Appellant.

It is as much the duty of the court to determine as a matter of law whether there is evidence to establish gross negligence in a guest case as it is to test the evidence to ordinary negligence in the ordinary negligence case. (The following citations are from various states. The degree of negligence required by guest statute is quoted after each state.) (Georgia--No Guest Statute--Harris v. Reed, 117 S.E. 256; Wachtel v. Bloch, 160 S.E. 97. Iowa--"Reckless Operation"--Shenkle v. Mains, 247 N.W. 635. Kansas--"Gross and Wanton"--Sayre v. Malcolm, 31 P.2d 8. Massachusetts--No Guest Statute--Burke v. Cook, 141 N.E. 585; Broderick v. Lyons, 165 N.E. 11. Michigan--"Gross"--In re Mueller's Estate, 273 N.W. 448; Fink v. Dasier, 263 N.W. 412. Oregon--"Gross"--Rauch v. Stecklein, 20 P.2d 387.)

George Donart and Norris & Kenward, for Respondent.

A gratuitous guest riding in an automobile is entitled to recover damages for injuries sustained by the driver's gross negligence or his reckless disregard for the rights of others. (Sec. 48-901, I. C. A.,; sec. 55-1209, Olson's Oregon Laws.)

If any substantial evidence of negligence, particularly continuing negligence, is shown to exist, then the question of whether such negligence is gross negligence becomes one of fact for the jury. (Rees v. Chase, 38 P.2d 819; Meek v. Fowler, 35 P.2d 410; Abbott v. Cavalli, 300 P. 67; Wald v. Gardner, 294 P. 574.)

The appellant can not complain of the failure of a court to give a clarifying instruction in the absence of a specific request therefor. (Weed v. Idaho Copper Company, 51 Idaho 737, 10 P.2d 613; Joyce v. Stanfield, 33 Idaho 68, 189 P. 1104; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460.)

HOLDEN, J. Givens, Morgan and Ailshie, JJ., concur. BUDGE, C. J. (Concurring specially).

OPINION [114 P.2d 259]

[62 Idaho 411] HOLDEN, J.

The accident out of which this litigation arose happened near Ontario, Oregon, May 12, 1938. This action was commenced in the district court of Payette County, Idaho, July 15, 1939. February 8, 1940, respondent filed an amended complaint. Appellant answered denying the allegations of gross negligence, but did not plead contributory negligence. The case was tried to a jury; it returned a verdict in favor of respondent for $ 2500, and judgment was entered thereon. Defendant thereafter gave notice of intention to move for a new trial and later moved for a new trial. The motion was denied. Defendant then appealed from both the judgment and order denying motion for new trial, but did not obtain a certificate of the trial judge as to the papers, records and files used and considered by him at the hearing of the motion for a new trial, as required by rule 23 of this court. March 14, 1941 (just a week before this appeal [62 Idaho 412] was heard), the required certificate was obtained. On the next day an application in re diminution of the record was filed in this court by which appellant seeks to supply such certificate. The application is not supported by any showing whatever.

Appellant relies upon Gloubitz v. Smeed Brothers, 52 Idaho 725, 727, 20 P.2d 198, where this court held:

"Such certificate is not jurisdictional and the failure to include it in the transcript may be corrected before final submission of the case on appeal." (See also: Steensland v. Hess, 25 Idaho 181, 136 P. 1124; Smith v. Inter-Mountain Auto Company, Ltd., 25 Idaho 212, 215, 136 P. 1125; Burgess v. Corker, 25 Idaho 217, 136 P. 1127; Witt v. Beals, 31 Idaho 84, 169 P. 182.)

Respondent relies upon Sweaney & Smith Co. v. St. Paul Insurance Co., 35 Idaho 303, 313, 206 P. 178, where we held:

"Therefore the appellant, if he fails by his praecipe to require papers, records and files sent up for review, it is his error and he cannot thereafter by suggestion of diminution of the record, bring up to this court such papers, files and records. In such a case a suggestion of the diminution of the record would only justify bringing up to this court omitted portions of the judgment-roll or a bill of exceptions filed in the case. It is also clear that after the record has been filed in this court, appellant cannot be permitted to file an amended praecipe, designating therein certain papers, records or files which it failed to include in the original praecipe, for the reason that it cannot complain of its own error." (Approved and followed in Douglas v. Kenney, 40 Idaho 412, 418, 233 P. 874. See also: Bedford v. Gem Irrigation District, 51 Idaho 105, 106, 4 P.2d 366; Eldridge v. Payette-Boise W. U. Assn., 50 Idaho 347, 296 P. 1022; Newby v. City of St. Anthony, 48 Idaho 608, 284 P. 1028.)

As just pointed out, no showing whatsoever is made as to why the required certificate was not obtained in the first instance and included in the praecipe and record, nor as to why the making of the application was delayed until a few days before the appeal was heard by this court. Hence, the writer takes the view the application [62 Idaho 413] should be denied, but a majority hold it should be granted and the certificate filed. That brings us at once to appellant's contention the "verdict of the jury was excessive and appeared to be given under the influence of passion and prejudice" for the reason it is insisted the injuries suffered were slight and temporary. The evidence, briefly, is as follows:

That respondent received a long laceration in her left leg and a smaller one in the right leg; that the left leg was split...