Packard v. O'Neil

• Decision Date: 31 December 1927
• Docket Number: 4852
• Citation: 262 P. 881,45 Idaho 427
• Court: Idaho Supreme Court
• Parties: ORRIS ALETHA PACKARD, Widow of WILLIAM E. PACKARD, Deceased, and FRANK L. PACKARD, Minor Child of WILLIAM E. PACKARD, Deceased, by ORRIS ALETHA PACKARD, His Guardian, Respondents, v. W. A. O'NEIL, Appellant

262 P. 881

45 Idaho 427

ORRIS ALETHA PACKARD, Widow of WILLIAM E. PACKARD, Deceased, and FRANK L. PACKARD, Minor Child of WILLIAM E. PACKARD, Deceased, by ORRIS ALETHA PACKARD, His Guardian, Respondents, v. W. A. O'NEIL, Appellant

No. 4852

Supreme Court of Idaho

December 31, 1927

ACTION FOR WRONGFUL DEATH-PRESUMPTION IN FAVOR OF SELF-PRESERVATION-EVIDENCE-SUFFICIENCY-CONFLICT-PUBLIC HIGHWAYS-LAWS OF THE ROAD-INTOXICATION-NEGLIGENCE-STATUTORY PRESUMPTION-POLICE POWER-CONSTITUTIONAL LAW.

1. Where there was substantial, although conflicting, evidence from which jury could adopt either plaintiffs' or defendant's theories regarding cause of automobile collision, verdict for plaintiffs will not be disturbed on ground that evidence is insufficient to sustain it.

2. In action for death of motorcyclist resulting from collision with automobile, allegation in complaint that defendant was under influence of intoxicating liquors included condition of being in state of intoxication and authorized court to give instruction, under Laws 1921, chap. 249, sec. 1, subd. 18 that, if defendant was in state of intoxication he was conclusively deemed to have been unable to control automobile, expression, "under influence of intoxicating liquor," covering not only well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is result of indulging in any degree of intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess.

3. In action for death of motorcyclist resulting from collision with automobile, each party had right to have issues raised by pleadings, when supported by any competent evidence submitted to jury under proper instructions.

4. A doubt as to constitutionality of an act should be resolved in its favor, and, to declare it unconstitutional, it must clearly appear to be so.

5. Legislatures, by virtue of their inherent police powers and plenary jurisdiction over roads, may make regulations governing conduct of owners and drivers of all vehicles.

6. Laws 1921, chap. 249, sec. 1, subd. 18, providing that person in state of intoxication is deemed conclusively to be unable to control and operate vehicle should not receive narrow or strained construction, but a common-sense interpretation should be given it in view of its manifest purpose, since guiding principle in interpretation of such statutes is ascertainment of legislative intent.

7. Purpose of Laws 1921, chap. 249, sec. 1, subd. 18, providing that persons in state of intoxication are deemed conclusively to be unable to control and operate vehicles, is to make persons who are in state of intoxication liable for any damage resulting from their acts while on public highways effect and design being to thereby minimize danger of injuries to others.

8 Const. U.S. , Amend. 14, sec. 1, was intended to prohibit arbitrary deprivation of life or liberty, or spoliation of property, but does not limit subjects on which police power of state may be lawfully exerted.

9. Establishment, maintenance and control of public highways and roads are embraced and included within "police powers" of states.

10. Laws 1921, chap. 249, sec. 1, subd. 18, providing that persons in state of intoxication are deemed conclusively to be unable to control and operate vehicles on highways held within definition of police powers of state and may be classed as reasonable regulation incident to right to control the use of public highways of state.

11. Laws 1921, chap. 249, sec. 1, subd. 18, providing that person in state of intoxication is deemed conclusively to be unable to control and operate vehicle on highways, specifying condition under which presumption of negligence shall arise and providing for determination of liability by judicial proceedings, does not involve taking of property without due process of law, in violation of Const. U.S. , Amend. 14, sec. 1.

12. Laws 1921, chap. 249, sec. 1, subd. 18, providing that any person in state of intoxication is deemed conclusively to be unable to control and operate vehicle on highways, held not wanting in due process of law nor repugnant to Fourteenth Amendment to constitution of United States.

13. Ordinarily, necessity for resorting to presumptions disappears when there is direct and positive evidence on subject.

14. In action for death of motorcyclist resulting from collision with defendant's automobile, giving instruction that there was presumption that motorcyclist was exercising due care for protection of his person at time of accident, but presumption was not conclusive, where there were eye-witnesses who testified directly as to acts of motorcyclist, held not prejudicial error.

15. In action for death of motorcyclist resulting from collision with defendant's automobile, refusal to take from jury's consideration question of defendant's alleged failure to render aid and assistance to motorcyclist after accident, held not error, where plaintiffs' counsel had stipulated that motorcyclist died as result of injuries received, since there was no intention evidenced in stipulation to eliminate charge of negligence predicated on failure of defendant to render assistance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondents.

Dean Driscoll, for Appellant.

The evidence is insufficient to show negligence on the part of the appellant in causing the accident or in aiding and assisting the deceased after the accident and to show that any lack of aid or assistance after the accident contributed to the death of Packard.

The court erred in instructing the jury that if the appellant was in a state of intoxication at the time of the accident, he was conclusively deemed to be unable to control and operate the automobile, for there was no issue on the subject since the complaint neither charges that the defendant was intoxicated nor that he was unable to control or operate the automobile. "Under the influence of intoxicating liquor" is distinguished from "state of intoxication." (Freeburg v. State, 92 Neb. 346, Ann. Cas. 1913E, 1101, 138 N.W. 143; Commonwealth v. Lyseth, 250 Mass. 555, 146 N.E. 18.)

There is no evidence that the appellant was in a state of intoxication and a state of sobriety is presumed. (1 Jones on Evidence, 2d ed., sec. 259.)

1921 Sess. Laws, chap. 249, subsection 18 of sec. 1, on which the instruction is based is unconstitutional because the legislature cannot create conclusive presumptions. ( Mobile J. & K. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, Ann. Cas. 1912A, 463, 32 L. R. A., N. S., 226; 12 C. J. 1234; Cooley's Const. Limitations, 7th ed., 526; Wilson v. Locke, 18 Idaho 582, 111 P. 247; O'Neill v. United States, 19 F.2d 322; Elliott v. Tillamook, 86 Ore. 427, 168 P. 77; Zeigler v. South. & N. A. R. Co., 58 Ala. 594; State v. Atkinson, 271 Mo. 28, 195 S.W. 741; Shellabarger Elevator Co. v. Illinois Cent. R. R. Co., 278 Ill. 333, 116 N.E. 170, L. R. A. 1917E, 1011; Eastman v. Jennings-McCrae Logging Co., 69 Ore. 1, Ann. Cas. 1916A, 185, 138 P. 216.)

The court's instruction to the effect that the presumption of due care on the part of deceased was evidence and was to be weighed as such was error so long as there was direct evidence on the subject. (1 Jones, 2d ed., secs. 30-33, inc.; Ryan v. Union Pacific R. R. Co., 46 Utah 530, 151 P. 71; Stumpf v. Montgomery, 101 Okla. 257, 36 A. L. R. 971, 226 P. 65; Shepherd v. City of Philadelphia, 279 Pa. 333, 123 A. 790; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89.)

The court erred in not taking the question of whether the appellant rendered aid and assistance after the accident from the jury and striking the testimony on the subject for the reason that not only evidence showed but the parties stipulated that appellant died as direct result of the injuries received in the accident, irrespective of what happened afterward.

Hawley & Hawley, for Respondents.

Where there is a conflict in the evidence, the finding of the jury will not be disturbed. (Walker v. Idaho Lettuce Co., 44 Idaho 478, 258 P. 931; Oregon Short Line R. Co. v. Mountain States Tel. & Tel. Co., 41 Idaho 4, 237 P. 281; Clark's Idaho Digest, p. 122.)

The legislature has the power to determine rules of substantive law, and 1921 Sess. Laws, chap. 249, subd. 18, is constitutional.

In determining the constitutionality of an act of the legislature, it is the duty of the court, if possible, to uphold the act. (State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149.)

The statute expresses a rule of substantive law, not a rule of evidence. (Hawkins v. Ermatinger, 211 Mich. 578, 179 N.W. 249; Jones v. Brim, 165 U.S. 180, 17 S.Ct. 282, 41 L.Ed. 677; Hindman v. Oregon Short Line Ry. Co., 32 Idaho 133, 178 P. 837; Bernardi v. Northern Pacific Ry. Co., 18 Idaho 76, 108 P. 542, 27 L. R. A., N. S., 796; State v. Kasiska, 27 Idaho 548, 150 P. 17; Commonwealth v. Pentz, 247 Mass. 500, 143 N.E. 322; Brown v. Feeler, 35 Idaho 57, 204 P. 659; Sweetland v. Oakley State Bank, 40 Idaho 726, 236 P. 538; Ex parte Kneedler, 243 Mo. 632, Ann. Cas. 1913C, 923, 147 S.W. 983, 40 L. R. A., N. S., 622; Johnson v. Sergeant, 168 Mich. 444, 134 N.W. 468; Huddy on Automobiles, p. 9; Babbitt, Law of Motor Vehicles, sec. 26; Street v. Farmers' Elevator Co., 34 S.D. 523, 149 N.W. 429; Yazoo & Miss. Valley Ry. Co. v. Bent, 94 Miss. 681, 47 So. 805, 22 L. R. A., N. S., 821; 2 Wigmore on Evidence, pp. 1665, 1666.)

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