Patton v. Henrikson

• Decision Date: 29 April 1963
• Docket Number: No. 4585,4585
• Citation: 380 P.2d 916,79 Nev. 197
• Parties: Milbern PATTON, as guardian ad Iitem of Glen Edward Brehm, and Milbern Patton, individually, Appellants, v. Emma HENRIKSON, Respondent.
• Court: Nevada Supreme Court

Page 916

380 P.2d 916

79 Nev. 197

Milbern PATTON, as guardian ad Iitem of Glen Edward Brehm and Milbern Patton, individually, Appellants, v. Emma HENRIKSON, Respondent.

No. 4585.

Supreme Court of Nevada.

April 29, 1963.

Harry A. Busscher, Reno, for appellants.

Goldwater, Taber & Hill, Reno, for respondent.

THOMPSON, Justice.

Glen Edward Brehm, a minor, was injured while driving a motor scooter which collided with a car being driven by Emma Henrikson. Brehm's guardian ad litem filed suit to recover damages. A jury found for the defendant Henrikson and judgment was entered on the verdict. Plaintiff-guardian appeals. Five errors are assigned.

First: Appellant contends that prejudicial error occurred when the trial court permitted defense counsel to argue the law and cite legal authority in the presence of the jury. The record shows that, during the direct examination of a defense witness, the objection of 'no foundation' was made by plaintiff's counsel to a question calling for the witness' opinion as to the speed of the motor scooter just before the collision. During argument on the objection, defense counsel read from a legal text. The argument was addressed to the court, and not to the jury, though the latter was present. No request was made that the jury be excused during argument on the objection.

We reject the appellant's contention as incredible. The citation of authority to the court in support of the respective contentions of counsel in arguing for or against the merit of an objection made, is to be encouraged, not censured. The assistance of counsel is solicited by the courts and gratefully accepted. Had appellant's counsel believed that the arguments to occur on the objection he interposed should not be heard by the jurors, he should have asked the court to excuse them. He did not.

The reading of law to the court in the presence of the jury in arguing an objection made to evidence sought to be introduced during trial, is to be distinguished from the reading of law (other than instructions) to the jury during summation. In the latter instance, such conduct is sometimes deemed improper practice. Annot., 66 A.L.R.2d 9, ¹ while, in the former, it is to be commended.

Second: Next the appellant argues that prejudicial error occurred when the trial court permitted a witness, over objection, to express her opinion as to the speed of the motor scooter immediately before the collision. The witness was 15 years old at the time of the accident. The competency of a nonexpert witness to testify as to the rate of speed of a moving vehicle is shown if such witness is of ordinary intelligence and has had an adequate opportunity to observe the vehicle at the time in question. 70 A.L.R. 540; 94 A.L.R.1190; 156 A.L.R. 384; Southwestern Freight Lines v. Floyd, 58 Ariz. 249, 119 P.2d 120; Davis v. Lavenik, 178 Or. 90, 165 P.2d 277. Here the witness was shown to satisfy the competency requirement. She was of ordinary intelligence. She observed the motor scooter in motion for an estimated 15 or 20 seconds immediately before the collision. Her youth and the fact that she was not then licensed to drive are factors to be considered in assessing the weight to be accorded her testimony but do not, alone, preclude its admissibility.

Third: Over the objection of 'immateriality' the same witness was permitted to relate that, some time after the accident, she had taken a drivers training course in high school. The trial court's ruling is urged to be reversible error. We agree with appellant that the witness' experience with cars, acquired some time after the accident, is not material or relevant to show either that she was of ordinary intelligence at the time of the accident or that, at said time, she had sufficient opportunity to observe the motor scooter to enable her to estimate its speed. However, the foundation requirements to establish her testimonial qualification in that regard were otherwise shown. Accordingly, the erroneous reception of such immaterial evidence, innocuous rather than inherently prejudicial in nature, is not a predicate for reversible error. Therefore, we deem the error harmless. NRCP 61.

Fourth: During cross examination of defendant the following happened:

'Q. Mrs. Henrikson, who took these photographs? A. I don't know.

'Q. Do you know when they were taken? A. No, I don't. I went up the next day with my insurance adjuster.'

Defense counsel moved for a mistrial. Plaintiff's counsel responded by arguing that the mention made of insurance was a 'volunteer answer' and harmless. The motion for mistrial was denied.

Had plaintiff won his case in the trial court, and had the defendant perfected an appeal assigning the court's ruling as error, we would have to decide whether or not the questions and answers quoted come within the rule announced in Henry v. Baber, 75 Nev. 59, 334 P.2d 839. ² However, here the plaintiff lost his case and appealed. The occurrence...