Rindlisbaker v. Wilson

• Decision Date: 11 February 1974
• Docket Number: No. 11127,11127
• Citation: 95 Idaho 752,519 P.2d 421
• Parties: F. Clair RINDLISBAKER et al., Plaintiffs-Respondents, v. Irene M. WILSON, Executrix of the Estate of E. M. Wilson, Deceased, formerly dba Wilson's Farm Service Company, et al., Defendants, and Farmore Distributing Co., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 421

519 P.2d 421

95 Idaho 752

F. Clair RINDLISBAKER et al., Plaintiffs-Respondents, v. Irene M. WILSON, Executrix of the Estate of E. M. Wilson, Deceased, formerly dba Wilson's Farm Service Company, et al., Defendants, and Farmore Distributing Co., Defendant-Appellant.

No. 11127.

Supreme Court of Idaho.

Feb. 11, 1974.

Rehearing Denied March 20, 1974.

Ben Peterson, Pocatello, R. Vern Kidwell, Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, Richard C. Fields, Boise, for defendant-appellant.

Hugh C. Maguire, Jr., Maguire & Kisling, Dale W. Kisling, Pocatello, for plaintiffs-respondents.

BAKES, Justice.

Respondent F. Clair Rindlisbaker brought this action for damages against the manufacturer and distributor of a fertilizer applicator and against the fertilizer dealer who furnished the applicator to respondent for use in respondent's field.

In 1967 respondent's father, with whom respondent was a partner in a family farming partnership, called Wilson's Farm Service (hereinafter Wilson) and placed an order for anhydrous ammonia fertilizer. Wilson filled the order by sending an employee to the Rindlisbaker farm with a Farmore fertilizer applicator filled with anhydrous ammonia. The employee was instructed to place the applicator into operation.

The Farmore applicator delivered to the Rindlisbaker farm was manufactured for the purpose of applying liquid chemical fertilizer to the soil and consists of a 750-gallon fertilizer tank resting on a platform from which two folding steel wings extend approximately twenty feet on each side. The liquid fertilizer is pumped through the extended wings and injected into the earth through curved shanks which descend at regular intervals from each wing. In order to allow the applicator to be transported on the highways, the extended wings fold upright at each side of the platform until they extend vertically. The wings are held in the vertical position by a retaining pin. From the vertical position the wings are lowered into an operational (horizontal) position by following three separate steps: (1) attaching a winch cable to the wing; (2) removing the retaining pin; and (3), gradually lowering the wing by operating the winch. If the pin is removed without the winch cable attached, it is possible for the 750-pound applicator wing to fall. The applicator was manufactured with only one winch and winch cable and had no warning signs attached indicating the proper method of lowering the wings and the attendant danger if the sequence was not followed.

As the Wilson employee was lowering the right applicator wing in preparation for placing the applicator into operation, respondent, attempting to be helpful, pulled the retaining pin on the left applicator wing. The evidence is conflicting at this point concerning whether or not the Wilson employee indicated to respondent that respondent should pull the pin. When the pin was pulled, the applicator wing fell on respondent, paralyzing him instantly from the waist down and rendering him a permanent paraplegic. At the time of the accident, respondent was 28 years old.

The basic applicator frame was manufactured by Ben Hunt & Sons, for appellant Farmore Distributing, apparently using a design developed by both Farmore and Ben Hunt. Farmore completed the applicator by installing the specified tanks, hoses, shanks, etc. The completed applicator was then, in the case, sold to Wilson for use in his farm service business.

Respondent, joined by his wife and three children, subsequently brought an action against Wilson, appellant Farmore Distributing, Ben Hunt & Sons, and Shell Oil Company. After a lengthy trial, a jury returned a verdict in favor of respondent F. Clair Rindlisbaker and his wife, Bonnie Rindlisbaker, against appellant Farmore and Wilson jointly and awarded the sum of $400,000 to respondent Rindlisbaker and $15,000 to his wife. After the trial court's denial of appellant's motions for a judgment notwithstanding the verdict and for a new trial, appellant brought his appeal. We will not discuss each of appellant's 36 assignments of error separately, but will consider them in groups according to the substantial questions raised. Benson v. Brady, 73 Idaho 553, 255 P.2d 710 (1953).

Appellant first contends that the trial court's action in permitting Bonnie Rindlisbaker to prosecute a separate claim for the loss of the 'services' and 'support' of her husband, F. Clair Rindlisbaker, was error. Appellant does not question a wife's right to recover damages for loss of consortium resulting from injury to her husband caused by a third person's negligence, but claims that Mrs. Rindlisbaker's complaint was for the 'services' and 'support' of Mr. Rindlisbaker and thus a duplication of Mr. Rindlisbaker's claim for 'loss of wages.' In respondents' amended complaint, page 13, paragraph II, Mrs. Rindlisbaker claimed that she 'has suffered and will continue to suffer extreme mental anguish by reason of her husband's injuries and has been permanently deprived of the care, comfort, society, consortium, services, companionship, protection and support of her husband, F. Clair Rindlisbaker . . ..'

An analysis of the complaint indicates that the substance of Mrs. Rindlisbaker's claim was for the loss of consortium, care, comfort, society, companionship, services and protection of her husband. Idaho has recognized the right of a wife to sue for loss of consortium caused by a negligent injury to her husband. Accordingly, that portion of the complaint was properly allowed. Nichols v. Sonneman, 91 Idaho 199, 418 P.2d 562 (1966). See also General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), and Annot., 36 A.L.R.3d 900 and supplement. Diaz v. Eli Lilly & Co., 302 N.E.2d 555 (Mass.1973). Respondent concedes, and we agree, that if Mrs. Rindlisbaker's claim for support was for pecuniary support, it should not have been allowed in that it was redundant with Mr. Rindlisbaker's claim for loss of wages. Doggett v. Boiler Engineering and Supply Co., 93 Idaho 888, 477 P.2d 511 (1970). However, the word 'support' was mentioned only in the amended complaint. Mrs. Rindlisbaker's testimony at the trial concerned only Mr. Rindlisbaker's inability to provide support in family matters such as discipline of the children, family activities, etc. She did not in any way testify concerning the loss of financial support. Mrs. Rindlisbaker's loss of the consortium, care, comfort, society, companionship, services and protection of her husband would easily justify an award of $15,000. Therefore, we cannot say that the inclusion of the word 'support' in the amended complaint in any way misled the jury. Where there is substantial evidence to support the verdict of the jury, judgment will not be reversed on appeal by reason of errors or defects in proceedings which do not affect substantial rights of parties. IRCP Rule 61; Rosenberg v. Toetly, 94 Idaho 413, 489 P.2d 446 (1971). The trial court's action in permitting Mrs. Rindlisbaker's complaint to include the word 'support' in her claim against appellant was harmless error.

Appellant next contends that the trial court erred in allowing the introduction into evidence of a covenant not to execute between Rindlisbaker and Wilson Farm Service, together with certain statements relative to the covenant, and the trial court's statement that Irene Wilson was a party only for technical reasons. Prior to trial, respondents settled with Irene Wilson, executrix of the estate of E. M. Wilson, for $50,000 and executed a 'Covenant Not to Execute.' At the start of the trial, the court informed the jury that Irene Wilson was only a party for technical reasons. During the course of the trial, when Mr. Rindlisbaker was testifying concerning his accumulated medical expenses, counsel for Ben Hunt, one of the co-defendants, inquired of Mr. Rindlisbaker whether the bills had been paid with money obtained from Wilson Farm Service under the terms of a settlement. Mr. Rindlisbaker responded in the affirmative. At that time the only objection made was made by counsel for respondent Rindlisbaker who objected on the basis that such testimony was irrelevant and immaterial to the issues before the court. Respondent's objection was overruled. On redirect, Mr. Rindlisbaker testified to the effect that the settlement was executed because the limit of Wilson's liability insurance was $50,000 and that Mr. Rindlisbaker in no way considered the $50,000 as full compensation for his injuries. Appellant Farmore objected to the explanation of respondent's reasons for executing the covenant and also to the introduction of the covenant into evidence.

Concerning the introduction of the covenant not to execute, appellant's first objection to the covenant was raised when it was offered into evidence. At that time, appellant objected on the ground that the covenant was self serving. We find no independent rule of law which states that statements which are self serving must be excluded. ¹ Bell, Handbook of Evidence for the Idaho Lawyer, 2d Ed., at p. 129. In fact, most testimony is self serving to some degree. An objection which was correctly overruled by the trial court on the ground stated cannot be considered on appeal on a different ground. State v. Pruett, 91 Idaho 537, 428 P.2d 43 (1967). Accordingly, there was no error in the trial court's ruling on the objection raised by appellant to the introduction of the covenant not to execute.

Appellant strenuously urges that the trial court's action in permitting Mr. Rindlisbaker to testify concerning the limits of the liability insurance held by E. M. Wilson and Mr. Rindlisbaker's reasons for executing the covenant was so prejudicial so as to necessitate a new trial. The area of inquiry into the settlement and terms thereof was opened by appellant's co-defendant Ben Hunt. Appellant Farmore made no objection to the line of inquiry until respondent was allowed to explain that he did not consider the...