Rosenberg v. Toetly

• Decision Date: 01 October 1971
• Docket Number: No. 10693,10693
• Parties: Henry A. ROSENBERG and Mary Rosenberg, husband and wife, Plaintiffs-Appellants, v. Carl TOETLY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 446

489 P.2d 446

94 Idaho 413

Henry A. ROSENBERG and Mary Rosenberg, husband and wife, Plaintiffs-Appellants, v. Carl TOETLY, Defendant-Respondent.

No. 10693.

Supreme Court of Idaho.

Oct. 1, 1971.

Philip E. Peterson, Lewiston, for plaintiffs-appellants.

Ware, Stellmon & O'Connell, Lewiston, for defendant-respondent.

McQUADE, Chief Justice.

This action for damages resulting from an automobile collision was previously before this Court in 1969, ¹ on appeal by defendant-respondent Toetly after a jury verdict for defendant and an order by the trial judge for a new trial. We affirmed the order granting a new trial. ² Subsequently, a new trial was had in the district court, and again the jury rendered a verdict in favor of the defendant Toetly. Judgment was entered for Toetly based on the verdict. Plaintiffs-appellants Henry and Mary Rosenberg now appeal from a denial by the trial court of their motion for a judgment notwithstanding the verdict or a new trial.

This lengthy litigation arose from an automobile accident which occurred near Plummer, Idaho, on August 28, 1966. The appellants were riding in an automobile driven by Richard Renner traveling south on U. S. Highway 95, returning to Lewiston from a day at the horse races in Coeur d'Alene. Mrs. Renner was also a passenger in that automobile. Respondent Toetly was driving an automobile traveling north on U. S. Highway 95. The highway sough of the location of the collision goes into a broad curve. No speed restrictions below the highway maximum are posted for the curve. North of the collision location, the highway traverses a hill. The collision occurred below the brow of the hill.

The facts as to the events just prior to the collision are strongly contested. Respondent and one Isaac Sijohn testified that the Renner vehicle was attempting to pass the slower moving Sijohn vehicle. There did not appear to be adequate space or time for the pass to be completed before meeting respondent's oncoming vehicle. Sijohn testified that he applied his brakes and steered his vehicle to the right hand side of the road. Respondent testified that he saw that a collision with the Renner vehicle appeared imminent, and that he applied his brakes with force. He testified that such application of brakes caused his automobile to swerve uncontrollably to the left, across the center line of the highway. Sijohn and the respondent testified that when the collision occurred, the Renner vehicle was almost back in its proper lane. Respondent testified that he thought his brakes were good, and had recently had them relined.

Neither of the Rosenbergs recalled Renner passing Sijohn's vehicle in the area of the collision, although Henry Rosenberg recalled they passed a vehicle somewhere north of the collision site. Rosenbergs testified that they first saw respondent's vehicle as it came around the curve south of the collision site. They testified that it appeared to be traveling at a high rate of speed, and that it veered from side to side, but that respondent appeared to have control of his vehicle until he swerved in front of them. Renner testified that he had passed Sijohn shortly before the collision, but that he was easily back in his lane before the respondent's vehicle suddenly swerved left and into the path of his vehicle.

The focal point of this conflict in the testimony is the location of the attempt by Renner to pass Sijohn's vehicle. Respondent and Sijohn testified the passing took place at the south end of a roadside parking area. Renner testified that the attempted pass took place as soon as the double yellow line (prohibiting passing) ended as he came down the hill toward the collision site. Renner further testified that the yellow line ended 500 to 600 feet from the north end of the roadside parking area, and 1060 feet from the site of the collision itself.

Appellants urge this Court to hold that prejudicial error was committed by the trial court, and that a new trial must be had. Appellants' first assignment of error in support of this contention is that the trial court erred in refusing to grant their motion for a judgment notwithstanding the verdict or a new trial. As this Court stated in the case of Archer v. Shields Lumber Co., ³

'(I)t appears a rule of long standing in this jurisdiction that the trial courts possess a discretion to be exercised wisely in granting or refusing (a) new trial, and at least in instances where the motion for a new trial has been denied such discretion will not be disturbed by the appellate court unless it clearly appears to have been exercised unwisely and to have been manifestly abused. (Citations omitted).' (Emphasis theirs).

The discretion to grant or refuse to grant a new trial is a legal discretion to determine that the verdict is unsupported by the evidence, or is contrary to the weight of the evidence. ⁴ In the instant case, there was a great deal of conflicting evidence to be weighed by the jury on the crucial issues of the location of the pass and the use and condition of the brakes on respondent's automobile. There was no abuse of discretion by the trial court in denying appellants' motion for a new trial.

A motion for judgment notwithstanding the verdict is to be granted only when the evidence, considered most favorably to the opposing party, is insufficient to support the verdict. ⁵ In view of the conflicting evidence weighed by the jury, this motion was also properly denied.

The second assignment of error challenges the trial court's denial of a motion, under I.R.C.P. 12(f), to strike the defense based on joint venture. Had that defense been stricken, contributory negligence would not have been in issue, and allegedly prejudicial evidence of Renner's drinking would not have reached the jury. A motion to strike will not be granted where the defense pleaded raises on its face genuine questions of law or fact. ⁶ Appellants argue that their submission of an affidavit denying joint venture, contrasted with respondent's failure to produce a counter-affidavit, established that joint venture was a sham issue. But there is no provision in I.R.C.P. 12(f) for reliance by the movant upon affidavits in support of the motion. Because motions to strike do not present occasions to test the sufficiency of facts to support a defense, the trial court properly did not consider material outside the pleadings in ruling on the motion. ⁷ Nor did inclusion of an affidavit transform the motion to strike into a motion for summary judgment or partial summary judgment under rules 56(a) and 56(e). Rules 12(b) and 12(c) do so transform motions for dismissal for failure to state a claim upon which relief can be granted and for judgment on the pleadings; but the Idaho rules, like the federal rules, make no such provision in 12(f).

Appellants next assign as error the trial court's allowance of respondent's exhibit A into evidence. Exhibit A is a photograph of an ice chest with beer and whiskey bottles in it. The chest was in the trunk of the Renner vehicle. Appellants argue the photograph was overly prejudicial and irrelevant, and therefore, inadmissable. It is difficult to follow appellants' argument that the photograph was irrelevant. At the time it was introduced, the contributory negligence of Richard Renner was in issue. Certainly, the amount of alcohol he consumed was relevant to that issue. Additionally, the photograph was probative of the accuracy of the observations of Richard Renner and Henry Rosenberg, and was relevant as evidence in impeachment of the tesitmony of Renner and appellants as to the quantity of liquor that was actually consumed in the hours preceding the collision. But, appellants argue, the photograph was excessively prejudicial to their case in light of the small amount of value the photograph had as probative evidence. Appellants cite St. Lukes Hospital Assn. v. Long, ⁸ Evansville School Corp. v. Price, ⁹ Ryan v. United Parcel ¹⁰ and Freeman v. Oliver M. Elam, Jr. Co. ¹¹ in support of this assertion. These cases are distinguishable on their facts. In each instance the photograph involved was more inflammatory and notably less relevant to the issue before the trial court. In the St. Lukes Hospital case, for example, the photograph was of the body of a three year old boy, showing incisions around the neck and head made during an autopsy. The photograph was offered to show a bruise on the child's cheek, as further evidence of the cause of death (strangulation when the child's head slipped between rails on a hospital bed. The cause of death had already been firmly established. This case and the others cited are not persuasive of the contention urged by appellants.

Appellants contend the trial court erred in admitting in evidence respondent's exhibit F, a report by an expert hired by respondent to examine the brakes on respondent's automobile. The report had been prepared by respondent's counsel in an action by respondent against the garage which had repaired respondent's brakes prior to the accident. The expert who prepared the report was unavailable at the trial of this case. Appellants objected to the report as hearsay, and argue that they could have cast doubt upon the validity of the conclusions in the report, had the author of the report been available for cross examination. Respondent, on the other hand, contends that he was forced to introduce the report into evidence because of insinuations made, upon appellants' cross examination of respondent, regarding the contents of the report. The trial court admitted the report on this reasoning.

Appellants, on cross examination of respondent, engaged in the following exchange relevant to this issue:

'Q Somebody advised you that the left front cylinder was leaking when the brake was applied, and that the brake line was soaked.

'A Uh-hum, yes.

'Q But they didn't advise you of other things that were in the same report, isn't that correct?

'A That's correct.

'Q And...