Scherling v. Kilgore

• Decision Date: 07 September 1979
• Docket Number: No. 5088,5088
• Citation: 599 P.2d 1352
• Parties: Laura M. Cano SCHERLING, Individually and as personal representative of Louis F. Herrera, Deceased, Donna M. Herrera, Deceased, Gregory Cano, Deceased, and as next friend of Amy Marie Cano, Roseann L. Herrera, Louis E. Herrera, minors, and Leonard K. Herrera, Appellants (Plaintiffs), v. Charles Clinton KILGORE and Charles Martin Kilgore, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1352

599 P.2d 1352

Laura M. Cano SCHERLING, Individually and as personal representative of Louis F. Herrera, Deceased, Donna M. Herrera, Deceased, Gregory Cano, Deceased, and as next friend of Amy Marie Cano, Roseann L. Herrera, Louis E. Herrera, minors, and Leonard K. Herrera, Appellants (Plaintiffs), v. Charles Clinton KILGORE and Charles Martin Kilgore, Appellees (Defendants).

No. 5088.

Supreme Court of Wyoming.

Sept. 7, 1979.

Greg L. Goddard, Buffalo (argued), and Roger D. Bush, Dallas, Tex., for appellants (plaintiffs).

Terry W. Mackey, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellees (defendants).

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

This appeal has as its central issue a question concerning a party's right to jury trial under Rules 38 and 39, W.R.C.P., where demand for jury is untimely made. The district court denied plaintiffs'-appellants' motion for jury trial which was made approximately one year and 75 days after the service of the last pleading. After trial to the court, the district judge made findings of fact and conclusions of law and entered judgment in favor of the defendants-appellees. Several questions are also raised concerning the sufficiency of the evidence to sustain the findings of the trial court. We will affirm.

The original complaint was filed by the plaintiffs-appellants on June 25, 1975, seeking damages arising out of a tragic automobile collision that occurred on August 17, 1974, six miles south of Torrington, Wyoming. The defendants-appellees named in the complaint were Charles Martin Kilgore (Dr. Kilgore) and his son Charles Clinton Kilgore (Charles). According to the complaint, Charles was allegedly driving a 1966 pickup owned by and entrusted to him for use by Dr. Kilgore. The pertinent findings of fact made by the trial court were:

" * * *

"10. Between 5:05 and 5:35 P.M. on August 17, 1974, the 1970 Rambler and the 1966 GMC pickup collided in the southbound lane of U.S. Highway 85 killing Louis F. Herrera, Donna M. Herrera and Gregory Cano, and injuring Roseann L. Herrera and Amy Cano, occupants of the 1970 Rambler; and killing Grant Edward Clark and Bruce Allen Stovall, and injuring Charles Clinton Kilgore, occupants of the 1966 GMC pickup.

"11. That prior to the time of the collision the occupants of the 1966 GMC pickup had consumed alcoholic beverages and shortly after the collision blood samples were taken and the blood alcohol content of each of the occupants of the GMC pickup were determined to be:

Charles Clinton Kilgore, 0.19%

Grant Edward Clark, 0.11%

Bruce Allen Stovall, 0.09%

"12. At the time of the collision Louis F. Herrera was operating the 1970 Rambler in a lawful manner.

"13. At a point south of the collision, just north of the railroad tracks near Silvertip at the Yoder intersection of Highway 85, around 5:00 o'clock P.M., witnesses observed the 1966 GMC pickup proceeding in a northerly direction on Highway 85 occupied by three young men. The passenger in the middle of the cab of the pickup truck was identified by said witnesses as being Charles Clinton Kilgore.

"14. That prior to the collision the defendant, Charles Clinton Kilgore, and his companions Bruce Allen Stovall and Grant Edward Clark came to the Yoder bar at approximately 4:30 P.M. and were served beer by Yvonne Hirst and her husband, who saw them leave shortly after 5:00 P.M. Mrs. Hirst testified at trial that the defendant entered the GMC pickup truck at the driver's side; however, in an earlier statement the same witness identified the defendant as dark haired and wearing a dark red plaid long-sleeved shirt with bib overalls. The defendant is fair-haired and other witnesses testified at trial that defendant was wearing a grey tee shirt.

"15. That Twila Splinter of Yoder, Wyoming, testified that the middle passenger of the GMC pickup had blond hair when the pickup passed her.

"16. On or about December 1, 1973, Charles Clinton Kilgore had been convicted of driving while under the influence of intoxicants.

"17. The defendant, Charles Martin Kilgore, was not aware of such conviction at the time he permitted his son, defendant Charles Clinton Kilgore, to use the vehicle prior to the collision.

"18. The defendant, Charles Martin Kilgore, was not negligent in entrusting the 1966 GMC pickup to Charles Clinton Kilgore.

"19. That just prior to the collision the GMC pickup was operated on the wrong side of the road.

" * * *"

Based upon these facts and the supporting evidence, the district court concluded in pertinent part as a matter of law that:

"1. Charles Martin Kilgore was the owner of a 1966 GMC pickup involved in a collision with a 1970 Rambler on August 17, 1974, approximately six and one half miles south of Torrington, Wyoming, in Goshen County.

"2. The 1966 GMC pickup was occupied by Charles Clinton Kilgore, Grant Edward Clark and Bruce Allen Stoval (sic) at the time of the collision.

"3. The 1970 Rambler was occupied by Louis F. Herrera, Donna M. Herrera, Roseann L. Herrera, Amy Cano and Gregory Cano at the time of the collision.

"4. That prior to and at the time of the collision, Louis F. Herrera was operating the 1970 Rambler in a lawful and non-negligent manner.

"5. At the time of the collision and just prior thereto the 1966 GMC pickup was operated in a negligent manner.

"6. The negligence of the driver of the 1966 GMC pickup was the proximate cause of the collision which collision occurred as a result of negligence and such negligence was the cause of the injuries and damages sustained by the plaintiffs. The driver of the 1966 GMC pickup was not identified by the evidence.

"7. Charles Martin Kilgore did not negligently entrust the 1966 GMC pickup to Charles Clinton Kilgore.

"9. The plaintiffs are not entitled to punitive damages against the named defendants or either of them, there being insufficient evidence to show gross negligence, recklessness and wilful and wanton disregard of the consequences and safety of others.

" * * * "

After the appellants had filed their original twelve-page complaint, the parties stipulated that appellees had until July 30, 1975, to answer the complaint. On July 30, 1975, appellees filed a motion to dismiss. On September 7, 1976, a decision letter denying the motion to dismiss was filed, followed by an order to that effect entered September 27, 1976.

Appellees' answers were filed on September 10, 1976, (Dr. Kilgore) and September 22, 1976, (Charles). A pretrial conference was set for December 8, 1977. Appellants submitted interrogatories to appellees in late November, 1977. ¹

On December 5, 1977, appellants submitted a jury demand. Appellees moved to strike their demand. Appellants submitted another motion asking for jury trial pursuant to Rule 39(a), W.R.C.P. on December 8, 1977. At the pretrial conference, the district court denied the request for jury trial. The case was set for trial and heard on May 30, 1978, by the court sitting without a jury.

The appellant raises as issues:

(1) The trial court erred in denying appellants' motion for jury trial because it was timely in view of certain amended pleadings of both appellants and appellees, the case at bar was consolidated with two other cases for trial, the motion was unopposed and the trial court did not consider or rule on the motion.

(2) The district court abused its discretion in not granting the motion for jury trial pursuant to Rule 39(b), W.R.C.P. because of the complexities of the case and it was well-suited for trial by jury. Coupled with this was a failure by the court reporter to record the proceedings regarding denial of the motion.

(3) The court applied an erroneous legal test to the appellants' theory of negligent entrustment.

(4) The court's findings with regard to certain factual matters were contrary to the great weight of evidence.

(5) There is no evidence to support certain factual findings and the judgment of the court.

Appellants' assertion that the district court erred in denying their motion for a jury trial is grounded in a belief that even if the failure to make a proper jury demand had effected a waiver of the right to trial by jury, appellee Dr. Kilgore's amendment of his pleadings at the pretrial conference and the consolidation of two other cases arising out of the same incident with that of the appellants, operated to revive the right to demand a trial by jury. While in theory appellant is at least partly correct in his discussion of the governing rules of procedure and case law, the record in the trial court simply does not support their application. Rule 38, W.R.C.P., governs the analysis of this case. Rule 38(a) states:

"(a) * * * (I)ssues of fact arising in actions for the recovery of money only * * * shall be tried by a jury unless a jury trial be waived, * * * ."

Rule 38(b) provides:

"(b) Demand

"(1) By Whom. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and Not later than 10 days after service of the last pleading directed to such issue. * * * " (Emphasis added.)

And, most important to the case at bar, Rule 38(d) declares:

"(d) Waiver. The Failure of a party To serve a demand as required by this rule and to file it as required by Rule 5(d) Constitutes a waiver by him of trial by jury. * * * " (Emphasis added.)

As we view this record the answers of the two appellees were filed on September 10, 1976 and September 22, 1976. The demand for jury trial was not made until December 5, 1977, and was supplemented with a second related motion on December 8, 1977. These demands were clearly untimely, even though the trial judge granted, at the pretrial conference, appellees' motion to amend their pleadings by the addition of several defenses. However, no amendments were actually made, nor does it appear that the case was defended...