Schmidt v. Royer

• Citation: 1998 SD 5,574 N.W.2d 618
• Decision Date: 14 January 1998
• Docket Number: No. 19949,19949
• Parties: Mary SCHMIDT, Individually and as Personal Representative of the Estate of Clifford Schmidt, Deceased, and Rosen'S Diversified, Inc., Plaintiffs and Appellants, v. Merle Douglas ROYER, Defendant and Appellee.
• Court: Supreme Court of South Dakota

Page 618

574 N.W.2d 618

1998 SD 5

Mary SCHMIDT, Individually and as Personal Representative of the Estate of Clifford Schmidt, Deceased, and Rosen'S Diversified, Inc., Plaintiffs and Appellants, v. Merle Douglas ROYER, Defendant and Appellee.

No. 19949.

Supreme Court of South Dakota.

Argued Oct. 22, 1997.

Decided Jan. 14, 1998.

Michael L. Wagner of Wheeler Wolf Law Firm, Bismarck, ND, Thomas M. Frankman of Davenport, Evans, Hurwitz & Smith, Sioux Falls, and Jeff Rotering, Hettinger, ND, for plaintiffs and appellants.

Donald R. Shultz, Steven J. Oberg of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee.

SABERS, Justice.

¶1 Wife of man killed in motor vehicle accident appeals the denial of her motions for new trial and judgment notwithstanding the verdict after jury found for defendant in wrongful death action. She claims the trial court erred by refusing to allow (1) cross-examination pertaining to statutory minimum braking requirements, (2) a jury instruction thereon, and (3) a jury instruction on the "left-turn" law. She also claims that defendant's negligence is more than slight and that his counterclaim should be dismissed as a matter of law. Defendant argues this appeal should be dismissed for lack of jurisdiction, arguing that the motion for new trial was not timely ruled upon. We hold the appeal was timely and reverse and remand for a new trial on (1).

FACTS

¶2 On August 20, 1991, Clifford Schmidt (Clifford) was driving a one-ton truck east of Sturgis on Highway 34. On that date, the two-lane highway had a signed speed limit of 55 m.p.h. Merle Royer was traveling behind Clifford in the same eastbound lane, driving a 1973 Peterbilt truck pulling a loaded 42-foot oil tanker and a 25-foot pup trailer. Royer's vehicle measured a total of 81 feet and weighed approximately 112,000 pounds.

¶3 Royer testified that after following Clifford for about four and a half miles, he noticed him pull onto the right, or south, shoulder of the road. Clifford then pulled even further off the road onto a gravel turnout, which formed an approach for a rural mailbox. Assuming Clifford intended to stop, Royer pulled into the westbound lane in order to pass with ample room. According to Royer, Clifford turned left from the shoulder of the road; Royer's vehicle struck Clifford's truck at the intersection of a gravel road on the north side of the highway. Clifford was killed instantly.

¶4 Clifford's wife (Schmidt) sued Royer, claiming he was negligent in causing the accident which killed her husband. Clifford's employer also sued for the damage done to its truck. Royer filed a counterclaim for his damages, contending that Clifford was the negligent driver.

¶5 The case proceeded to jury trial, where each side employed an accident reconstruction expert to testify. Schmidt's expert, Floyd Denman Lee (Lee), formed an opinion on Royer's speed by assuming that his vehicle was in compliance with minimum "braking force" requirements provided in state and federal statutes and regulations. Lee estimated that Royer was traveling at approximately 73 m.p.h. when he applied his brakes. He concluded that the accident was caused by "excessive speed on the part of the semi."

¶6 Royer's expert, John Daily (Daily), testified that Royer was traveling at around 58 m.p.h. When Daily testified that he was basing his opinion on a braking force percentage different than that provided by law, Schmidt attempted to cross-examine him with the statutes and regulations. She asked the trial court to take judicial notice of the statutes; upon Royer's objection, the trial court refused and also prevented Schmidt from using the statutes for cross-examination.

¶7 Schmidt argues the significance of the statutes, and the corresponding speed determination, is that Royer's excessive speed must have caused the accident. Her expert testified that if Royer was traveling at a reduced speed, Clifford, traveling at approximately 10-15 m.p.h., would have cleared the road before Royer reached the site of the accident. Therefore, she argues, Royer's negligence was more than slight and his counterclaim should be dismissed as a matter of law. Royer, on the other hand, claims the trial court properly excluded the statutes and regulations because their introduction was merely a ploy to interject a new theory of negligence into the case (i.e., bad brakes).

¶8 The trial court rejected Schmidt's jury instruction pertaining to these statutes, as well as her proposed instruction on the left-turn law. The jury found for Royer, awarding $48,000 in damages. Schmidt appeals.

STANDARD OF REVIEW

¶9 Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this court will not disturb the trial court's decision absent a clear showing of abuse of discretion. Tunender v. Minnaert, 1997 SD 62, p 9, 563 N.W.2d 849, 851 (citation omitted). Likewise, evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, p 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). Under this standard, "not only must error be demonstrated, but it must also be shown to be prejudicial error." State ex rel. Dep't of Transp. v. Spiry, 1996 SD 14, p 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Goodroad, 1997 SD 46 at p 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)).

¶10 Questions of law are reviewed de novo with no deference given to the trial court. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771. "Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial." Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, p 32, 557 N.W.2d 748, 758 (citation omitted).

¶11 1. WHETHER THE APPEAL WAS TIMELY.

¶12 A party seeking a new trial must bring a motion in accordance with SDCL 15-6-59(b), which provides:

The motion for a new trial stating the grounds thereof shall be served and filed not later than ten days after the notice of entry of the judgment.

The court shall make and file the order granting or denying such new trial within twenty days after the service and filing of such motion, unless for good cause shown, the court files an order within said twenty days extending the time for entering such order. If a motion for new trial has not been determined by the court and no order has been entered by the court extending the time for such ruling within twenty days from the date of service and filing of such motion, it shall be deemed denied.

Notice of entry of judgment was filed September 13, 1996. It is undisputed that Schmidt timely filed her motion for new trial on September 25, 1996. ¹ The twenty-day requirement set out in SDCL 15-6-59(b) began to run on September 26, 1996, the first day after the motion was both served and filed, ² and in the absence of an order extending the time for the court's ruling on her motion, the last date the court could have ruled on the motion was October 15, 1996. Since the court did not file its denial of the motion for new trial or judgment notwithstanding the verdict until November 18, 1996, we must determine whether the trial court retained jurisdiction by extending the time to make that ruling.

¶13 Whether the ruling was timely determines whether the appeal was timely. At the time the appeal was filed, SDCL 15-26A-6 (Supp.1996) provided in part:

An appeal from the judgment must be taken within sixty days after the judgment shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.

...

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 ... and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.

If the trial court timely denied the motion on November 18, 1996, then Schmidt's January 17, 1997 notice of appeal was timely filed within the statutory sixty days. However, if the trial court lost jurisdiction to rule on the motion by not "extending the time for such ruling" (SDCL 15-6-59(b)), the sixty days began to run from October 15, 1996. In the latter instance, the last day Schmidt could have timely filed her notice of appeal was December 16, 1996 and this appeal would be dismissed for lack of jurisdiction. See, e.g., State v. Waters, 472 N.W.2d 524 (S.D.1991) (dismissing for lack of subject matter jurisdiction due to State's failure to timely file notice of appeal).

¶14 On September 23, 1996, Schmidt's attorney sent a letter to the trial judge with copies to, among others, Royer's counsel, stating:

I filed a motion for a new trial along with an alternative motion for judgment n.o.v. with regard to the above-entitled action. In looking at 15-6-59(b) and (c), as well as Rosenberg v. Mosher, 331 N.W.2d 79 (S.D.1983), it appears the court is to set a hearing on the matter. I contacted the clerk's office for a hearing date and the earliest you were available was November 8, 1996 at 11:30 a.m. I reserved that date but will not send out notice of the hearing since it appears that under 15-6-59(c) you are to fix the time and date of the hearing. If you wish for me to notice...