Schoenrock v. City of Sisseton

• Decision Date: 13 June 1960
• Docket Number: No. 9783,9783
• Citation: 78 S.D. 419,103 N.W.2d 649
• Court: South Dakota Supreme Court
• Parties: Grace SCHOENROCK, Plaintiff and Respondent, v. CITY OF SISSETON, a Municipal Corporation, and H. B. Dickerson, Defendants and Appellants.

Page 649

103 N.W.2d 649

78 S.D. 419

Grace SCHOENROCK, Plaintiff and Respondent, v. CITY OF SISSETON, a Municipal Corporation, and H. B Dickerson, Defendants and Appellants.

No. 9783.

Supreme Court of South Dakota.

June 13, 1960.

Milton Cameron, Sisseton, Benjamin D. Mintener, Pierre, for defendants and appellants.

Wm. J. Holland, Wallace R. Brantseg, Sisseton, for plaintiff and respondent.

ROBERTS, Presiding Judge.

Plaintiff Grace Schoenrock brought this action to recover damages for personal injuries claimed to have resulted from the negligent operation of a street maintainer owned by the city of Sisseton and operated by defendant Dickerson, an employee of the city. The complaint alleges that on July 27, 1956, about 5:45 o'clock in the afternoon, plaintiff was a passenger in an automobile driven by her husband proceeding in an easterly direction on a certain street in the city of Sisseton; that when plaintiff's driver turned his automobile to the left into the north lane of the street and undertook to pass, defendant Dickerson without warning backed the maintainer to the left into the north lane striking the automobile and injuring the plaintiff. Defendants answered denying all allegations of negligence and alleged that the collision was caused by the negligent and unlawful operation of the automobile owned and driven by Arnold V. Schoenrock and that the automobile was operated in violation of a city ordinance providing that police and street departments shall have the right of way on all streets within the city.

The cause came on for trial and at the close of plaintiff's evidence, defendants made the following motion for directed verdict: 'May it please the Court, at this time the defendant, the City of Sisseton and H. B. Dickerson move for a directed verdict for the reason and upon the grounds that the plaintiff has failed to establish negligence on the part of the City of Sisseton or the operator of the blade. Further, that the evidence failed to establish that the injuries resulting to the plaintiff as alleged was a result of the negligence or carelessness on the part of the City of Sisseton or H. B. Dickerson its employee. That having failed to show that the accident resulted in injuries, if any resulted to the plaintiff, were as a result of the carelessness of the defendant or the plaintiff's husband Arnold Schoenrock and not that of the defendant City of Sisseton or H. B. Dickerson.' The trial court denied the motion and defendants submitted their evidence. Defendants did not at the close of all the testimony again move for a directed verdict. The jury returned a verdict for plaintiff in the amount of $7,000. Defendants then made a motion for a judgment notwithstanding the verdict 'upon the grounds that the verdict is excessive and would appear to have been the result of passion, prejudice, and not in accord with the weight of the testimony, as well as excessive.' The court denied this motion and judgment was entered on the verdict.

It is contended that the function of maintaining streets is essentially governmental rather than proprietary and hence a municipal corporation is immune from liability for injuries sustained through its negligence in performing such function. Unless it appears as a matter of law from the allegations of a complaint that the acts complained of were committed in furtherance of a governmental function, the defense of immunity to be availed of must be pleaded. City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135; Foust v. City of Durham, 239 N.C. 306, 79 S.E.2d 519. The issue was neither pleaded nor presented to or passed upon by the trial court. It is the settled rule in this jurisdiction that a question or issue may not be presented for the first time on appeal. Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227, 57 A.L.R.2d 1070.

Defendants contend that the court erred in permitting two medical witnesses to testify to statements made by plaintiff to them relating to the cause and circumstances attending the accident. On direct examination Dr. Brauer was asked the following question and gave the following answer. 'Q. What was that history? A. I usually take a history, and she told me that she was riding in a car which was involved in an accident with a road-grader or road machine. And while she was sitting in the front seat, the impact throwed her forward and threw her head against the dashboard'. Dr. Batt, also an attending physician, was permitted over objection of defendants to testify: 'She (plaintiff) stated that she had been in an auto accident in the automobile of her husband * * *. They were driving behind a road grader when this road grader stopped at a corner. They stopped behind the road grader and began to pass, at which time the road grader in front of them backed into the front of their car. This impact caused the patient to be thrown forward, striking her forehead on the dashboard above the glove compartment of her car, at which time she was rendered unconscious. In the same motion of being thrown forward and striking her forehead, her right shoulder struck the window crank of the right front door of the automobile.'

Counsel for plaintiff contend that the statements were admissible under a well recognized exception to the rule excluding hearsay; that an attending physician may testify as to the history of an injury related to him by his patient for purposes of diagnosis or treatment. Statements made to a physician relating to cause of injury or circumstances concerning the manner in which an accident occurred are not within scope of the exception. See Annotations in 67 A.L.R. 10; 80 A.L.R. 1527 and 130 A.L.R. 977. We are satisfied that defendants were not prejudiced even though the statements were inadmissible. They were cumulative of other evidence as to the cause of the injury and the circumstances attending the accident.

Defendants called W. E. Prior to testify as to the reputation of another witness for truth and veracity. The witness testified that the reputation of Nathan White was 'bad'. The court struck the answer on the ground that the testimony did not relate to credibility under oath. Counsel for defendants then proceeded to examine the witness as follows: 'Q. I have inquired whether you are acquainted with Nathan White. For how many years have you known Mr. White? A. Oh, I would say four years. Q. Are you acquainted with his...