Seppi v. Betty

• Decision Date: 19 May 1978
• Docket Number: No. 12322,12322
• Citation: 579 P.2d 683,99 Idaho 186
• Court: Idaho Supreme Court
• Parties: David SEPPI and Rosa Seppi, husband and wife, Plaintiffs-Respondents, v. Lester R. BETTY and Mountain States Telephone & Telegraph Company, a corporation, Defendants-Appellants.

Page 683

579 P.2d 683

99 Idaho 186

David SEPPI and Rosa Seppi, husband and wife, Plaintiffs-Respondents, v. Lester R. BETTY and Mountain States Telephone & Telegraph Company, a corporation, Defendants-Appellants.

No. 12322.

Supreme Court of Idaho.

May 19, 1978.

Gary T. Dance, of Merrill & Merrill, Chtd., Pocatello, for defendants-appellants.

Don Burnett, of Burnett, Woodland & Hawkes, Pocatello, for plaintiffs-respondents.

BAKES, Justice.

This is a personal injury action arising from an auto-pedestrian accident in Lava Hot Springs, Idaho, in 1974. The jury returned a special verdict finding plaintiff respondent David Seppi, the injured pedestrian, and defendant appellant Lester R. Betty, the driver of the vehicle, equally negligent. The district court subsequently granted the respondents' motion for new trial and the appellants brought this appeal from that order. We affirm.

Appellant Betty, an employee of appellant Mountain States Telephone and Telegraph Company, parked a company van in an offstreet parking lot near the Silver Grill Cafe in Lava Hot Springs and entered the cafe. The entrance to this parking lot crossed a city sidewalk. Upon returning from the cafe, Betty picked up safety cones at the front and rear of the van. After entering the van he checked to the rear using the rear view mirrors. The rear window was partially obscured by cargo. He then backed the van out of the parking lot, across the sidewalk and into the street at 2 or 3 miles per hour. The rear of the van struck 83 year old David Seppi as he was walking on the sidewalk. Betty testified that he did not see Seppi until after the accident and did not realize he had struck him until a bystander shouted. Seppi was aware that the driveway to the parking lot crossed the sidewalk, and just prior to the accident he noticed some vehicles in the parking lot but none which were moving. The van had been parked in the corner of the lot next to the sidewalk. Seppi had to walk past the van just prior to turning the corner and crossing the parking lot entrance where he was struck. He stated that he did not hear the van start or see the van in motion until it struck him. The van knocked Seppi to the ground and dragged him a few feet. Seppi was injured and was hospitalized for seventeen days.

The respondents, David Seppi and his wife, brought this action for special damages for medical expenses and general damages for pain and disability suffered by Mr. Seppi, and general damages for mental anguish and loss of consortium suffered by Mrs. Seppi. The facts were generally not disputed at the trial, although witnesses differed whether Mr. Seppi had suffered a permanent neck injury as a result of the accident. The parties stipulated that the special damages incurred by the respondents were $2,330.40.

Following a trial, the jury returned a special verdict finding respondent Seppi guilty of 50% of the negligence that caused the accident and appellant Betty guilty of the other 50%, and finding the respondents' damages to be $2,330.40. The respondents moved for a judgment n. o. v. or in the alternative a new trial. The district court denied the motion for a judgment n. o. v., but granted the motion for a new trial, stating:

"The issues raised have been of some moment to this Court. This Court has consistently been reluctant, after having submitted factual questions to a jury, to exercise its power of intervention. In this particular case the Court has reviewed its notes as to the facts; has reviewed respective counsel's recitation of their recollection of the facts and the Court has gone over the Instructions it gave the jury several times and has concluded that the Instructions, when read separately, state the law of the case, but it is possible that when read collectively the jury could have been misled as to the effect of any negligence of plaintiff. As reluctant as this Court is to intervene in a jury verdict, I cannot feel that under the facts and the law that the jury was justified in finding plaintiff guilty of 50% negligence and while the Court is, in effect, substituting its discretion for that of the jury, I will not substitute it to the extent of granting a Judgment Notwithstanding the Verdict."

Under our comparative negligence statute, a contributorily negligent plaintiff is not barred from recovering damages from a negligent defendant provided the plaintiff's negligence is "not as great as" the defendant's negligence. Also, the plaintiff's damages, if not barred, are reduced by the percentage of the total negligence attributable to the plaintiff. I.C. §§ 6-801 and -802. ¹ Accordingly, a jury finding that 50% of the negligence was attributable to the plaintiff would preclude any recovery by the plaintiff. The appellants have appealed from the order granting the motion for a new trial, arguing that it constitutes an unwarranted invasion of the province of the jury and an abuse of the trial court's discretion.

I

We have frequently recognized that because of its proximity to the parties and issues the trial court is given broad discretion in ruling on motions for a new trial and that the exercise of that discretion will not be disturbed by this Court on appeal unless it clearly appears to have been manifestly abused. See, e. g., Klundt v. Carothers, 96 Idaho 782, 537 P.2d 62 (1975); Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Dawson v. Olson, 95 Idaho 295, 507 P.2d 804 (1973); Banz v. Jordon Motor Co., 94 Idaho 369, 487 P.2d 1123 (1971); Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Grimm v. Harper, 84 Idaho 220, 370 P.2d 197 (1962); Coast Transport, Inc. v. Stone, 79 Idaho 257, 313 P.2d 1073 (1957); Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021 (1953); Davis v. Rogers, 72 Idaho 33, 236 P.2d 1006 (1951); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); Hall v. Johnson, 70 Idaho 190, 214 P.2d 467 (1950); MacDonald v. Ogan, 61 Idaho 553, 104 P.2d 1106 (1940); Seamons v. Davis, 34 Idaho 393, 201 P. 716 (1921); Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014 (1909). Accord, 11 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2806 (1973); 6A Moore's Federal Practice, para. 59.08(5) (2d ed. 1974); M. Green, Basic Civil Procedure 187 (1972); 58 Am.Jur.2d New Trial § 139 (1971). We recently reaffirmed this rule in Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977), where we stated:

"The trial court is entrusted with a sound judicial discretion to be exercised in granting or refusing to grant a new trial. The exercise of that discretion will not be disturbed on appeal unless it clearly appears to have been manifestly abused. (Citations omitted). . . . The more liberal rule applied to orders granting a new trial recognizes the advantage enjoyed by the trial court in reviewing the case because of the court's active participation in the trial. (Citation omitted)." Id. at 275-276, 561 P.2d at 1308-1309.

In Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539 (1965), we reviewed the basis of the rule:

"When a trial court is of the opinion that a verdict, based on conflicting evidence, or even where there is no conflict, is not in accord with law or justice, he may grant a new trial. (Citation omitted). The reasons for such rule are recognized as being, (1) that the trial court, from seeing and hearing the witness, may have formed such a doubt as to the credibility of the testimony, or entertained such an impression from the surrounding circumstances and atmosphere of the trial, as to conclude that a fair and impartial trial was not had; and (2) that the exercise of such power is not an invasion of the jury's function to decide the facts, for upon granting a new trial the questions of fact will again be submitted to the jury for a decision." Id. at 500, 401 P.2d at 541.

In this case the trial judge, after carefully reviewing the facts presented to the jury and recognizing that he was "in effect, substituting (his) discretion for that of the jury," nevertheless concluded that the jury was not "justified in finding the plaintiff guilty of 50% negligence" and ordered a new trial. The trial court's decision appears to be a careful, restrained and conscientious exercise of the broad discretion entrusted to it in ruling on such matters. We affirm its decision.

The appellants have argued that our decision in Ryals v. Broadbent,98 Idaho 392, 565 P.2d 982 (1977), requires a reversal of the trial court's decision in this case. However, we do not believe that the plurality opinion in Ryals, in which only two members of the Court concurred, is controlling authority in this case. The Ryals plurality opinion suggested that where a jury returns a special verdict on the issues of negligence and proximate cause the trial court's authority to grant a new trial is limited to the narrow standard enunciated in National Produce Distributors v. Grube, 78 Idaho 33, 297 P.2d 284 (1956), and the dissenting opinion in Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969) (Shepard, J., dissenting). We now see no reason why special verdicts should be treated differently than general verdicts, and we reaffirm the rule which this Court first approved as early as Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555 (1896), and as recently as Everton v. Blair, 99 Idaho 14, 576 P.2d 585 (1978), that:

"The trial court is vested with broad discretion in granting a new trial. On appeal, the determination of the trial court will not be overturned absent a manifest abuse of discretion." Id., at 15, 576 P.2d at 586.

The appellants also urge that any new trial should be limited solely to the issue of liability. It is clear that the trial court intended that there be a new trial of both the issues of liability and damages, and we affirm that decision.

II

The respondents have also requested that we direct the trial court to give an explanatory instruction to the jury at the new...