Shaddy v. Daley

• Decision Date: 05 February 1938
• Docket Number: 6443
• Citation: 58 Idaho 536,76 P.2d 279
• Parties: R. E. SHADDY and CORA SHADDY, Husband and Wife, Respondents, v. LON DALEY, Appellant
• Court: Idaho Supreme Court

76 P.2d 279

58 Idaho 536

R. E. SHADDY and CORA SHADDY, Husband and Wife, Respondents, v. LON DALEY, Appellant

No. 6443

Supreme Court of Idaho

February 5, 1938

AUTOMOBILES-DEATH RESULTING FROM COLLISION-DAMAGES, AMOUNT OF-TRIAL-VOIR DIRE EXAMINATION-QUESTIONS AS TO CONNECTION WITH INSURANCE COMPANY-IMPROPER REMARKS OF COUNSEL-OBJECTIONS, WHEN MADE-FAILURE TO STOP AT SCENE OF ACCIDENT-INSTRUCTIONS.

1. In action for death resulting from automobile collision, asking prospective juror on his voir dire examination whether he was or had been employed by an insurance company insuring automobiles and trucks against accidents, in the absence of evidence showing that question was not propounded in good faith in effort to ascertain bias of juror, was not error. (I. C. A., sec. 5-310.)

2. In action for death resulting from automobile collision statement of counsel in opening argument not to consider statement of opposing counsel that defendant could not pay a judgment and that counsel could collect a judgment if jury gave plaintiffs one without showing that any objection was made to statement at the time did not present question which could be considered on appeal. (I. C. A., sec. 5-310.)

3. When, during trial, counsel for one of the parties is guilty of conduct which counsel for the other party believes is prejudicial to his client's rights, it is the duty of the latter to make objection thereto and to ask that the jury be instructed to disregard it, or to move for an order declaring a mistrial. If he fails to do this the incident presents nothing for review on appeal.

4 $5,468.95 and costs for death of 18 year old son who died of injuries received in automobile collision and who was shown to have been a dutiful, and obedient and industrious boy, who contributed considerable part of his earnings toward support of his parents whenever he could obtain work, held not excessive. (I. C. A., secs. 5-310, 5-311.)

5. The refusal to state the law in language in which it was expressed in requested instructions, when correctly stated in other appropriate language in charge of jury, was not error.

6. Evidence of the failure of the driver of a motor vehicle to stop at scene of an accident in which he is involved and to report accident to the authorities is admissible in action for death arising out of an automobile collision as a circumstance tending to show consciousness on driver's part of his responsibility for the accident. (I. C. A., secs 48-528, 48-529.)

7. In action for death resulting from automobile collision, where evidence whether defendant failed to stop and failed to report accident to authorities as required by law was conflicting, requested instruction that his failure to stop and to report accident was immaterial was properly refused since evidence of defendant's actions was admissible as tending to show consciousness on his part of his responsibility for the accident. (I. C. A., secs. 48-528, 48-529.)

8. In action for death resulting from automobile collision, whether defendant stopped after accident as required by law was for the jury on conflicting evidence. (I. C. A., secs. 48-528, 48-529.)

9. In action for death resulting from automobile collision, evidence that automobile in which deceased was riding was sideswiped by defendant's truck, which allegedly was being driven without proper clearance lights and on the wrong side of the road, was sufficient to sustain verdict for plaintiffs. (I. C. A., secs. 5-310, 5-311.)

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Adam B. Barclay, Judge.

Action by respondents to recover damages for the death of their minor son, alleged by them to have been caused by negligence of appellant. Judgment for plaintiffs affirmed.

Affirmed. Costs awarded to respondents.

Harry Benoit, for Appellant.

It is reversible error to inject in an automobile accident case a suggestion that an insurance company, who is not a party thereto, will have to pay any verdict which might be rendered and such error may be created by counsel for the plaintiffs suggesting insurance in his remarks to the jury.

(Vol. 9, Blashfield's Cyc. of Automobile Law, sec. 6291; Crossler v. Safeway Stores, Inc., 51 Idaho 413, 6 P.2d 151; D. & H. Truck Line v. Lavallee, (Tex. Civ. App.) 7 S.W.2d 661.)

Insufficiency of the evidence and the rendering of a verdict through prejudice, bias or passion should be considered when argument of counsel to the jury attempts to incite the passion or prejudice of the jury in favor of the plaintiff. (Gold-stone v. Rustemeyer, 21 Idaho 703, 123 P. 635.)

Rayborn & Rayborn, for Respondents.

All the instructions given by the court should be considered together, and when so considered, fairly state the law of the case. (Reinhold v. Spencer, 53 Idaho 688, 26 P.2d 796; Burns v. Getty, 53 Idaho 347, 24 P.2d 31.)

Questions asked juror on voir dire examination as to employment by insurance companies insuring trucks or automobiles is not improper. (Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72; Arnold v. California Portland Cement Co., 41 Cal.App. 420, 183 P. 171; Wilson v. St. Joe Boom Co., Ltd., 34 Idaho 253, 200 P. 884.)

MORGAN, J. Holden, C. J., Ailshie and Givens, JJ., concur. Budge, J., concurs in the conclusion reached.

OPINION

MORGAN, J.

About 2 o'clock in the morning of April 19, 1936, Robert Shaddy, respondents' son, eighteen years old, was driving a coupe on the highway, in a northerly direction, through Hagerman valley. Two young men of about his age were riding in the seat with him. They were met by appellant and another man in an auto truck, which appellant was driving. The meeting resulted in a collision between the coupe and truck. The evidence as to who was to blame for the collision is very conflicting. Testimony produced on behalf of respondents was to the effect that the truck, the body of which was more than 80 inches wide, was proceeding without clearance lights (a violation of I. C. A., sec. 48-545-e) and that it was being driven in the middle of the highway instead of on its driver's right hand side thereof (as required by I. C. A., sec. 48-509). Appellant and the man who was with him in the truck testified it was equipped with clearance lights which were burning; that the coupe approached the point of collision at a high rate of speed and was weaving back and forth across the road; that appellant drove the truck to his right hand side of the road as far as he could without going into the ditch; reduced the speed to between twenty and twenty-five miles an hour and that the coupe was so driven as to "side swipe" the truck. The collision resulted in an injury to respondents' son from which he died. This action was commenced to recover damages for his death. The trial resulted in a verdict and judgment for plaintiffs in the sum of $ 5,468.95 and costs. Defendant moved for a new trial, which was denied. He has appealed from the judgment and from the order denying a new trial.

Appellant complains of the conduct of counsel for respondents in propounding the following question to a prospective juror on his voir dire examination:

"Are you or have you been employed by an insurance company insuring automobiles and trucks against accidents?"

The theory on which this assignment is based is that the question had a tendency to inform the members of the jury that appellant was protected by insurance against loss in the event a judgment for damages, because of the accident, should be secured against him. If respondents' counsel was not in good faith in propounding the question to the prospective juror, in an effort to ascertain whether or not he was, or had been, engaged in employment which would have a tendency to bias him in his consideration of the case, it is not apparent from the record. He was within his rights in propounding the question. (Wilson v. St. Joe Boom Co., Ltd., 34 Idaho 253, 200 P. 884; Cochran v. Gritman,34 Idaho 654, 203 P. 289; Bressan v. Herrick, 35 Idaho 217, 205 P. 555; Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72.)

On the same theory, fault is found with a statement made by respondents' counsel in his opening argument to the jury, as follows:

"Now, gentlemen, don't let Mr. Benoit say to you that if you gave a judgment to the plaintiffs against Daley that Daley couldn't pay that judgment. Leave it to Captain Porter and myself to collect the judgment if you give us one."

The record does not disclose what objection, if any, was made to that statement by respondents' counsel, nor what ruling if any, was made on that objection. If, during the course of a trial, counsel for one of the parties litigant is guilty of conduct which counsel for the other party believes is prejudicial to his client's rights, it is the duty of the latter to make objection...