Stoddard v. Nelson

• Decision Date: 07 July 1978
• Docket Number: No. 12536,12536
• Citation: 99 Idaho 293,581 P.2d 339
• Parties: Della A. STODDARD, personal representative of the Estate of Irwin T. Stoddard, Deceased, and Della A. Stoddard and Douglas Stoddard, as sole heirs at law of Irwin T. Stoddard, Deceased, Plaintiffs-Appellants, v. Clyde NELSON and Reva Nelson, Individually and as partners dba Rafe Nelson and Son, Nelson Angus Ranch, and Murl McNabb, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 339

581 P.2d 339

99 Idaho 293

Della A. STODDARD, personal representative of the Estate of Irwin T. Stoddard, Deceased, and Della A. Stoddard and Douglas Stoddard, as sole heirs at law of Irwin T. Stoddard, Deceased, Plaintiffs-Appellants, v. Clyde NELSON and Reva Nelson, Individually and as partners dba Rafe Nelson and Son, Nelson Angus Ranch, and Murl McNabb, Defendants-Respondents.

No. 12536.

Supreme Court of Idaho.

July 7, 1978.

H. William Furchner, of Furchner, Martsch & Baker, Blackfoot, for plaintiffs-appellants.

Dennis M. Olsen, of Petersen, Moss & Olsen, Idaho Falls, for defendants-respondents.

McFADDEN, Justice.

This is a wrongful death action arising from a head-on collision of an automobile and truck tractor with full trailer near Salmon, Idaho. ¹ The jury, by special verdict, found that neither the driver of the truck, the driver of the automobile, nor the owners of the truck were guilty of negligence that proximately caused the accident. We affirm the judgment of the district court and its order denying appellants' motions to set aside the verdict and for a new trial.

Plaintiffs-appellants Della Stoddard and Douglas Stoddard are the surviving widow and son of I. T. Stoddard, the driver of the automobile who was killed in the collision. They seek to recover damages for the alleged negligence of defendants-respondents Clyde and Reva Nelson, owners of the truck, and Murl McNabb, driver of the truck. Appellants alleged that respondents were negligent in operating the truck at night at an excessive rate of speed and with only one operating headlamp. ² Although the exact cause of the accident is unknown, appellants alleged that I. T. Stoddard was confused and blinded by the truck's single headlamp and attempted to stop the Stoddard vehicle, causing it to skid into the oncoming truck.

Appellants allege on appeal that the jury found the accident was unavoidable when it found by special verdict that neither the deceased, respondent McNabb nor respondents Nelson were guilty of negligence that was the proximate cause of the accident. Appellants argue that there is no competent evidence to support a finding of unavoidable accident; rather, the facts presented require finding that respondents' negligence was a contributing cause, if not the sole cause, of the collision. They therefore ask that the jury verdict be set aside and a new trial ordered. On appeal from a judgment entered on a jury verdict, this court will not set aside the verdict if it is supported by substantial and competent evidence. Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Skaggs Drug Centers, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965). The first issue on appeal, therefore, is whether there is substantial and competent evidence supporting the jury's finding that neither the deceased nor respondents were guilty of negligence proximately causing the accident.

The jury's answers to the questions submitted in the special verdict are susceptible of either of two interpretations: (1) no one was negligent, i. e. the accident was unavoidable; or (2) although someone was negligent, that negligence was not the proximate cause of the accident. There is substantial evidence in this case to support either interpretation. While it is error in this jurisdiction for the trial court to give an instruction on unavoidable accidents because such an instruction confuses, misleads, and improperly suggests to the jury a separate defense for the defendant, Schaub v. Linehan, 92 Idaho 332, 442 P.2d 742 (1968), in the absence of such an instruction, it is not error for the jury to find that an accident occurred without negligence. Stobie v. Potlatch Forests, Inc., 95 Idaho 666, 518 P.2d 1 (1973). There was evidence from which the jury reasonably could have determined that the collision resulted from a mechanical malfunction of the automobile. Although violation of a safety statute such as I.C. § 49-804, ³ may establish negligence per se, McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953), it is necessary that the negligence be the proximate cause of the injury sustained. Ebert v. Newton, 97 Idaho 418, 546 P.2d 64 (1976); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966); Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171 (1952). The jury reasonably could have found that although respondents were negligent in operating the truck with only one headlight, this was not the proximate cause of the collision, e. g. the accident was caused because the deceased temporarily dozed while driving. While the exact cause of the collision was not established, there is substantial and competent evidence from which the jury could have accepted either theory of the case. The verdict must, therefore, be sustained on appeal.

Appellants argue, however, that a new trial should have been ordered because of errors committed by the district court at trial. First, appellants maintain that the district court erred in failing to excuse George Nichols as a prospective juror, who was challenged for cause. Nichols was well acquainted with respondents, had worked with respondent McNabb, had visited the scene of the accident and had examined police accident reports concerning the collision. Nichols, nevertheless, stated that he would render an impartial verdict based on the facts presented at trial. After the district court refused to excuse Nichols for cause, he was excused on appellants' peremptory challenge. Challenges to prospective jurors are determined by the trial court. I.R.C.P. 47(h). Ordinarily, a juror who has formed an opinion of the case and is a personal friend of one of the parties should be excused when challenged for cause, I.R.C.P. 47(h), and a litigant should not be forced to exercise a peremptory challenge to exclude the prospective juror when it clearly appears that he is disqualified for cause. State v. Dickens, 68 Idaho 173, 191 P.2d 364 (1948). However, only prejudicial errors affecting substantial rights of the parties can be grounds for granting a new trial or setting aside a jury verdict:

No error . . . or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is grounds for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

I.R.C.P. 61. Assuming that the court erred in failing to excuse Nichols for cause, the question present is whether such error was prejudicial under these facts. This issue was addressed by this court in State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971), where the court stated in appropriate language:

Appellant has further assigned error to the trial court's not excusing juror Nelson for cause. Juror Nelson was excused on the appellant's first pre-emptory [sic] challenge and did not participate in the trial. Thus the error, if any, claimed by the appellant in not excusing Nelson for cause, would have to be shown by the fact that this resulted in one or more of the Other jurors deliberating in the case who were biased. Appellants failed to establish this. On the contrary, the record demonstrates that fair and impartial jurors were available and selected to participate in the trial of the charge against appellant.

Id. at 319, 486 P.2d at 1032. There is no contention nor evidence in the present case that the other jurors selected were incompetent or biased. Therefore error, if any, in denying appellants' challenge for cause was not prejudicial.

Secondly, appellants maintain that the court erred in allowing respondents Nelson and respondent McNabb four peremptory challenges Each, while appellants were only allowed a total of four peremptory challenges. However, the record does not show that appellants raised this objection at trial. The number of peremptory challenges is specified by I.R.C.P. 47(j):

Peremptory challenges Number. After all challenges for cause have been ruled upon by the court, each party shall have four (4) peremptory challenges which shall be exercised in accordance with this rule. In the event there are coparties as plaintiffs, defendants or otherwise, the court shall determine the degree of conflict of interest, if any, between or among the coparties And shall in its discretion allocate the full number of peremptory challenges authorized by this rule to each of the coparties . . . . (Emphasis added.)

We find no abuse of discretion in allowing respondents four peremptory challenges each. Any such error would nevertheless have been waived by appellants' failure to object at trial. Suchan v. Henry's Farms Sales, Inc., 97 Idaho 78, 540 P.2d 263 (1975); Finck v. Hoskins, 94 Idaho 524, 492 P.2d 936 (1972).

Thirdly, appellants assign error to the admission of expert opinion testimony given by Merl J. Allen, a professor of optometry at Indiana University. Dr. Allen was qualified as an...