Sumner v. Amacher

• Decision Date: 08 March 1968
• Docket Number: No. 11319,11319
• Citation: 150 Mont. 544,437 P.2d 630
• Parties: Floyd SUMNER, Individually and as Administrator of the Estate of Belinda Christian Sumner, Deceased, plaintiff and Cross-Defendant and Respondents, v. Albert James AMACHER and Louise R. Rankin, Executrix of the Last Will and Testament of Wellington D. Rankin, Deceased, Defendants and Cross-Claimants and Appellants.
• Court: Montana Supreme Court

Page 630

437 P.2d 630

150 Mont. 544

Floyd SUMNER, Individually and as Administrator of the Estate of Belinda Christian Sumner, Deceased plaintiff and Cross-Defendant and Respondents, v. Albert James AMACHER and Louise R. Rankin, Executrix of the Last Will and Testament of Wellington D. Rankin Deceased, Defendants and Cross-Claimants and Appellants.

No. 11319.

Supreme Court of Montana.

Submitted Jan. 8, 1968.

Decided Feb. 7, 1968.

Rehearing Denied March 8, 1968.

Rankin & Acher, Small & Cummins and Carl Hatch, Louise Rankin Galt and Arthur P. Acher (argued), Robert T. Cummins (argued), Helena, for appellants.

Berger, Anderson & Sinclair, Richard W. Anderson (argued), Billings, Hughes & Bennett and Leon Lysaght, Helena, John V. Potter (argued), White Sulphur Springs, for respondents.

HASWELL, Justice.

This is an appeal from a judgment entered on a jury verdict in the district court of Meagher County Awarding damages of $37,000 to a passenger in an automobile involved in a two-car collision against the driver of the other vehicle and his employer.

In reality, this case consists of two separate actions involving numerous claims, counter-claims and defenses by various parties. All were consolidated for trial. As all claims and counter-claims except the one above-mentioned were denied by jury verdict and judgment, and as all briefs and arguments upon this appeal are directed at this one award, this opinion will treat this case as involving this one claim and award only.

The accident forming the basis of this case occurred in the early afternoon of August 27, 1965, about six miles south of White Sulphur Springs on a straight, essentially level, asphalt public highway designated both as Highway 89 and as Highway No. 12. This highway runs generally in a north-south direction. As one proceeds north along this highway in the general area of the accident scene, there is a solid yellow line in the north-bound lane of traffic designating a 'no passing' zone for north-bound traffic for a distance of 338 feet to a highway bridge over Catlin Creek. In this 'no passing' zone a private road from the Catlin Ranch to the west forms a 'T' junction with the highway. The asphalt portion of the highway at the accident scene is approximately 20 feet wide.

At the time and place where the accident occurred it was a hot summer day, the sun was shining, visibility was unlimited, and the road suface was dry. Defendant Albert James Amacher was driving northerly along the above-mentioned highway in a 1965 Ford pickup owned by his employer, defendant Wellington D. Rankin, and was carrying Gary Meeks, another employee, as a passenger. Defendant Amacher, who was acting in the course and scope of his employment by defendant Rankin, was proceeding to the Catlin Ranch to deliver some commissary items, supplies and equipment which were loaded in the box of the pickup. As he approached the point where he would make a left turn off the highway onto the private road leading to the Catlin Ranch, another vehicle was overtaking him from the rear.

This other vehicle was a 1964 Buick Special driven by Belinda Summer, and carrying her husband, plaintiff Floyd Summer, as a front seat passenger. This Buick was jointly owned by the Sumners who were enroute from their home in Livingston to Great Falls to enable plaintiff Floyd Sumner, whose occupation was the installation of carpet and linoleum, to attend a business meeting to learn new installation methods on heavy grade linoleum and to enable his wife and him to visit her relatives and friends in the Great Falls area. They had stopped on the outskirts of Livingston and purchased hamburgers, had purchased forty cents worth of beer in Wilsall, and had eaten the hamburgers and drunk part of the beer prior to the accident.

The left front end of the Buick struck the rear end of the Ford pickup somewhere on the highway between the begining of the 'no passing' zone and the junction of the private road leading to the Catlin Ranch, resulting in personal injuries to the plaintiff Floyd Sumner.

Beyond these brief facts, the testimony and evidence relating to the accident involved in this appeal are in utter and absolute conflict.

Prior to suit, Belinda Sumner died as a result of injuries received in this accident. After suit was filed, but before trial, defendant Wellington D. Rankin died and his executrix, Louise R. Rankin, was substituted. Trial was had by jury before the Honorable Nat Allen, District Judge. At the conclusion of plaintiff's case in chief, and again at the conclusion of all of the evidence, both defendants separately moved for directed verdicts, which motions were denied. The jury returned a verdict for plaintiff against both defendants in the sum of $37,000 and after judgment was entered thereon, each defendant separately filed a motion for a new trial and a motion to set aside the verdict and judgment. All of these motions likewise were denied. This appeal by both defendants from the judgment and order denying new trial followed.

During the pendency of this appeal, but before final argument, plaintiff moved to dismiss this appeal based upon procedural grounds not involving the merits.

Defendants present three issues for review: (1) the district court erred in denying the motions of the defendants for directed verdicts; (2) the district court erred in denying defendants' motions for a new trial; and (3) the district court erred in refusing to set aside the verdict and judgment. Although these are quite properly stated as the ultimate legal issues to be decided upon this appeal, the fundamental issues controlling the answers to these questions are found in defendants' briefs and oral argument. The basic thrust of defendants' argument is two-fold: (1) that Belinda Sumner's negligence was the sole proximate cause of the accident; and (2) that the negligence of Belinda Sumner is imputable to plaintiff Floyd Sumner and bars any recovery by him. If either contention is answered affirmatively, all three legal issues presented for review must be answered favorably to defendants; if both are answered in the negative, plaintiff must prevail on all three legal issues. Accordingly, this opinion will treat the two underlying contentions of defendants set forth above as the real issues presented for review herein.

As to the first issue, defendants contend that Belinda Sumner's negligence was the sole proximate cause of the accident because (1) she was clearly negligent, (2) Amacher was not negligent, and (3) the accident occurred as the result of her negligence. Without belaboring the point, Belinda Sumner's negligence is clearly established by credible testimony and physical evidence indicating that she was attempting to pass the pickup driven by Amacher at a speed of 65 to 70 Miles an hour in a 'no passing' zone, clearly marked as such, in violation of statute. The jury specifically found her guilty of contributory negligence. in their verdict. Under these circumstances her negligence was neither argued nor arguable.

Defendants further assert that Amacher was not negligence because he complied with the law in all particulars. They contend that Amacher signaled for a left turn off the highway by turning on his blinking leftturn indicator lights at least 150 feet before reachign the Catlin Ranch turn-off; that he applied his brakes actuating his rear brake lights simultaneously with his turn indicator lights; that he had slowed to 20 miles per hour or less at the time of impact; that he was wholly in the northbound lane of traffic and had not crossed the centerline of the highway when he was struck from the rear; that even if he had started his turn he was not turned at a 45 degree angle blocking the passing lane; and in any event he was not negligent in turning as he did because he had a perfect right to do so and complied with the law in all respects.

Plaintiff, on the other hand, argues that the driver of the car in which plaintiff was riding honked her horn and commenced to pass; that suddenly and without warning, Amacher made a left turn without signalling until starting to turn; that this blocked the passing lane; that this made it necessary for the driver of the car in which he was riding to swerve back into the northbound lane; and that in so doing she struck the rear of the Amacher pickup because there was not sufficient time to turn sharply enough to clear it from behind.

At the outset it should be observed that there is a sharp conflict in the evidence as to just how this accident occurred. Without reviewint the conflicting evidence in detail, it is sufficient to say that conflicts exist on the following major points: (1) the point of impact between the two vehicles, both with respect to the centerline of the highway and the location of the turnoff; (2) the angle of impact between the two vehicles; (3) whether Belinda Sumner honked her horn before attempting to pass; and (4) whether Amacher signalled for a left off the highway with his directional signal lights sufficiently in advance of his left turn. On the basis of conflicting evidence on all these points the jury specifically found Amacher guilty of negligence proximately causing the collision. Under such circumstances, our review is confined to determining whether there is substantial credible evidence to suppor this finding by the jury. (Greenup v. Community Transit Co., 145 Mont. 39, 399 P.2d 418; Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917.)

After careful review of the evidence we hold that there is substantial credible evidence that Amacher was negligent, proximately causing the accident, in that he failed to signal for a left turn off the highway sufficiently in advance to make the turn with reasonable safety as required by statute, knowing of the presence of traffic behind him.

Section 32-2167, R.C.M.1967, provides, in material parts, as follows:

'(a) No person shall * * * turn a vehicle to enter a private...