Templar v. Tongate, 2574

• Decision Date: 31 March 1953
• Docket Number: No. 2574,2574
• Citation: 71 Wyo. 148,255 P.2d 223
• Parties: TEMPLAR, v. TONGATE.
• Court: Wyoming Supreme Court

Page 223

255 P.2d 223

71 Wyo. 148

TEMPLAR, v. TONGATE.

No. 2574.

Supreme Court of Wyoming.

March 31, 1953.

Edward E. Murane and R. R. Bostwick, Casper, for appellant.

William J. Wehrli and C. M. Crowell, Casper, for respondent.

BLUME, Chief, Justice.

This was an action brought against defendant by the administrator of the estate of Keith Edward Templar, deceased, for damages on account of the death of deceased by reason of a collision of the Mercury car of defendant and the Ford car of deceased. The jury returned a verdict in favor of the defendant and the plaintiff has appealed to this court.

Plaintiff alleged in his petition that he is the duly appointed administrator of the deceased; that the deceased died in Natrona County, Wyoming, on August 6, 1950, as a result of injuries received in a collision which occurred in Natrona County on July 31, 1950, and that the plaintiff herein, Donald Keith Templar, a son of the deceased, and Ruby B. Templar, his surviving spouse are the only heirs at law of the deceased; that on July 31, 1950, the defendant, James Tongate, was the owner of a Mercury sedan; that about seven o'clock a. m. on said date, the defendant was driving his said car in an easterly direction on highway U.S. No. 20, west of Casper, coming from Shoshoni, Wyoming, in a negligent and careless manner without having his car under proper control and without keeping a proper and attentive lookout on the highway; that the deceased was driving a Ford car also in an easterly direction and the defendant by reason of his negligence in the operation of his vehicle collided with the deceased, inflicting injury on the deceased which resulted in his death. Plaintiff claimed damages in the sum of $50,000 together with doctor bills, hospital bills, ambulance service, nurses' bills, and funeral expense in the sum of $1,408.64. Defendant filed an answer. In his first defense he denied any negligence on his part. In his second defense, he alleged that deceased was guilty of contributory negligence. In a third defense he alleged that the sole heirs at law of the decedent are Ruby B. Templar and Donald Keith Templar, both of age; that on August 10, 1950, for a valuable consideration they released the defendant from all claims and liability; that as a portion of the consideration there was paid to Ruby B. Templar and Donald K. Templar the sum of $1,500 and that the total consideration paid for the release was the sum of $2,922.64. In the amended reply, plaintiff denied any affirmative allegation on the part of the defendant including the allegation of the third defense, as to the execution of the release, and as a further reply he alleged in substance that the release was obtained from Ruby B. Templar and Donald Keith Templar by duress, fraud and misrepresentation, and also that in view of the fact that § 3-404, W.C.S.1945, provides that every action for death shall be brought by the personal representative of the deceased, the release obtained from the heirs was invalid. To this further defense, the defendant demurred on the grounds that the fraud, duress and misrepresentation alleged could not be made in law by the plaintiff, the administrator of the estate, and further that the sole heirs of the deceased could make a valid release. The court overruled the demurrer in its entirety. An exception was duly taken.

1. In the opening statement to the jury, counsel for defendant stated that, subject to the court's ruling, the evidence would show a release of the claim made by plaintiff. Counsel for the plaintiff thereupon moved that in view of that statement the jury be discharged. The motion was overruled and this is assigned as error.

We may admit for the purpose of this case that orderly procedure makes it advisable that, when the trial court has definitely settled a point of law by a ruling on a demurrer, the party against whom the ruling has been made should not, ordinarily, but with some exceptions, persist in raising the same point again in the trial of the case, although the ruling, of course, may be subsequently questioned in the appellate court. See City of Casper v. Simpson, Wyo., 247 P.2d 154, 71 C.J.S., Pleading, § 268, p. 557. The effect of a ruling on a demurrer is considered in 49 C.J. 451, § 559, and 71 C.J.S., Pleading, 266, p. 555 et seq.; see also 5 C.J.S., Appeal and Error, § 1495, p. 152, and full discussion by Justice Potter in Grover Irr. & Land Co. v. Lovella Ditch, R. & Irr. Co., 21 Wyo. 204, 131 P. 43, point 2, L.R.A.1916C, 1275. The state of the pleadings in this case is in a rather peculiar situation. Whether or not the facts pleaded in the third defense of the defendant showed a valid release, was, it seems, a pure question of law. That might have been raised by demurring to that defense. Plaintiff, instead of pursuing that course, chose to plead that the release was obtained by duress, fraud and misrepresentation, thereby impliedly admitting the validity of such release if no such duress, fraud and misrepresentation had intervened. When accordingly, the court overruled the demurrer, it held in effect that such duress, fraud and misrepresentation were well pleaded, thus far clearly leaving the third defense setting forth the release as well as the question of duress, fraud and misrepresentation, in the case and justifying the opening statement of counsel for defendant. The further pleading in the amended reply that the release was not valid as above set forth would seem to present a pure question of law. And that would seem to be true also as to the assertion in the demurrer that the release was valid. If the court, in ruling on the demurrer, made a definite pronouncement on the law in this connection, it was only by reason of the statement that the demurrer was overruled in its entirety, and then only if that ruling were considered as having the same effect as though a demurrer by the plaintiff to the defendant's third defense had been sustained. In view of the uncertainty in this connection, we are hardly prepared to hold, since the allegations in the third defense were not equivalent to the proof thereof, that counsel for the defendant was not justified in saying what he did in his opening statement to the jury, in order that, if necessary, his view of the case might be properly reviewed in this court. We think, moreover, that the mere statement, made in good faith in the opening statement of counsel for defendant, that the release was given, was not reversible error. Nicholson v. State, 18 Wyo. 298, 106 P. 929. Cleavenger v. Castle, 255 Mich. 66, 237 N.W. 542. In fact, the statement impliedly admitted liability for damages on the part of the defendant, and so, in view of the fact that the release was not admitted in evidence, would seem to have been more prejudicial to the defendant than to the plaintiff. The release was offered in evidence outside of the hearing of the jury and was rejected. The jury returned a verdict in favor of the defendant. In view of our conclusion in this case, the question as to whether or not the release should have been received in evidence is not before us.

2. Evidence was introduced that all the special damages, that is to say, doctor bills, hospital bills, nursing bills, ambulance bill and funeral expenses, were all paid by the defendant. And in accordance with that evidence the court by Instruction No. 13, instructed the jury that if the verdict were in favor of the plaintiff, he would not be allowed any sum for such bills. These bills were all paid by the defendant and there would be no possible reason why the plaintiff should again recover the sums that had once been paid. Moreover, no exception was taken to the instruction. We find no error in this connection.

3. Plaintiff asked the court to give the following instruction to the jury: 'The Court instructs the Jury that the driver of an automobile upon the public highways is required to have his automobile under such reasonable control as will at all times enable him to avoid collision with other vehicles lawfully on the highway and operated with ordinary care. Ordinary care requires of every man who drives a motor vehicle on the public highways to keep a lookout for vehicles that may be upon the highway.' The court did not give Instruction No. A, but gave Instruction No. 7 which follows Instruction No. A so far as quoted above verbatim. So that no error could be predicated in this connection. However, counsel also asked in Instruction A the following: '* * * and to keep his motor vehicle under such control as to be able to check its speed or stop it absolutely if necessary to avoid injury to himself or others when danger may be expected or is apparent.' Instead of giving that portion of Instruction No. A verbatim, the court gave Instruction No. 11 to the following effect: 'You are instructed that it is the duty of the driver of an automobile to observe the highway ahead of him. That if, through conditions beyond his control, he cannot see an object upon the highway ahead of him, then he should reduce his speed and, if necessary, come to a stop until he can observe the highway ahead of him.' It would seem that by Instructions No. 7 and No. 11, the court substantially instructed the jury as requested by plaintiff in Instruction No. A. The jury could not have been misled so that the assignment of error in this connection must be overruled.

Other assignments of error question the soundness of other instructions but are not argued, and so are waived.

4. It is contended by appellant that the verdict of the jury is not sustained by sufficient evidence, since the negligence of the defendant is clear. It was stated recently by some members of the Supreme Court of the United States in Stone v. New York C. & St. L. R. Co., 344 U.S. 407, 73 S.Ct. 358, 361, that: 'The determination of whether there is adequate evidence to sustain a claim of negligence is one of the most elusive determinations...