Tufty v. Sioux Transit Co.

• Decision Date: 16 February 1945
• Docket Number: 8700.
• Citation: 17 N.W.2d 700,70 S.D. 352
• Parties: TUFTY v. SIOUX TRANSIT CO.
• Court: South Dakota Supreme Court

17 N.W.2d 700

70 S.D. 352

TUFTY v. SIOUX TRANSIT CO.

No. 8700.

Supreme Court of South Dakota

February 16, 1945

Bailey, Voorhees, Woods & Fuller and M. T. Woods all of Sioux Falls, for appellant.

Louis H. Smith, of Sioux Falls, for respondent.

SMITH Presiding Judge.

This action was brought under SDC 37.22 against the Sioux Transit Company and one Ted Tufty to recover damages for the wrongful death of a five vear old child. The death was the result of an intersectional collision between a bus of the Sioux Transit Company and a car driven by Ted Tufty. The child was a passenger in the car of Ted Tufty, her uncle. The first trial resulted in a verdict and judgment exonerating Ted Tufty, and in a verdict and judgment against the Sioux Transit Company in the sum of $6,000. The latter judgment was reversed by this court. Tufty v. Sioux Transit Co., S.D., 10 N.W.2d 767. In the second trial, the jury returned a verdict against the Sioux Transit Company for $7,000 'with interest at 5 per cent per annum from Jan 1, 1942 to Sept. 17, 1943, amounting in all to $7599.60.' The trial court denied the motion of the defendant for a new trial but reduced the judgment to $7,000. Its order recited that 'the jury was not warranted in returning a verdict for interest, * * * and the plaintiff having in open court accepted a reduction of the verdict in the sum of such interest, * * *. It is ordered and adjudged that the verdict and judgment * * * be reduced * * *.' The appeal presents the judgment and order overruling the motion for new trial for review.

A group of assignments deal with the admission of evidence and the cross-examination of witnesses. An examination of the record of that which preceded and followed the questions and answers appearing in these assignments has convinced us that defendant suffered no prejudice from these rulings of the trial court.

By a series of questions and offers plaintiff sought to prove that the defendant Tufty was exonerated at the first trial. In each instance the trial court sustained the objection of defendant. However, before objection could be made a witness made an affirmative answer to plaintiff's question: 'And I will ask you if you know whether the jury returned a verdict in favor of the defendant, Ted Tufty.' This answer was stricken by the court. After the subject of the former verdict had been twice injected by counsel for plaintiff, defendant requested the court to instruct counsel not to make further mention of that verdict, and later, in objecting to the above-described testimony which was stricken, defendant asked the court to admonish the jury to disregard it. The court failed to respond to this request. Error is predicated upon the failure of the court to admonish the jury to disregard these references to the former verdict.

Whether the negligence of Ted Tufty was the sole proximate cause of the tragic death of the little girl was fully and fairly submitted by the court's instructions, and the jurors were cautioned to confine themselves to a consideration of the evidence in their deliberations. We seriously doubt whether the plight in which defendant was put by the injection of the former verdict would have been bettered by the added special admonition. However, we do not rest our decision of this issue upon that ground.

The conduct of counsel gave rise to the described requests for admonition. Implicit in the assertion that the court should have heeded the requests is an assumption that counsel was guilty of misconduct in persisting until he had acquainted the jury with an inadmissible fact. In determining its course, the trial court was required to determine not only that counsel's conduct was wrongful, but how it could most effectively neutralize such conduct. These requests were, we think, addressed to the court's judicial discretion. In abusing that discretion, the court would not commit an error at law in the sense those words are used in SDC 33.1605(7). Refusal of such admonitions, in our opinion, constituted an 'abuse of discretion by which' defendant 'was prevented from having a fair trial' and must be challenged under SDC 33.1605(1). The only way such a matter can be presented in the record is by affidavit as required by SDC 33.1606, and unless so presented it is not subject to review upon appeal. Keyes v. Baskerville, 42 S.D. 381, 175 N.W. 874; Wolff v. Stenger, 59 S.D. 231, 239 N.W. 181; State v. Degner, 59 S.D. 539, 241 N.W. 515. The record fails to reveal the essential affidavit in connection with the motion for new trial.

The court submitted the issue of contributory negligence of the parents of the deceased to the jury, but refused certain requests of defendant on that subject. These instructions were predicated upon the assumption that the evidence was sufficient to warrant an inference that Ted Tufty was in a stage of intoxication on the day in question; that his condition contributed to the collision; and that the parents knew or ought to have known of his condition at the time the child was permitted to accompany him on the fatal ride. The evidence, in our opinion, is wholly insufficient to warrant an inference that the father of the child knew or ought to have known that Tufty was intoxicated, or to charge the father with responsibility for the presence of his daughter in the Tufty car at the time of the collision. The instructions requested refer to 'the parents' throughout and for that reason were properly refused. Under this record the contributory negligence of the wife, if any, is not imputable to the husband so as to...