Wurm v. Pulice

• Decision Date: 30 June 1960
• Docket Number: No. 8849,8849
• Citation: 353 P.2d 1071,82 Idaho 359
• Parties: Lyle G. WURM, Plaintiff-Appellant, v. Frank PULICE, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1071

353 P.2d 1071

82 Idaho 359

Lyle G. WURM, Plaintiff-Appellant, v. Frank PULICE, Defendant-Respondent.

No. 8849.

Supreme Court of Idaho.

June 30, 1960.

Eugene F. McCann, Chas. E. Horning, Wallace, for appellant.

Brown & Peacock, Kellogg, for respondent.

SMITH, Justice.

Plaintiff (appellant) brought this action to recover from defendant (respondent) damages for his personal injuries and injury to his automobile resulting from a collision with defendant's automobile, and defendant, by cross-action, sought to recover damages for his personal injuries thereby suffered.

Plaintiff alleges that the accident occurred about 7:00 o'clock the morning of April 4, 1958, on U.S. Highway No. 10 east of Kellogg; that he was traveling westerly on his own right side of the center line of the highway at a speed not exceeding 50 miles per hour, accompanied by his wife, Marie Wurm; that defendant, traveling easterly, drove his automobile across the center line 'in such a reckless, careless and negligent manner as to come across the center line on said highway and into the northerly traffic lane on said highway and drive the same into and against the car being operated by plaintiff'.

Defendant by his answer denies such allegations of negligence. In his cross-complaint he alleges that the morning of April 4, 1958, he was traveling easterly on his right hand side of the center line of the highway, at a speed not over 40 miles an hour; that falling rain and snow caused the highway to be wet and slushy, although visibility was good; that his windshield wipers were working; that from the place of collision, Highway No. 10 is straight for several hundred feet to the east, and inclines upward to the brow of a small hill, and is straight to the west for about one thousand feet, sloping downward to a draw or small valley, and then upward to the brow of a small hill; that plaintiff was driving his car at excessive speed considering the condition of the highway; that when plaintiff was about one hundred feet distance from the point of the accident he 'carelessly and negligently permitted his vehicle to cross the center line of said highway and thereupon said automobile went into a skid causing his automobile to turn completely into defendant's lane of traffic, resulting in a collision between the two vehicles.'

All the parties received injuries resulting from the accident; Mrs. Wurm was so severely injured that her death occurred ten days later; also, plaintiff's automobile was severely damaged.

Plaintiff denied the charge of the cross-complaint that he was negligent and responsible for the accident.

Trial resulted in a jury verdict of $4.626.85, followed by entry of judgment thereon, in defendant's favor.

Plaintiff appealed from the judgment and from orders of the trial court denying his motions for judgment notwithstanding the verdict, and for a new trial.

Plaintiff assigns error in the giving of defendant's requested jury instruction No. 3, which is a summation of the pleadings. He complains that the trial court erroneously advised the jury of defendant's allegations, 'that the plaintiff caused the accident by carelessly and negligently permitting his vehicle to cross the center line of said highway and to turn completely into defendant's lane of traffic,' contending that defendant abandoned such alleged theory. In support of his contention, plaintiff points to defendant's testimony which shows that the collision occurred, not in defendant's lane of traffic, but in plaintiff's lane.

Defendant, in his cross-complaint, pleaded plaintiff's negligence in permitting his automobile to cross the center line of the highway, and turning his vehicle into defendant's lane of traffic which resulted in the collision of the vehicles. The issue raised by the cross-complaint is whether plaintiff's crossing over the center line of the highway into defendant's lane of traffic, constituted the act which proximately caused the accident.

Defendant pleaded that plaintiff did cross entirely into defendant's lane of traffic, and defendant testified that he saw, in his own lane of traffic, plaintiff's car and that plaintiff turned back to his own lane and then back into defendant's lane; that then, not knowing where to go, defendant turned to the left. He testified: 'then he [plaintiff] was just close to me and I don't know where to go * * * only where I could go was to side to the left, and he started to go to the left,' and that the accident occurred in plaintiff's lane of traffic.

The instruction was but a recital of the allegations of the pleadings. The evidence adduced by defendant does not show, as plaintiff contends, that defendant had abandoned the theory of his pleadings. Moreover, the portion of instruction No. 3 of which plaintiff complains closes with the statement: 'Such allegations are denied by the plaintiff Lyle G. Wurm.' Further, there was no inference that plaintiff agreed with defendant's allegations, nor that those allegations constituted proof. Such instruction merely placed before the jury defendant's theory of the case, admonishing the jury, however, that plaintiff denied the same.

It is the duty of the trial court to instruct the jury upon every reasonable theory of the parties to the controversy which finds support in the pleadings and the evidence. Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Jones v. Mikesh, 60 Idaho 680, 95 P.2d 575; Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 64 Idaho 474, 133 P.2d 1017; McKinley v. Wagner, 67 Idaho 104, 170 P.2d 796; Lemman v. McManus, 71 Idaho 467, 233 P.2d 410; Cook v. Saltzer, 74 Idaho 97, 257 P.2d 228. Such assignment is without merit.

Plaintiff assigns error in the trial court's refusal to allow certain examination of his witness Goodson, when recalled, contending that Goodson's testimony differed materially from statements he had made to plaintiff's counsel, and in ruling that the attempted examination of the witness constituted redirect examination.

Mr. Goodson, whom plaintiff called on direct examination, testified that he was driving easterly toward Kellogg following defendant's automobile some three-tenths to five-tenths of a mile; that he did not recall seeing defendant's car after it had proceeded over a small hill or raise in the highway and could not state how the accident happened. At the conclusion of such direct examination, plaintiff's counsel stated, 'I think that's all,' but requested that the witness remain through the balance of the afternoon court session, stating, 'I may want to recall him.' Then followed defendant's cross-examination of Goodson.

Plaintiff, after calling and examining two additional witnesses, recalled his witness Goodson. Plaintiff's counsel then marked for identification a sketch or plat. The record then shows:

'Q. Mr. Goodson, I show you this plat which is a very inexpert one drawn by myself, could you say whether or not you saw that before?

* * *

* * *

'A. Yes, I have seen a drawing of this nature. * * * Yes, this is it.

'Q. * * * Isn't it a fact, Mr. Goodson, that this drawing was made by you and I, or it was made by me from information furnished by you after I came down to see you * * * and we drove out to the scene of the accident and you pointed out where the cars were and what you had seen?

'A. Yes, that's true.'

Plaintiff's counsel then moved the introduction of the exhibit in evidence. Defendant's counsel objected and moved to strike Goodson's testimony on the ground that it was improper redirect examination and offered for the purpose of impeaching plaintiff's own witness. After plaintiff's counsel had attempted further to impeach his witness, contending surprise because of the testimony of Goodson that he did not see the cars at the moment of impact, the trial court granted defendant's motion and refused admission of the exhibit in evidence.

Plaintiff predicated surprise on Goodson's testimony on direct examination, that he 'didn't recall noticing defendant's car after it broke over the hill until after it was hit,' and that he couldn't say that he 'had observed the two cars at the time of impact;' whereas, plaintiff contended, and attempted to show on the redirect examination, that the witness had stated to plaintiff's counsel, that he saw the Pulice car 'swerve into the wrong lane of traffic and crash into the car * * * later identified as being Mr. Wurm's.'

I.C. § 9-1207 provides that a party producing a witness 'may * * * show that he has made, at other times, statements inconsistent with his present testimony.' In Bodenhamer v. Pacific Fruit & Produce Co., 50 Idaho 248, 257, 295 P. 243, 246, this Court announced the rule applicable here in language as follows:

'The theory under which the impeaching evidence is admitted is that appellant was surprised at the unfavorable testimony given by the witness called by him, or the witness is hostile, or the party in calling him has been entrapped to his prejudice. (Citation). But this rule does not extend to a mere failure to testify to all the facts he was expected to testify to. (Citations). This is true in jurisdictions having statutes similar to ours. (Citation). See Agalianos v. American Cent. Ins. Co., 62 Cal.App. 349, 217 Pac. 107, 113, holding that the testimony * * * must be damaging, not merely negative. (Citation).' (Emphasis supplied.)

In the instant case the witness Goodson testified in a negative manner, simply failing to testify as strongly as plaintiff expected. Moreover, the record shows that plaintiff's counsel had before him, on direct examination, the very sketch or plat which he attempted to introduce in evidence on redirect examination, in that plaintiff's counsel offered it to defendant's counsel, with the latter rejected, for his use on cross-examination of Goodson. Under the statute, I.C. § 9-1207, plaintiff had the right to impeach his own witness; however, under ...