Quincy v. JOINT SCHOOL DIST. NO. 41, ETC.

640 P.2d 304, 102 Idaho 764, 1981 Ida. LEXIS 416

• Court: Idaho Supreme Court
• Decided: December 1, 1981
• Docket: 13172
• Status: Published

Opinions

DONALDSON, Justice.

This is an appeal from a jury verdict in a civil action for personal injury suffered in a motorcycle-automobile collision. Plaintiff-appellant Quincy sustained the injury while riding a motorcycle and attempting to pass an automobile owned by defendant-respondent school district and driven by defendant-respondent Petrie. At the time of the collision, Petrie was the agent, servant and employee of the school district and was operating the vehicle as part of her employment by the school district.

Following trial, the jury returned a special verdict attributing eighty percent (80%) negligence to appellant and twenty percent (20%) negligence to. respondent Petrie. The trial court had previously granted respondent school district’s motion for involuntary dismissal as to any active negligence on its part outside that of its employee Petrie and, therefore, the school district was not included in the special verdict form as a possible entity to which a percentage of the negligence could be attributed. The jury also determined the total damages sustained by appellant to be $50,000.

Judgment was entered against appellant and appellant’s subsequent motion for a new trial was denied. This appeal followed. We affirm the decision of the district court.

The basic facts are as follows. On January 28, 1976, Petrie in the course of her employment by the school district was driving an automobile, a 1964 Dodge sedan, from her residence enroute to the school building where she was to pick up a school bus and deliver children homeward. The automobile was owned and maintained by the school district and functioned as a shuttle car for school bus drivers. Petrie, while thus on her way to the school, interrupted her drive to conduct a matter of personal business and slowed the automobile to make a left turn into a private driveway. Petrie testified that she applied the brakes and activated the turn signal prior to initiating the turn. Quincy’s motorcycle, coming from behind the automobile, collided with the left front fender of the automobile. Quincy was hurled from the motorcycle and sustained severe injuries.

The first assertion of error questions whether the school district was properly granted its motion for involuntary dismissal as regards the issue of active negligence on its part. From our review of the record, we agree with the conclusion of the district court that notwithstanding appellant’s failure to set forth with particularity the factual grounds upon which his contention of active negligence by the school district rested, I.R.C.P. 59(a), no evidence was presented at trial sufficient to support such a contention. Moreover, the jury was advised that any negligence on the part of respondent Petrie would be imputed to the school district because of the employee-employer relationship. In light of the foregoing, we find no error in the district court ruling and we affirm the granting of the dismissal as made. See I.R.C.P. 41(b). There is no issue presented as to the applicability of I.C. § 49-1404.

The next assertion of error we deal with is that the district court erred in prohibiting the jury from receiving oral and written evidence as to the safe operation of vehicles by the employee drivers of a school district. This area is statutorily controlled by Chapter 15 of Title 33 of the Idaho Code, entitled “Transportation of Pupils.” In looking to I.C. § 33-1501 et seq., it is apparent to this Court that the statutory requirements and the school district’s response to those requirements through the compilation and adoption of safety rules and regulations, were intended to impact primarily upon the safety and adequate protection of the health of the pupils in the transportation of school pupils. In short, the safety rules were designed to prevent accidents in the transportation of pupils. In the instant case, the evidence discloses that respondent Petrie was not engaged in the transportation of pupils at the time of the accident. Nor was she driving a vehicle such as a school bus, which would require at the very least a driver’s additional awareness of the oversize nature of the vehicle. Petrie was simply driving an ordinary automobile on her way to work. No pupils were present in the automobile. While the automobile was owned by the school district, the automobile was not functioning as a vehicle which would come under the purview of I.C. § 33-1501 et seq.¹ and, therefore, the safety rules designed to control the operation of such vehicles have no relevance in establishing the standard of care owed to others, including appellant, by Petrie in the operation of the automobile under the circumstances of this case. The district court’s disallowance of the admission of evidence pertaining to safety rules, regulations, manuals, training sessions and training assistance for the training of operators of school vehicles as being not relevant and material is therefore affirmed.

In the next assertion of error that we consider, it is contended by appellant that the district court erred in failing to dismiss for cause one John E. Pugh as a juror in the case. The record discloses that counsel for plaintiff twice challenged Mr. Pugh for cause. The first challenge came after Mr. Pugh stated that his wife was a bus driver for the school district, and that he had discussed the accident with her, and that he doubted he could disregard what his wife had told him. Questioning of Mr. Pugh by the court went as follows:

VOIR DIRE EXAMINATION BY THE COURT:

“Q. Mr. Pugh, of what you have heard, do you have a, has it caused you to form a present opinion as to the merits of the case.

“A. Well, no, not at present, but then I don’t know if I could completely put out of my mind what my wife and I have talked about and—

“Q. Well, do you have a present opinion at this time?

“A. No, not really because I wasn’t there myself.

“Q. Do you believe that you have any knowledge or know any of the facts of what happened in this accident.

“A. No.

“Q. Assuming that those facts are all presented during the evidence of this trial, can you and will you base your verdict solely upon the evidence introduced here in trial.

“A. Yes, I think.

“THE COURT: I deny the challenge.”

Subsequent voir dire examination by appellant counsel revealed that Mr. Pugh believed he would probably discuss the case further with his wife. Again, he was challenged for cause. Again, the court questioned Mr. Pugh:

BY THE COURT:

“Q. You may not realize, but all of the jurors, not only you, the situation exists. The jurors will be under instruction when they go home tonight not to discuss the case with anyone and that includes family members or relatives. Do you believe that you can abide by that court order and instruction.

“A. Oh, yeah.

“Q. And in spite of that, would you abide by that court order in spite of some pressure from your spouse maybe to discuss it.

“A. Yeah.

“Q. Do you think you could handle the home situation if you were on the jury and as we have already instructed you once, but it will be repeated many times, not to permit anyone to discuss it with you. And if that should happen that you inform your wife that you cannot permit her to discuss it and you will have to cut off that conversation. Do you think that you could do that.

“A. I imagine.

“THE COURT: I will again deny your challenge, Mr. Tate.”

I.R.C.P. 47(h) states that “Challenges for cause shall be heard and determined by the court .... ” (Emphasis added.) I.R.C.P. 47(i) states that “[v]oir dire examinations ... shall first be conducted by the court .... The court shall supervise voir dire examination of the jurors to insure a speedy, fair and thorough examination of the jurors.” (Emphasis added.) These provisions together make it clear that the primary responsibility for voir dire and the selection of competent jurors rests upon the trial judge. “It is the trial court and not this Court which is in a position to determine first hand whether a juror can render a fair and impartial verdict.” State v. Rose, 121 Ariz. 131, 589 P.2d 5,13 (1979). Certainly, it is the rule in Idaho that “factual determinations made by the district court will not be overturned on appeal unless they are clearly erroneous.” Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980).

In order to determine whether a jur- or should be excused for cause, the trial judge must weigh the pertinent facts and then decide if they justify exclusion of the juror pursuant to the standards set forth in I.R.C.P. 47(h). Although the voir dire of Mr. Pugh by plaintiff’s counsel initially gave reason to challenge for cause, subsequent questioning by the court clarified the responses of Mr. Pugh so as to give the court ample basis for concluding that Mr. Pugh would serve as a fair and impartial juror. In view of these answers given by Mr. Pugh to the court’s questions, it was clearly within the court’s discretion to deny plaintiff’s challenges for cause.

In the next assertion of error, the appellant alleges that there was not sufficient evidence to justify the verdict which attributed 80% of the negligence causing the accident to the appellant. The appellant argues that there was only one eyewitness to the accident and that her testimony was conflicting. Furthermore, the appellant argues that the respondent testified she observed nothing to indicate that the appellant had caused the accident. The appellant claims that this is clearly insufficient evidence to justify the verdict which attributed 80% of the negligence to the appellant.

The respondent argues that the jury was more than justified in its apportionment of fault. The eyewitness testified that the respondent’s vehicle had slowed to start its turn into the driveway of the eyewitness. Furthermore, the respondent testified she had properly signaled her intention to turn for 150 to 200 feet and was still in her own lane of traffic when suddenly her vehicle was struck by the motorcycle. She also testified that she had checked in both of her rear view mirrors as she approached the driveway. The appellant testified but recalled nothing of the accident.

It is axiomatic that “[o]n 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.” Conrad v. St. Clair, 100 Idaho 401, 403, 599 P.2d 292, (1979); Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978); Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974).

“By substantial, it is not meant that the evidence need be uncontradicted. All that is required is that the evidence be of sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper. It is not necessary that the evidence be of such quantity or quality that reasonable minds must conclude, only that they could conclude.” Mann, supra, 95 Idaho at 736, 518 P.2d 1198. A review of the record indicates that there is sufficient evidence sustaining the apportionment of fault by the jury.

The appellant next alleges that the court erred by reading certain preliminary instructions to the jury without giving the parties sufficient time to review and object to the instruction. Before commencing with the reading of the instructions the trial judge stated: “Mr. Keeton, Mr. Tate, it is my custom ordinarily to give some preliminary instructions at this time in advance of the opening statement. Do you have any objections to that procedure. All right we will go ahead with it at this time.”

Under I.R.C.P. 51(a)(1) challenges to rulings on requested jury instructions must be made a part of the record. The appellants failed to timely object to the district court’s ruling. Therefore, the appellant is precluded from raising this issue on appeal. See Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978).

The appellant next alleges that failure to instruct the jury as to stipulated facts can be grounds for reversible error. The appellant submitted a requested instruction listing the undisputed facts and the trial court refused to give this instruction on the basis that it was unnecessary and that the court felt it would only burden the jury with more paper work. The appellant claims that this instruction referring to the stipulated facts is set out in Idaho Jury Instructions (IDJI) 104 and that following I.R.C.P. 51(aX2)² the trial judge should have read the instruction because the rule recommends that the judge use the IDJI.

Rule 51(a)(2) recommends that the judge use the IDJI only after determining that the jury should be instructed on the subject. In this case the trial judge found it was unnecessary to instruct the jury again on the undisputed facts. The record shows that these facts were stipulated by counsel in the presence of the jury. The substance of that proposed instruction was adequately covered elsewhere and, hence, the trial court did not err in refusing to give appellant’s proposed instructions. Garrett v. Nobles, 102 Idaho 369, 630 P.2d 656 (1981); Mann v. Gonzales, 100 Idaho 769, 605 P.2d 947 (1980).

The appellant also contends that other jury instructions were erroneous. We find no merit to those specifications suggesting erroneous instruction. The instructions state the law clearly and adequately and the legal theories stated therein are supported by the facts produced at the trial. Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971).

The next assertion of error by the appellant is that the jury should have been polled as to the question of whether there was any confusion concerning the negligence of the parties. Polling is a recognized means of ascertaining whether or not a jury is unanimous in their decision. 76 Am.Jur.2d, Trials, § 1122. The function of polling is not to determine whether there is any confusion as to the negligence of the parties, but, rather, it is used to determine whether the verdict rendered is the verdict of each juror. The appellant specifically stated that he did not wish to have the jurors polled as to whether the verdict as read was in fact their verdict. Therefore, no error was committed. Cf. State v. Bounds, 74 Idaho 136, 258 P.2d 751 (1953) (in a criminal case a juror is not to be polled concerning his or her agreement on specific elements of the offense charged).

The trial court awarded attorney fees to the defendant and the appellant appeals from this ruling. Attorney fees were awarded pursuant to I.C. § 12-121 which authorizes the trial judge to award reasonable attorney fees to the prevailing party. Since this matter was initiated prior to March 1, 1979, it was not necessary for the trial court to make the findings presently required by I.R.C.P. 54(e)(1). We find no abuse of discretion. Odziemek v. Weseley, 102 Idaho 582, 634 P.2d 623 (1981).

The remaining assignments of error have been reviewed and the Court finds that they are without merit. The verdict of the jury is affirmed.

Costs to respondents.

BAKES, C. J., McFADDEN, and SHEPARD, JJ., concur.

1 . I.C. § 33-1501 provides in part:

“Transportation authorized. — To afford more equal opportunity for public school attendance, the board of trustees of each district, including specially chartered school districts, shall, where practicable, provide transportation for the public and private school pupils (of) within the district, under conditions and limitations herein set forth. In the approving the routing of any school bus or other passenger equipment, or in the maintenance and operation of all such transportation equipment, or in the appointment or employment of chauffeurs, the primary requirements to be observed by the board of trustees are the safety and adequate protection of the health of the pupils. Nothing herein contained shall prevent any board of trustees from denying transportation to any pupil in any school bus or other transportation equipment operated by or under the authority of said board, upon good cause being given, in writing, to the parents or guardian, or either of them, of such pupil.”

I.C. § 33-1504 provides:

“School buses — Other passenger equipment. — a. A motor vehicle shall be deemed a ‘school bus’ when it has a seating capacity of nine (9) or more passengers not including the driver, and is owned and operated by a school district or a common carrier and is used exclusively for transporting pupils, or is owned by a transportation contractor and is used regularly for transporting pupils.

b. A motor vehicle shall be deemed ‘other passenger equipment’ when it has a seating capacity of not more than eight (8) passengers, not including the driver, and is owned and operated by a school district or by any person, firm or corporation, and is used regularly for transporting pupils.”

2 . “Rule 51(a)(2). Use of Idaho Jury Instructions (IDJI). — Whenever the latest edition of Idaho Jury Instructions (IDJI) contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the IDJI instruction unless he finds that a different instruction would more adequately, accurately or clearly state the law. Whenever the latest edition of IDJI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an IDJI instruction cannot be modified to submit the issue properly, the instruction given on that subject should be simple, brief, impartial and free from argument. When an instruction requested by a party is a modified IDJI instruction, the party should indicate therein, by use of parentheses or other appropriate means, the respect in which it is modified.”