STEPHENS v BROWN
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No. 12270 IN THE SUPREME COURT OF THE STATE OF M N A A OTN 1972 JESSIE A. STEPHENS, E x e c u t r i x of t h e E s t a t e o f F r a n k l i n P , S t e p h e n s , Deceased, P l a i n t i f f and Respondent, -vs - GLEN BROWN, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court of t h e E l e v e n t h J u d i c i a l D i s t r i c t , Honorable Robert C. Sykes, Judge p r e s i d i n g . Counsel of Record: For Appellant: M a r s h a l l H. Murray a r g u e d , K a l i s p e l l , Montana. Joseph F. Daley, K a l i s p e l l , Montana. For Respondent: Korn, Warden, W a l t e r s k i r c h e n and C h r i s t i a n s e n , K a l i s p e l l , Montana. Merrit N. Warden and Gary R.. C h r i s t i a n s e n a r g u e d , Ka l i s p e l l , Montana. Submitted: October 1 7 , 1972 M r , J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court, This i s an appeal from a judgment notwithstanding a v e r d i c t , which judgment was granted on t h e i s s u e of l i a b i l i t y with damages t o be determined on a new t r i a l . P l a i n t i f f brought t h e a c t i o n i n Flathead County i n t h e eleventh j u d i c i a l d i s t r i c t t o recover s p e c i a l , general and p u n i t i v e damages a g a i n s t defendant on two counts, survivorship and wrongful death. withdrawn during t r i a l . Punitive damages were The j u r y rendered a v e r d i c t f o r defendant. Subsequently, p l a i n t i f f moved f o r judgment notwithstanding t h e v e r d i c t and f o r a new t r i a l . The c o u r t ordered judgment entered a g a i n s t t h e defendant on t h e i s s u e of l i a b i l i t y , and s e t t h e i s s u e of damages f o r t r i a l , O June 21, 1970, a t 9:50 p,m,, on Whitefish Lake, a c o l l i n s i o n occurred between two outboard motor boats. The sun had j u s t s e t b u t i t was s t i l l d a y l i g h t , v i s i b i l i t y was good, t h e l a k e was calm and t h e weather c l e a r . One of t h e b o a t s was owned by Frank Stephens, t h e o t h e r by Glen Brown. on t h e lake. Stephens and Brown were next door neighbors The Stephens boat was a 14' f i b e r g l a s Glastron, powered by a 55 H,P. Evinrude. I t had a l i t t l e over a f o o t of freeboard; pushbutton e l e c t r i c c o n t r o l s ; and two bucket s e a t s facing t h e f r o n t , which were divided by a deep console. The s t e e r i n g wheel was on t h e r i g h t ; a s were t h e s h i f t c o n t r o l s and throttle. The Brown boat was a 17' aluminum Flying C r e s t , powered by an 85 H.P. Evinrude. I t was higher o f f t h e water than t h e Stephens boat and had s i m i l a r c o n t r o l s . It had bench type s e a t s , a f r o n t one and two s i d e s e a t s . A f t e r an afternoon of golf and a at her's day evening barbecue, Glen Brown and t h r e e g u e s t s went f o r a c r u i s e on t h e lake. They had had c o c k t a i l s e a r l i e r and one of t h e i r number took t h e b o t t l e of bourbon along. Brown. Driving t h e boat was Glen A f t e r they had c r u i s e d up t h e l a k e , Brown increased h i s speed on h i s r e t u r n t o about 25 miles per hour. The occupants were watching t h e scenery and a c t i v i t i e s ashore. The Stephens boat had j u s t s t a r t e d a t r i p up t h e lake. Frank Stephens was d r i v i n g , h i s wife s e a t e d i n t h e bucket s e a t Mrs. Stephens could n o t o p e r a t e t h e boat. t o the l e f t . She t e s t i f i e d t h a t Frank noticed t h e r e a r l i g h t was f l i c k e r i n g . He pushed t h e n e u t r a l b u t t o n on t h e c o n t r o l s and, asking h i s wife t o hold t h e s t e e r i n g wheel, went t o t h e r e a r n e a r t h e l i g h t . Mrs. Stephens remained s e a t e d i n t h e passenger's s e a t opposite t h e c o n t r o l s and o u t of t h e i r reach. She t e s t i f i e d t h a t t h e boat was i n n e u t r a l and dead i n t h e water o r j u s t d r i f t i n g . A eyewitness, on shore and f a r enough n away from t h e scene t h a t he could n o t s e e people, t e s t i f i e d the Stephens b o a t was moving "slow"; 1t wasn't throwing a wake"; odera rate speed, two miles an hour maybe. J u s t b a r e l y going along, b a r e l y cruising"; "moving but i t wasn't dead", While Frank Stephens was i n t h e r e a r of h i s boat f i x i n g t h e l i g h t , Mrs. Stephens was enjoying t h e scenery. She observed a l a r g e boat t r a v e l i n g a t a high r a t e of speed, b u t gave no thought t o i t . L a t e r she again observed t h e Brown boat t r a v e l i n g towards them a t high speed, but she was n o t concerned because they were c l e a r l y v i s i b l e and t h e r e was ample opportunity f o r t h e o p e r a t o r t o t u r n t o avoid them. But, she next saw t h e Brown boat bearing down on h e r husband and h e r s e l f from a s h o r t d i s t a n c e and r e a l i z e d t h a t i t s operator had n o t seen them. She stood up and screamed, i n a v a i n e f f o r t t o a t t r a c t t h e a t t e n t i o n of Brown, The Brown boat never saw t h e Stephens boat and s t r u c k i t , t h e p o i n t of c o n t a c t about midship on t h e r i g h t s i d e . The Brown boat s t r u c k with such an impact a s t o go completely up and over t h e Stephens b o a t , s t r i k i n g Frank Stephens on the head and body and knocking him out of t h e boat i n t o t h e water, where he d i e d from drowning. t h e water. One passenger i n t h e Brown boat was thrown i n t o The Brown boat r i g h t e d i t s e l f and was a b l e t o pick up i t s passenger from t h e water. Frank ~ t e ~ h e n s ~ b o d y r e was covered the next day. Mrs. Stephens was bruised in the collision and Brown and one of his passengers were injured. Mrs. Stephens brought this action as executrix of the estate of Frank Stephens. The issues on appeal are: 1, Did the court err in denying defendant the defense of contributory negligence? 2. Did the court err by granting judgment notwithstanding the verdict on the question of liability? 3. Did the court err in denying defendant's motion for summary judgment and motions to dismiss or for nonsuit or directed verdict and thus allow the survivorship claim to go to the jury? 4. Did the court err in denying defendant's offers of proof: (a) To the question of admission of the deceased's will? (b) To the question of instantaneous death and appreciable period of time? Directing our discussion to issues 1 and 2 together, we shall attempt to set up the problem without giving all the details of efforts to amend the pleadings, rulings on evidence, instructions given, and even tactics of counsel. Suffice it to say that the issue of contributory negligence on the part of the deceased Frank Stephens and the plaintiff, his widow and beneficiary of his estate, was permitted in the case. Substan- tially for this reason the trial judge granted the motion for judgment notwithstanding the verdict on the issue of liability. In other words, he held finally, as a matter of law, that the sole proximate cause of the death of Frank Stephens was the negligence of defendant Brawn. Appellant, defendant Brown, contends on appeal that the evidence presented was sufficient to establish a fact question for the jury on contributory negligence of deceased Frank Stephens, for having abandoned his controls to his wife who knew nothing about operating a boat and f a i l i n g t o keep a proper lookout. Defendant a l s o urges t h a t p l a i n t i f f took no evasive a c t i o n a f t e r observing ~ r o w n ' sboat and d i d n o t warn h e r husband i n time. Here we have a wide open l a k e , stephensf boat d r i f t i n g o r moving very slowly, a scene duplicated thousands of times y e a r l y i n any c r u i s i n g o r f i s h i n g scene, The occupants i n a t t e n t i v e . They might be f i s h i n g , sunbathing, o r merely t i n k e r i n g with a l i g h t , a s here. Coming a t them a t high speed, a boat under considerable power, i t s d r i v e r and occupants not looking ahead a t what i s p l a i n l y v i s i b l e with a wanton d i s r e g a r d f o r t h e s a f e t y of o t h e r s , smashes i n t o them, The s o l e proximate cause a s a matter of law i s t h e negligence of t h e b l i n d l y speeding boat. Defendant urges right-of-way r u l e s , maritime law, and t h a t a f a c t question e x i s t s ; b u t i t simply does n o t a s t o t h e s o l e proximate cause of t h e accident. Our conclusion, a s was t h a t of t h e t r i a l c o u r t , does n o t r e q u i r e us t o d i s c u s s whether o r n o t t h e c o n t r i b u t o r y negligence W make t h e comment e of a b e n e f i c i a r y would be a b a r t o recovery. only because defendant's b r i e f on appeal dwells a t length on the subject. Before i t i s proper t o submit t h e question of c o n t r i b u t o r y negligence t o t h e j u r y , t h e r e must be evidence n o t only i n d i c a t i n g ) d&:lc# q:< negligence on t h e p a r t of p l a i n t i f f b u t a l s o t h a t such evl; en e 1 contributed a s a proximate cause t o t h e accidentand r e s u l t i n g . injuries. DeVerniero v. Eby, 29 St.Rep. , 496 273, and c a s e s c i t e d t h e r e i n , M nt o Defendant c i t e s Sullivan v.John Doe, P.2d 290, Mont , , 495 P.2d 193, 29 St.Rep, 190, f o r t h e p r o p o s i t i o n t h a t before a p l a i n t i f f can recover he must show t h a t he exercised h i s i n t e l l i gence t o discover and avoid t h e danger which he a l l e g e s was brought about by t h e negligence of defendant. However, except t h a t t h e p o s i t i o n s of p l a i n t i f f and defendant a r e reversed, & S u l l i v a n supports our holding here. There, a p o l i c e c a r d r i v e r was h e l d a s a matter of law t o have seen a parked c a r on t h e s t r e e t c l e a r l y v i s i b l e , i f he had looked, Defendant a l s o c i t e s Hoffman v , Herzog, 491 P,2d 713, 28 St.Rep.1009, 158Mont. 296, and S h i e l d s v. Murray, 156 Mont, 493, 481 P. 2d 680, f o r t h e proposition t h a t a case should n o t be withdrawn from a jury where reasonable and fair-minded men could reach opposite conclusions. I n each c a s e , t h e r e was conf l i c t i n g evidence and we declared we were unable t o say t h a t t h e evidence permitted but one i n f e r e n c e ; and t h a t a j u r y question was posed. However, a s we h e r e t o f o r e have described t h e f a c t s h e r e , t a k i n g t h e f a c t s i n defendant's view---they lead t o but one conclusion. I n i s s u e 3, defendant's contention goes to t h e survivorship claim, That i s , defendant urges t h a t t h e death of Frank Stephens was instantaneous and t h e r e f o r e t h e r e was no b a s i s f o r an a c t i o n based upon h i s surviving h i s i n j u r i e s , under t h e provisions of s e c t i o n 93-2824, R.C.M. 1947, The i s s u e ,was r a i s e d by defendant b e f o r e t r i a l by motion f o r summary judgment and during t r i a l by motion f o r nonsuit o r d i s m i s s a l and by motion f o r d i r e c t e d verdict, O each occasion defendant was denied r e l i e f , n The evidence e s t a b l i s h e d t h a t Frank Stephens received m u l t i p l e s e r i o u s i n j u r i e s t o h i s head, neck and body when s t r u c k by t h e Brown boat while he was s t i l l i n h i s own b o a t , He was then propelled by f o r c e i n t o t h e water where he d i e d from drowning. A p a t h o l o g i s t t e s t i f i e d from h i s f i n d i n g s on autopsy t h a t t h e i n j u r i e s , though s e r i o u s , would n o t by thems e l v e s have caused death, He f u r t h e r t e s t i f i e d t h a t t h e death could r e s u l t "within a few seconds o r a couple of minutes". A s defendant d e s c r i b e s i t h e r e , t h e deceased died from drowning while unconscious, obviously without s t r u g g l e , pain o r anguish. On t h e o t h e r hand, p l a i n t i f f s t a t e s t h a t s i n c e Stephens died from drowning, he survived h i s i n j u r i e s f o r an appreciable length of time. Section 93-2824, R,C.M, 1947, provides in pertinent part : An action * * * shall not abate by death * * * but shall in all cases, where a cause of action or defense arose in favor of such party prior to his death * * *survive, and be maintained by his representatives or successors in interest * * *I1. It In the year 1909, this Court speaking through Mr. Justice Holloway, in discussing a similarly worded survival statute contained in the fellow servant statute passed in 1907, (now section 41-110, R.C.M. 1947), in the case of Dillon v. Great Northern Ry, Co., 38 Mont, 485, 496, 100 P. 960, had this to say : "With these elementary principles before us the question recurs, Is it possible for one who is instantly killed to have a cause of action for the wrong which caused his death? The very statement of the question would seem to suggest its own answer. Since there is not any appreciable length of time between the wrong and the death, or in other words, the wrong and the death being coincident in point of time, the instant the wrong is committed the victim of the wrong has ceased to exist, and it seems impossible that there is any cause of actian in favor of such victim, This conclusion seems inevitable when the elements which are considered in determining the measure of damages are taken into account. Those elements are physical and mental pain and suffering, expense of medical attendance, loss of time, and decreased earning capacity. In the case of instant death every one of those elements is absent. To presume the existence of any one of them is to presume that life did not become extinct until some appreciable time had elapsed after the wrong was committed, a fact which is negatived by the agreed statement of facts in this case. Justice Holloway put forth the instant death and surviva1 for an appreciable time language applied since that time. In Welch v, Nepstad, 135 Mont. 65, 337 P.2d 14, the deceased was severely bruised over the right eye and temple, bruised on the chest, back, upper arms and hand; the truck he was riding in was thrown into about two and one-half feet of muck, slime and water in a sump hole beside the road; and, death was by drowning. There a doctor testified, in his opinion, that five to seven minutes elapses for death to occur in drowning. This Court held such evidence was sufficient to show survival for an appreciable length of time. Defendant h e r e s t a t e s t h a t Welch passes over t h e s p e c i f i c question, I n f a c t , i t d i d not "pass over i t " but h e l d squarely t h a t such evidence was s u f f i c i e n t t o show a a p p r e c i a b l e period of time." I1 s u r v i v a l f o r an W s e e no reason t o d e p a r t from e t h a t r u l i n g and f i n d no merit i n i s s u e 3 . I n i s s u e 4 , defendant claims e r r o r on t h e p a r t of t h e t r i a l c o u r t i n r e f u s i n g t o perinit t h e i n t r o d u c t i o n i n t o evidence of the w i l l of decedent t o e s t a b l i s h t h a t p l a i n t i f f was t h e s o l e b e n e f i c i a r y of h e r husband's e s t a t e . The reasons given were t o show t h e i n t e r e s t of t h e widow a s a witness and t o a i d defendant i n h i s argument on damages. W s h a l l n o t dwell a t e length on t h i s i s s u e , because i n t h e context of t h e t r i a l t h e The w i l l could n o t possibly i n t e r e s t of t h e widow was obvious. have made i t more obvious. Neither do we s e e any p r e j u d i c e on t h e defendant's argument on damages. F i n a l l y , a l s o i n i s s u e 4 , defendant urges e r r o r i n t h e t r i a l judge's r e f u s a l t o permit t h e defendant t o r e c a l l t h e p a t h o l o g i s t f o r t h e purpose of having him express an opinion t h a t t h e death from drowning was instantaneous. W e have already shown t h a t t h e witness had t e s t i f i e d t o t h e s e f a c t s and h i s opinion. Thus, no e r r o r appears. Having considered a l l of t h e i s s u e s presented and f i n d i n g no e r r o r , we a f f i r m . ............................ Associate J u s t i c e ------------------------a------- Assaciate J u s t i c e s .
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