*1 Appellant objectionable. cannot now be complain. questions Uydene these heard to Both of Roger M. AMDAHL and D. Am dahl, at the and answers should be admissible as Guardians Ad Litem for Darin Amdahl, Minor, retrial this matter. Ap D. A Plaintiffs and pellants, We reverse and remand. SARGES, Jennifer R. Defendant HENDERSON, JJ., and MORGAN Appellee. and FOSHEIM, J., Retired concur. No. 15291. WUEST, C.J., part in concurs Supreme Court of South Dakota. part.
dissents Considered on Briefs Nov. 1986. MARTIN, Judge, sitting Circuit for 6,May Decided J., SABERS, disqualified. J., MILLER, been of the Court at the time this
member Court,
action did was submitted participate.
WUEST, (concurring Chief Justice
part dissenting part). concur, except my appellant opinion
I objection question her
did not waive
concerning malpractice because counsel objection taking
did not make the at the deposition. SDCL 15-6-32 sections
(d)(3)(A) (d)(3)(B) designed pre- are laying trap by failing
vent counsel from object opponent easily when his could objectionable
have corrected the matter raising
and then the matter at trial when opportunity longer to correct is no
available. answer could been corrected
never have time of
taking deposition. majority As the observes,
opinion correctly South Dakota adopted
has not the ultimate issue rule. I objection at trial.
would sustain
639 Evans, and, therefore, Hoy Davenport, gence Carleton R. of it prejudicial was er- Smith, Hoy, Hurwitz & and James L. Staff ror to exclude the evidence. Evans,
Atty.
Davenport,
of
Hurwitz &
A trial
rulings
court’s evidentiary
Smith,
Falls,
appel-
plaintiffs
Sioux
for
correct;
are presumptively
has
this court
lants.
duty
no
to seek reasons to
reverse.
Fuller,
Woods,
Timothy J. Nimick of
reviewing the
ruling,
trial court’s
we must
Smith, P.C.,
Falls,
Shultz
de-
&
Sioux
for
determine whether the trial court abused
appellee.
fendant and
Behrens,
its
Shamburger
discretion.
v.
(S.D.1986).
minority operator’s or lack of an court saw exclude evidence on a Opple Ray, 208 Ind. 195 N.E. license.1 confronted lack We are simple issue of with an abuse discretion. there abuse of discretion or not? It Was persuaded majority are rule We appears prejudicing the trial court feared Therefore, on this is the rule. issue correct jury against party who did not have trial court did not we conclude that *3 Rather, the trial court a driver’s excluding abuse its discretion the evi- upon case should decided believed the question. dence in negligence rather than a violation of a fail- judgment The of the trial court af- Although ure to obtain a driver’s license.2 firmed. inquiring prohibiting appellant from into appellee’s failure to have a valid driver’s MORGAN, J., FOSHEIM, accident, license at the time of the trial Justice, Retired concur. appellant legitimate- ruled that court could cover, examination, ly probe by way of HENDERSON, J., specially. concurs experience appellee. of SABERS, J., dissents. trial, Throughout opening from the through ap- statement the examination of MILLER, J., not been a pellee, driving experience appellee of this member of the court at the time fact, thoroughly was canvassed. court, did action was submitted to the jury appellee heard evidence that had driv- participate. question only driveway en car in in the operated other than HENDERSON, and had never the car (specially concur- Justice Further, driveway. re- ring). examination appellee gravel on a vealed had driven road no This was noncontact accident where only accompanied by parents. when physical evidence existed to either confirm appellee That had taken a course respective litigant’s or refute the version of complete education but did not the last two transpired All “in the facts. of the events classes, brought further was evidence be- country” city.” and not “in the The jury fore the to enable the to learn of only parties appel- witnesses were the appellee’s experience and education in driv- passenger. lee’s The did not return a ing. All this in order to is mentioned unanimous verdict but did return a verdict trying that the trial court was not to reflect appellee resolving after tre- favor of appellant’s cut case short mendous conflict in the evidence and obvi- ques- directly going dence—evidence ously weighing credibility of the wit- driving competence. tion of statements, oath, concerning under nesses’ happened. how this accident Surely, a of a driver’s license violation se, evidence, se, law, per should not be Believing that the evidence of a lack of simply negligence. There has to be license was evidence which was substantial- trial causal connection between the viola- ly prejudicial probative, than some 12:63, out, (1986); majority opinion points long- Law Torts at 680 4 T. Shear- § 1. As the Redfield, standing majority rule states "the mere lack of a on the Law man & A. A Treatise incompetent 685, (rev. license is immaterial and driver’s in Negligence Zipp ed. C. § at 1622-23 determining of the acci- whether at the time 1941). guilty operator in the dent the operation motor vehicle." Am.Jur.2d of the statutes, *4 against driving license, without a as fol- complete had rienced driver and failed to lows: Notwithstanding, her driver’s education. against in her favor in held this noncon- 32-12-22. Prohibition tact, country-road involving young accident driving without license—Misdemeanor. people at person, the wheel. No any ... shall drive motor upon highway vehicle a in this state un-
SABERS,
(dissenting).
Justice
person
less such
has a valid license as an
operator
provisions
under the
of this
Gruba,
322,
89
Arbach v.
S.D.
232
chapter. Any person convicted for a vio-
(1975),
N.W.2d 842
the South
Su-
Dakota
guilty
lation
this section
be
shall
preme Court stated:
Class 2 misdemeanor.
It
in
is settled law this
state that
safety
justi-
violation of a
unless
negligence per
If it is
se to allow an unli-
excused,
negligence
fied or
is
per se.
why
censed driver to drive a car
isn’t it
per
negligence
se for an
driver
Id.,
unlicensed
330,
846,
N.W.2d 7
Bothern
se,
negligence
not
driving
Even if
(1967).
S.D.
Torts 20.2 ed. young defendant was driving highways Where car is entrusted to an unli- on the of this state even driver, censed or him- where defendant though enough she had not cared to obtain license, self drives it without a a similar question presented ... did the harm A ch. 19-12 relevancy review SDCL on license, result from the want of a or admissibility of evidence favors of the ab- (more accurately) because of the risk of sence of a driver’s license. SDCL 19-12-1 unskilled stat- defines “relevant evidence” as “evidence sought prevent? ute If the car was having any tendency to make the existence driven with all the skill and care the law any consequence fact that is of a requires, proceed then the did not harm probable determination of the action more risk; if negli- from such a the car was probable or less than it would be without driven, gently then it did. The further the evidence.” SDCL 19-12-2 states May then arises: the want of part that “all relevant evidence is admissi- license be considered as some evidence ble, except provided otherwise Con- that unskillfulness contributed to the ac- statute_” stitution or SDCL 19-12-3 say cident? Some courts no. But this provides relevant, “although effectively deprives the victim of if excluded its value is benefit, case, in a civil of a statute con- substantially outweighed by danger cededly passed part protection. for his ruling prejudice, issues, Nor does the unfair theoretically seem confusion of *5 legislature sound. The misleading jury, by has decided that the consideration of general safety requires activity delay, time, undue waste of or needless to be limited to those who can presentation cumulative evidence.” demonstrate at least spe- a minimum showing There is no in this case that the cial skill. It is fair to assume that the probative value of this relevant evidence unlicensed as a class likely are far less outweighed was substantially by the dan- than those licensed to have the skill for ger prejudice. of unfair required. which a license is And it is “ ‘[Prejudice’ damage does not mean the certainly true that when the unskilled opponent’s case that results from attempt do, what it takes skill to some of legitimate probative force of the evi- intangible go up factors that to make dence; rather, it refers to the unfair likely lack skill are far more than not advantage capacity that results from the any mishap to have contributed to persuade by illegit- evidence to Frequently they occurs. ways do this in imate means.” prove; moreover, that are hard to what Shell, State v. Iron 336 N.W.2d likely evidence there is the matter is (S.D.1983), Wright quoting C. & K. Gra- be in the proba- defendant’s hands. Both ham, Federal Practice Procedure and therefore, bility policy, and call for the (1978). Here, 5215 at 274-275 this evi- rule that breach of a if defendant, prejudiced dence have all, plaintiff it is unfairly; only prejudice but not prima should be facie evidence that it is unfair excluded under SDCL 19-12-3. ‘proximate any injury cause’ of ensues, added) (emphasis arguments advanced the defend- Id., at 112-113. arguments ant to exclude this evidence are properly made to the rather than recognized importance
The trial court “majority to the court. The effect of the relevancy and of this evidence and tried to majority opinion rule” advanced damaging minimize the effect of its deci- justice harmful by allowing plaintiff to the administration of inquire sion long-term it competency experience. It because shows inherent seems to letting plaintiff prevents that’s like me into the distrust for the them ring with one arm tied knowing behind his back. from the full truth. In the short- term, prevented plaintiff it from fair civil trial.
Accordingly, I dissent. BRAUNGER,
Paul A. Plaintiff Appellant, Snow,
Jack SNOW June Appellees.
Defendants
Nos. 15341. Court South Dakota.
Argued Jan. 1987. May
Decided
notes
such
”[m]ost
2. Prosser
1023,
Highway
at 184
§
Automobiles
Traffic
applicable
automobile drivers
as those
...
Southampton,
See Dance v. Town
only
intended
have been construed as
for the
(1983);
N.Y.S.2d
Mills v.
A.D.2d
Park,
public against injury
protection of the
at the
Wash.2d