*1 322 back 1967 or is be an injury relates found to
injury or, alternative, injury nonrelated 1969 independent injury, be a the law progressing governs, found to continuing some The not decisions of this or other court. concern under law determine date commissioner our must award the amount of claimant’s for compensation for injury, 1, 1969, different if the occurred after injury July would be S.L.1969, Ch. under SDCL enacted by 62-4-6(21), § than would have been under SDCL 62-4-5. previously consider- majority opinion guidance offers no to the commissioner theory advanced claimant. ing If have equity we commissioner willing power set aside the release we should so hold. Absent such a holding would affirm.
ARBACH, Appellant GRUBA, ma., et Respondents N.W.2d
(232 842) (File 5, 1975) Opinion September No. 11422. filed rehearing
Petition for denied October *2 S.D., William & Sisseton, Holland of Holland Brantseg, J. for plaintiff appellant. Richardson, Groseclose, Charles B. Kornmann of Kornmann Aberdeen, D., & Wyly, S. for defendants and respondents. DOYLE, Justice.
This case involves two For the clarity, defendants. sake of we defendant, shall facts present relevant Gruba (Joanne), in the first section of this opinion. facts pertaining defendant, Eddie Gruba will II. (Eddie), presented section
I. While many facts were out in set our decision earlier *3 case, Gruba, A 1972, 591, rbach v. 86 S.D. 199 N.W.2d 697, confusion, to avoid we repeat necessary those facts to this decision.
The was when his truck injured pickup collided with car defendant, driven by The accident occurred Joanne. 15, on A 1967. summons and and complaint naming June Joanne Eddie, car, her defendants, husband and the owner as 25, were 1970, delivered May on sheriff for The service. sheriff unsuccessfully service at attempted defendants’ home and office, left word did, for them to at they which where stop two copies summons and were complaint delivered 26, May Eddie on 1970. personally remained in the car and no of the copies were delivered to her process by the sheriff. The sheriff a return completed stating that he had personally served both on May defendants 26th. Defendants immediately went to their local insurance office where Joanne delivered the papers. agent testified he promptly forwarded insurer, process however, insurance company. The denies receipt knowledge process. of this 15, 1970, On the time limitation on personal injury June actions set out SDCL expired. 15-2-14 No defendants, or answer appearance was made by filed an 18, 1970, affidavit of default September as specified SDCL 24, 1970, On 15-6-55(a). September defend- ants’ filed attorney a motion on behalf of Eddie relief requesting from default on the of excusable grounds SDCL neglect per 15-6-55(c) A 15-6-60(b)(l). simultaneous motion to dismiss or, alternative, in the to quash the service of was also process filed on behalf of A hearing on affidavit and these Joanne. motions was held on September 1970. The trial court indicated orally that the motion to and relief quash from default would be granted. 26, 1970,
On September plaintiff delivered a duplicate copy of the original process to the sheriff who served them on Joanne personally. 15, 1970, On October the trial court’s orders quashing the service and relieving default were filed. No appeal was taken from these orders.
It should be noted here that Eddie’s claim original excusable neglect based on the insurer’s failure to defend because the company failed to receive the first summons complaint. When was served personally on September it was assumed by the insurer the September 26th were the papers lost copies 25th May process that had been In quashed. addition, the October 15th order quashing service was ambiguous and could have been interpreted quashing both the May 25th and September 26th papers served on Joanne. rate,
At any there was no answer 26th September service, and plaintiff filed an again affidavit of default *4 29, on October 1970. served an answer on Joanne Joanne 30, 1970, on October which contained a denial of an negligence-, allegation unavoidable and accident the defense of the statute of 19, limitations. On 1970, November the trial court adjudged default, to be in denied her motion to set Joanne andjstruqk. aside the her answer. .default. appealed order, from this eourt, and this on the Joanne authority of Davis v. Interstate Motor Carriers Agency, S.D. 178 N.W.2d found excusable neglect in the' insurer’s second failure defend, to answer and held that should have been allowed to answer. That also opinion Joanne discussed the validity of the statute of limitations claim and held plaintiff’s cause of action to be barred by SDCL 15-2-14. a verdict court where remitted to the trial
The case was trial, a After Eddie and against in favor of was returned Joanne. by granted v. made n. o. for judgment motion limitations the statute of the grounds trial court on by the in favor of was entered her. Judgment the action against barred numerous defendants, assign- claiming and plaintiff appeals both involves those the opinion This portion ments of error. n. o. the judgment error in granting claiming assignments documents motion to produce in denying plaintiff’s Joanne’s files. insurer’s the beyond service was the second
There is no doubt defective, and, we must first service was if the period, limitations the limitations affirm, valid service within there no other being period. however, to in attempting several arguments,
Plaintiff raises first service on attempted of the validity establish either defense. a of defendant’s limitations estoppel or waiver or we find it waiver/estoppel argument, Because we adopt other, unique raises address unnecessary although Rules of Civil Procedure. about the South Dakota questions made defense counsel by that statements Plaintiff maintains raising defendant from estopped final during argument in a motion for defense later statute of limitations when same grounds was resisted on these n. o. v. The motion claimed to establish defense counsel made. The final argument as follows: is estoppel negli- be act of affirmative “There has some got as the knowing, part spouse on the gence here, his wife or her husband has claimed driver, a is not a fit person is incompetent course, and, that’s the prin- of this state highways He here with Mr. Gruba. doesn’t that’s involved ciple wife are accusations made believe that these occasion, one true. She have been careless on this may it, isn’t from way, saying but that’s a heck of long intoxicated, some- or was somebody incompetent, said, As I you give plain- of that nature. can thing *5 a verdict Gruba in whatever amount against Joanne tiff think is if to you right, you right think that’s the thing I think Mr. do. that action of Gruba is understand- able and is under all the There is circumstances. proper no reason that can’t award the as much of you plaintiff would award defendants against a verdict as both you plaintiff the verdict to you just give Gruba. Mr. Holland made reference to the fact that Mr. biased; got Mrs. that the interest they’ve Gruba they in this and that that thing, implication I to to some- you haven’t been truthful. want disclose I have to thing right, you; that disclose that only neither the Court nor Mr. Holland would be able dis- you, close to and that is the fact Mr. that Gruba and Mrs. Gruba insurance, are covered by liability and they don’t have a case, monetary interest as the plain- So, tiff has. you mind; ask to keep that they that have no to be reason here their coloring testimony matter.” any (emphasis supplied)
Plaintiff contends that defense counsel lured an unsus jury into an pecting granting award against knowing this Joanne, court had held already that the statute of limitations prevented payment of such an award. He claims that disclosure insurance was an implicit promise to the that award jury any would be that such paid, promise was made without intention of it and keeping is from estopped changing her position from that to a represented unaware of the jury limitations defense. We There agree. is no doubt presence of liability insurance ais matter likely prejudice jury. The cases reversed because a has revealed defendant’s insured status are Also, need not be legion cited. the fact that a plaintiff’s use of this information is consistently error no reason for that a holding defendant’s use of the same prejudicial is consistently statement permissible.
We are not convinced that can establish all the elements either estoppel or waiver since the reliance defendant’s statements was and not of plaintiff. believe, however, We that defendant’s conduct falls into that *6 328 we have entitled fast and loose with previously “playing
category Baldenecker, 1956, 327, the courts.” Behrens v. 76 S.D. 77 Roberts, 1940, 917; 362, v. Nyswanger N.W.2d 67 S.D. Reid, 187; 311, 244 Smith v. N.W. 60 S.D. N.W. 353. Behrens in clearly Defendant’s conduct to that analogous Baldenecker, Behrens, In one of three supra. plaintiff, sisters, had a house an advance from her mother purchased using all for The title to this practically purchase price. was in the name her property taken mother plaintiff sold, joint tenants. This first was but property eventually were reinvested in proceeds other that was taken as a property died, The mother and in her will her joint tenancy. she left sisters, in shares to the her property equal two plaintiff defendants. Plaintiff was the executrix of her mother’s appointed estate. In her to admit the will to and in her petition probate, distribution, final account and for an petition plaintiff listed as asset of the estate an in interest joint tenancy equal mother’s advance. The final decree of purchase price probate court distributed the each to the property plaintiff —one-third and her sisters. The then instituted an action her sisters to quiet title herself interest of the claiming estate in the held is property jointly inconsistent with the in Behrens of a survivorship privilege joint tenancy. court said:
“We have this anomalous situation:
In the county
court
as executrix
of her mother’s estate
represented to that court that defendants under the will
mother,
of their
had a
$5,750
two-thirds
interest
be derived from the sale of this property, and the coun-
ty court acted thereon. She is
now this court contend-
ing,
court,
as she did in the circuit
these defendants
have no such interest. This conduct falls within the cate-
gory
conduct
playing fast
loose with the courts
which we have at
twice condemned. Smith v.
least
Reid,
353;
60 S.D.
244 N.W.
v. Rob-
Nyswanger
erts,
67 S.D.
The defendant here has presented definitely prejudicial material to the jury. Whether or her not intent was to influence a verdict be that could nullified later maneuvers is legal irrelevant, for we have no doubt that such actual effect. as the plaintiff in Behrens asked two different courts of this Just state to rely defendant, two inconsistent positions, Gruba, has asked two arms of the same court to adopt positions inconsistent to her If the advantage. jury had known that this court had held the already statute of limitations to be a it, valid defense in the case before the result well may *7 different. Behrens, as the however, court in probate relied on Just the representation an that interest in the an property was estate asset, the here relied the jury implied promise that “you can the give plaintiff a verdict against Gruba in whatever Joanne amount think you right, you is think that’s the right thing to do,” and the that verdict would be covered by insurance.
Such conduct whether or not intentional cannot be allowed. n. o. in judgment v. favor of should be reversed and Joanne the jury verdict against her allowed to stand. we Accordingly, reach no decision on the denial of plaintiff’s motion to produce.
II. The second of part appeal concerns the verdict favor defendant, Gruba, thereon, of Eddie entered an order a new trial. denying Plaintiff claims the verdict is contrary to the evidence.
Plaintiff based case Eddie on the of theory He entrustment. that Eddie knew did negligent argues not Joanne license; knew, have a known, driver’s that Eddie or should have was intoxicated when she left bar before the just Joanne accident; that Eddie allowed to drive the car in an Joanne state; intoxicated and that all of these evidence of Eddie’s to negligence entrusting car Joanne.
We need only say that there is evidence to show that arrived at the bar after Eddie and him. left before He Joanne would not have she driving known was since he would not have seen the car outside the There bar. is also evidence to effect intoxicated; and, that did drink enough not to become Joanne intoxicated, whether or not she was is for possible jury 330 Furthermore, Eddie was of her unaware condition.
find
did
testimony
Eddie
not know
was
there is
is
evidence and
In cases where there
conflicting
unlicensed.
trial,
here,
as it
court
has deniecí a new
has
this'
will
trial court
We can
insufficiency
only
the verdict for
of evidence.
not disturb
is no
evidence
if there
to sustain
verdict.
competent
reverse
1922,
v. First Nat.
Mobridge,
First Nat. Bank Webster
Bank
of
335,
Plaintiff also claims
defense
counsel’s final argument
unduly prejudiced the
We have
discussed the
jury.
already
final
but we do
argument,
not reach that issue' here. Plaintiff failed to
trial;
is, therefore,
object
argument
to this
at
there
no decision of
the trial court which
review
we can
on this matter in reference to:
defendant,
Heintz,
Eddie
1959,
Gruba. See Application
188,
S.D.
The orders in favor of Eddie Gruba granting judgment for new trial Eddie Gruba denying plaintiff’s motion affirmed.
WINANS, concurs. J., C,
DUNN, J., specially. concurs COLER, WOLLMAN concur in JJ., and dissent in part part.
DUNN, Chief
(concurring specially).
Justice
I concur in the result reached in
however,
this opinion;
would reverse the judgment n. o. v. for
Gruba on the
grounds that
the statute of limitations is a personal defense and
does not
the trial
deprive
court of jurisdiction on its face and that
it may be waived at
time.
See SDCL
15-6-8(c)
Frederickson v. McIntyre,
1938,
61,
52 Ariz.
“It is true of course as a rule that
the right to inter-
the statute
pose
(of
as a
limitations)
defense is a personal
privilege of the
waive,
debtor which he may
or omit to
of,
avail himself
if so inclined.”
In his final argument, defense counsel stated: said, “As I you can give the verdict against Gruba in whatever amount you think is right, you think that’s the right to do. I thing think that *9 action of Mr. Gruba is understandable and is proper under all the circumstances. There is no reason that you can’t award the plaintiff as much a verdict as you would award against both you just give defendants the verdict to the plaintiff against Gruba. Mr. Holland made reference to the fact that Mr. and Mrs. biased; Gruba are that they’ve the interest in got this haven’t they was that implication and that thing, that you something I want to disclose to been truthful. that neither the disclose to you; I have the to right only disclose to you, Mr. Holland would be able to nor Court Mr. Gruba and Mrs. Gruba is the fact that and that insurance, don’t have they by liability covered So, case, has. I in this as the interest monetary mind; have no reason they that in that ask to you keep in matter.” testimony any (em- here their coloring to be phasis supplied) her defense statute of the defendant waived
I would hold that in in her presence statement made court by openly limitations the court and She should not jury. and in the presence waiver, relied by revoke that to permitted n. in a later motion o. the jury, relieves this court of consideration any
This line of reasoning failed to attorney object improper of the fact that plaintiff’s made they the time were defendants’ counsel at by statements object mistrial. He would have no reason to a later motion for by client’s waiver of this defense as it was to defendant’s advantage.
WOLLMAN, part, dissenting part). (concurring Justice that affirms the opinion I in that of the portion concur defendant Eddie on the verdict favor of entered Gruba, that that portion opinion dissent from entered the verdict notwithstanding reverses the judgment Gruba. trial court in favor of defendant Joanne reading jury following In his opening argument instructions, said:. counsel plaintiff’s “* * * And, these consider those facts of disinterest- testimony, Now when consider that you pay ed persons. 16, because that instruction attention to instruction § a wit- tells can consider interest that you you suit and weigh ness have in the outcome of this may you We submit testimony accordingly. of the Gruba’s does not coincide with testimony *10 testimony of disinterested who have people, people no- lawsuit; lose thing gain nothing in this Ben Sheriff, Karst and his wife and former Herbert Mundt. Plaintiffs counsel then on went to discuss matter plaintiffs injuries, the amount of economic loss and the past money amount of that counsel believed would plaintiffs ade- quately plaintiff for his compensate economic loss for his past and future pain suffering.
In reply, order, defendants’ counsel argued, that: “* * * think, The question, next to consider whether should be awarded a plaintiff * * * against Gruba. you If decide that Joanne came about (the accident) because of this act of inadver- time, tence on her at part you that then should find for the plaintiff and against Gruba. We didn’t come Joanne in here to Court tell today to that Mr. Arbach you hasn’t been We injured, either. are not that. claiming ** Let’s a assume for you moment that do allow the to recover Gruba. You would Joanne fix, course, then have to the amount of that money the plaintiff Gruba, would recover against up to Joanne * * *” $17,167. Defense counsel then went on to minimize, attempt quite legitimately, plaintiff’s economic loss.
When read in the context remarks made by plaintiffs counsel his opening argument and in context the earlier portion of his own argument, statements made defendants’ as attorney set forth in the majority take a opinion different statement, meaning. said, “As I can you give plaintiff a verdict against Gruba in whatever amount you think is right, think you the right do,” that’s thing to nothing a more than legitimate appeal by defense counsel the jury exercise fair its judgment, hopefully in manner would in a result conservative verdict or, for plaintiff at the very outside, a in favor of Gruba. verdict can’t
Likewise, you “There is no reason the statement verdict would award you much of a as award the *11 to the the verdict you just give defendants both Gruba,” a comment in of support was legitimate against Joanne be that established reqúires negligence that the law argument the before he can be held liable for injuries a husband part on the of and of his automobile spouse’s negligent operation caused by so far defendant Eddie an as principle that this was important Gruba was concerned. set forth in the argument remaining portion by than an defense nothing attempt was more
majority opinion the should jury that reply argument counsel to plaintiff’s had in the outcome of interest that the defendants consider the I would that defense testimony. agree their weighing the suit in fact insurance coverage not have the of interjected should counsel states, lawsuit; cases correctly our majority the the opinion into insurance has no liability held that the fact of consistently have However, a action. plaintiff’s in trial of negligence the part made, and I time the argumént did not at the object counsel to raise the question is now late would that too hold prejudice; the that each of the jury number 11 informed
Instruction a fair of his own defense was entitled to consideration defendants “* * * case You will decide each defendant’s that stated a lawsuit.” There is no as if each were separate separately, did not this in the that the follow jury indication record Indeed, in the favor by affirming instruction. Gruba, we implicitly acknowledging Eddie defendant It from did follow instruction. follows this jury even if defense any prejudice not have suffered could described as fast fairly “playing counsel’s could argument court,” a characterization that is unwarranted loose with the entirety. when counsel are read their arguments entirely It was for defense proper try counsel to restrict the verdict to that defendant on behalf he thought whose he had on secure stronger legal ground which to relief. post-verdict counsel fact recognized Plaintiff’s that defendant Gruba her might ultimately prevail defense of statute of limitations and to the accordingly argued jury rebuttal that the should jury return a verdict against both defendants.
The majority opinion states that the result well have might been different had the known jury that this court had already held the statute of limitations to be a valid defense the case at hand and that the relied jury upon implied promise that verdict against Gruba would be covered insurance. This seems imply (1) that the would not jury have followed the instructions of the court had known they about the statute defense, limitations did (2) not follow the instructions of the court. I would both reject of these proposi- tions.
What I have said above also applies theory of waiver *12 as in expressed Chief Dunn’s concurring opinion. Justice on which argument on was prevails appeal to the trial presented shortly court after the trial. I would give the trial court’s decision this rejecting argument great weight, as did it from one who had had the coming of vantage point the hearing arguments of counsel in their full and perspective context.
I in join Coler’s dissenting opinion. Justice COLER, in (concurring part, dissenting part). Justice I would affirm the trial court both in the sustaining jury for Richard the finding Arbach and n. o. v. for Joanne Gruba. I with agree the Chief that it should be decided solely Justice the question of jurisdiction the court over the person of! however, I Gruba. do not agree, that she in any has
Joanne
manner waived
question
the
jurisdiction by
and
appearance
in trial of the case.
participation
This
not the effect proposed
rule,
SDCL
when
This
15-6-12(b)
adopted.
while it did away
1939, 33.0817,
with
rule SDC
did not
prior
do
with
away
the
§
at all
right to
times save
defense
lack of
the
over a
jurisdiction
party. See
following
Revisor’s Note
SDCL
15-6-12(b)
Erection, 1972,
Crossman v.
&
Contractors
86 S.D.
Rigging
Defendant,
Gruba, did everything
The case of a court misinforming well stand for situation may opinion record to but there is nothing a of fact question have there been believing may court into mislead trial with agree service on Gruba. timely proper Justice amount certainly could the conduct here not Wollman that with the court. fast and loose” “playing dismiss, at one motion to court granted Had the trial made, of in the error complained of the several times find might and on which the Chief the majority opinion Justice defense and that act of never have occurred waiver would waiver, a counsel, deny not relate back to should it was made. timely motion legitimate al., DIST.,
CUSTER IND. SCH. et al., Respondents DIST., v. HOT IND. SPRINGS SCH. et Appellants N.W.2d (232 838) *13 5, 1975) (File Opinion September filed No. 11533.