*1 Whеn so viewed the did indicate to the against alleged purpose a clear defend the cause of action proceeding the South Dakota his answer to the when he served Michigan plain- suit. This was than more fourteen months before judgment. tiff for its default In be- these circumstаnces we appeared lieve defendant had this action was entitled prescribed notice. To hold otherwise seems to us unfair and a circumvention the intent of the rule. herein,
For the reasons stated the order of trial court is reversed.
HANSON, J„ WINANS, JJ„ P. and BIEGELMEIERand concur. RENTTO, Judge, sitting WOLLMAN, Assoсiate dis- qualified.
DOYLE, participating.
BEHRENS, NELSON, Respondent Appellant
(195 140) N.W.2d (File Opinion February 29, 1972) No. 10924. filed *2 Fuller, Mitchell, Morgan appellant. & for defendant and Bleeker, Bleeker, Mitchell, Shandorf & D. R. for respondent.
HANSON, Presiding Judge. Following plaintiff, motor a accident Mario J. Behrens, brought damages personal this action to' recover for in- juries damage defendant, property from Nelson. Ellen M. The $9,000 jury appeals awarded a verdict of and dеfendant judgment from denying and from the order motion her judgment notwithstanding the verdict or in the alternative new trial. p. about m.
The accident occurred on 1968 at 2:00 October graveled day County. opening on a road in It Miner was the pheasant season. Plaintiff left in the in his 1965 Mitchell afternoоn hunting companions trip. They Ford sedan with were three on road-hunting proceeding and had been north an oiled road on leading they to the town of Fedora. When reached intersection graveled right they proceeded road at a turned east turning speed per Shortly they of not over 25 miles hour. after east spotted pheasant ahead the north fence Plaintiff row. coasted up alongside his car on the road bird. Within seconds thereafter his car hit from the rear car. defendant's *3 Defendant, child, companions, with two and mother had рroceeding graveled living been east on the road to friends visit vicinity on a farm in the stopped of the accident. Defendant her automobile at the intersection with the oiled road and waited plaintiff approached while proceeded and turned east. She then graveled across plaintiff the intersection and followed on the road good Visibility about half mile. plaintiff's was and car was sight. day never out of dry. The clear was and the road was plaintiff When defendant realized had in the road ahead left, right she her brakes and turned but the front of her causing injuries car collided with the left rear of car damages complained and of. Defendant's car left skid marks for point a distance of 75 impact feet before the of and her car came beyond to a point 160 feet of complaint collision. The alleges negligent (1) (2) respect to be speed, to (3) lookout, (4) accident, failure to turn to avoid the and to season- ably apply her brakes.
At the trial testify. was the first witness to Dur ing the of course his direct examination he was asked to relate the conversation he had with Mrs. Nelson the accident. replied: He exchanged- "We then asked her if she had driver's —I
license; one; yes. she said She if yes. asked I had I said exchanged cars, We information of about makes in- agreed point that at companies, surance call an invest- to damаge have would that we was such igating officer." jury, court, presence out then moved
Defendant injected question of in- grant plaintiff had a mistrial to prejudice. coverage to defendant's his own surance alleged as error. of such motion is The denial defend general evidence a unwarranted rule that It is a injury against personal liability inadmissible is ant insured is ordinarily relevant not is Such and death actions. evidence jurors verdicts favor may to render influence issue and amount to enhance plaintiffs insufficient evidence Insurance, Showing Anno., Liability ToAs оf such verdicts. See 761. A.L.R.2d coverage present question insurance action the In the relevant, Surprise competent, issue. material not During justify oral claimed to its admission. inadvertence argument he admonish- this court stated before counsel coverage testimony. his ed insurаnce his client not mention subject this, only In we can assume insurance view injected coverage deliberately by plaintiff intentionally *4 influencing purpose jury in his cir- the sole favor. The existing Pikovsky, cumstances not unlike those in Zeller are 729, grant in to S.D. 268 N.W. which court held the failure constitutеd mistrial reversible error. alleged may One other error be asserted on re trial merits consideration. This to relates defendant's contention negligence guilty was as a matter of law which proximately caused or contributed to the collision his failure (1) stop highway to observe and determine if he could on the safe (2) signal (3) ly, stop, stop to his intention to to and on the main portion leaving roadway required traveled without passageway contrary 32-26-1, requirements clear to of SDCL 32-30-1 32-30-2.
By he could his own admission did not determine if stop safety operatiоn any be if other vehicle would stopping. affected his He did not see automobile defendant's any impact pheasant at time before the and from the time the spotted ahead he never looked the rearview to see if mirror regard any there cars him. were His conduct in this negligence clearly constituted a matter as of law. light warning
Plaintiff he asserts flashed his brake as a to gradually stop. defendant as he to came His on direct regard examination this follows: "Q you put your Did on brakes? Yes. I
A would have the brakes —going car but we were
Q give signal you your stop? Did signal. watching A I made no hand I wаs the bird. looking, preparing stop, and I assumed that — lights give adequate the brake would jury you applied your Tell the you how O brakes when prepared stop? period
A At a slow
because we had seen the
at
bird
probably maybe
seventy-five
distance
to a
feet,
stopped
hundred
slowly
we
the car then
—
up
so that we would coast
to the bird rather
than
stop immediately
I couldn't
put
I couldn't
pressure
on the brake or we
would have
prior
got
bird,
to the time that we
so we had
stopped slowly,
gradual
stop."
came to a
*5
Hallstrom,
riding
Mr.
who was
car,
рlaintiff's
the front seat of
was asked to describe the manner
applied
which Mr. Behrens
replied: "Well,
his brakes. He
you
I can't
exactly.
tell
All I can
say
years
years
and I know we come
is we've road-hunted for
gradual
stops
always
this before. You
done
because we've
gоes."
brakes,
pheasant
slam on
From such
it
is difficult
to infer
evidence
warning signal
pumped his brakes as a
to defendant of his inten
stop
completely
presence.
tion to
as he
this
oblivious of her
As
Brende,
326,
court
observed
Wallace
67 S.D.
N.W. 870.
applied
"when brakes
are
in such
thаt
im-
a manner
mediately
application
their
the car is struck
rear,
from the
the mere fact that the car
equipped
appliance
with this mechanical
does not
negligence.
absolve the driver of the car from
Had this
observation,
proper
driver made
hе would have
stopped
known he could not have
his car in the manner
probability
in which he did without
of some accident
occurring,
injury
or
opinion
and we are of the
failure to make
present-
this observation
under
the facts
negligence.
Krog-
ed constituted
testimony
Under
stad, himself, his
car was struck the minute he
Quite obviously
the brakes.
under
these circumstances
appliance
the mechanical
equip-
which the car was
ped
purpose."
served no useful
"pulled
right
Plaintiff also testified he
over to the
side of the
However,
road and
pictures
the car."
position
of the
impact
standing
the car after the
show it
a northeast
-southwest
angle
portion
in the
roadway.
traveled
of the
This is verified
Deputy
of the
County
Sheriff of Miner
who invest-
igated
shortly
the accident
after
its occurrence. When asked
sitting
where
car was
whеn he arrived at
the scene
replied
the accident he
"It was in
portion
his traveled
of the
just
road,
slight
with a
turn to it." There is no evidence
to show
impractical
it was
park
or
his car off the main
portion
highway
traveled
closely
possible
or as
right
edge
hand
obligated
curb of the road as he was
do.
See
Service,
Haase v.
Willers Truck
72 S.D.
In the event the evidence statutory stand- mentioned failure conform to the above to have the issues of conduct defendant would be entitled ards conforming evidence in narrowed to such sub- an instruction stantially requested form as and re- by the court: fused Plaintiff,
"You, jury, are instructed that the Mario Behrens, negligence guilty of as a matter of law for stopping if his his failure to ascertain motor vehicle paved improved portion public highway on the of the safety stopping, could be made with before so for his signal vehicle, failure to his intention his to so twenty his failure to leave a minimum of foot clear- ance to the left of his vehicle while the same was parked upon improved por- and main traveled highway; public regarding only tion of the issue negligence contributory such is whether or not it was proximate injury cause of the sustained and whether slight comparison or not it was more than in negligence defendant, any." of the if Reversed and remanded for a new trial. WOLLMAN, JJ„
WINANS and concur. BIEGELMEIER, J., part concurs in part. and dissents in DOYLE, J., participating.
BIEGELMEIER, Judge (concurring dissenting part part). opinion grants
I concur with the insofar as it a new trial be- apparent cause of deliberate statement insurance. agree part which, cannot opinion with that condition- trial, giving on
ed new evidence at the directs of the instruction my Nо such for this conclusion. reasons set out and should state writing required in presented to the court as instruction was 51(a), provides: RCP *7 writing requests be
"All for instructions shall in duplicate, presented court on or the and shall be before the time fixed settling instructions. [*] [*] [*] requested by All are refused the court instructions which by copy. court on the numbered shall be endorsed so copy requested An additional numbered of each instruc- opposing tion shall be furnished to counsel." binding, such, state, upon rules These "are the law of this as they apply." requiring the courts to Reasons strict con- Waggoner, appear opinion Heyl thereto formance in the of 58 420, 375, forcefully S.D. 236 N.W. where the court condemned giving required. of oral instructions where written instructions were present page transcript In the case on 137 of the appears:
"MR. pro- MORGAN: I would ask leave of the сourt pose orally, provide you instructions and will with a — copy as soon permit can if the court would me to put orally. them in permit you."
"THE COURT:
I'll
propriety
so-called,
The
proposed,
of this
but oral
instruction is
presented
to the court and
recently
we so held as
as Deсember
17, 1971,
177,
in State v. Greene. 86 S.D.
"INSTRUCTION jury driver instructs The court starting, stopping, highway, or turn- before line, ing movement first see that such direct shall from a operation safety; whenever be made can movement, may be such affected other vehicle signal give plainly of such to the driver visible he shall A to makе movement. of his intention such other vehicle given signal required means shall be either herein approved by an mechanical the hand and arm or signal electrical device."
"INSTRUCTION NO.
*8
any
park
person to
or leave stand-
is
for
It
unlawful
unattended,
ing
vehicle,
upon
any
or
whethеr
attended
improved
portion
any
paved
of
or main
the
or
traveled
highway,
practical
park
to
or
leave
such
when it
standing
paved
improved or
of the
or
main
off
vehicle
highway.
any
portion
no
shall
of the
In
event
traveled
vehicle,
standing any
park
person
or
whether
at-
leave
unattended,
upon
highway
unless a
tended or
clear
upon
twenty
unobstructed width of not less than
feet
or
highway
portion
opposite
main traveled
of such
such
standing
passage
be
vehicle shall
left
free
other
thereon,
a clear
of suсh
or unless
view
vehicle
vehicles
may be
obtained from
distance of two hundred
feet
highway."
in each direction
such
Further,
deputy
who
of the
sheriff
wide,
only
road
that it
21 or
feet
so that
measured the
was
was
only
stopping
this
car
is six feet wide on
road would
of a
which
legislature
intended
15 or 16 feet.
do not believe the
leave about
prohibit
stopping
an
on a
21 or 22 feet
to
automobile
road
wide,
applying
this
to such a
would be the effect
statute
road,
stopping
that
of this car for a few seconds was within
nor
standing"
"park"
must
the words
or "leave
of SDCL 32-30-2. It
statute,
separate,
part
that
cited
now
be remembered
32-30-1,
that
SDCL
section
44.0324 which included
SDC
practical
park
parking
or
such
to the
"when it is
leave
referred
standing
improved
paved
or
off of the
main traveled
event,
portion
highway."
of the
In
his automobile was closе
right edge
highway,
of the
and the evidence shows there
ample
pass
plaintiff's
room for
left on this
bright, sunny day.
pictures
appears
From the
it
there was room
pass.
for two cars to
The cause of this accident was not the
car,
position
plaintiff's
stopping
but whether the
оf it was
the cause of
See
the accident.
comment
the court in Griebel
Ruden,
v.
61 S.D.
"But car stood where defend- stood, assuming ant claims it that a third car did west, approach from the defendant is still without excuse running plaintiff's (stopped) into car. There was at pavement least fifteen feet of and 4 to 5 feet of shoulder plaintiff's south of car. This allowed an abundance of room for truck and the car from pass the west to each interfering other without car." approaching, Here there no were cars had about 15 clear, uninterrupted, feet of dry pass safely. road to WERF, Respondent VANDER ANDERSON, Appellant
(195 145) N.W.2d (File Opinion No. 10974. 1, 1972) filed March