*1 expressly quoted exception jail.” The prisons the from inmates withdraws Michigan voting. Under absent deprived of therefore, appellant is law, right by transac- no constitutional complaint. forth set
tions Court
affirmed. Bronson, R. DUFF and Elizabeth
Jennie Appellants, PAGE, Appellee.
H. L.
No. 15186. Appeals States Court of Ninth Circuit.
Oct. *2 Elko, Nev., Wright Eardley, Gold- & Reno, Nev., Hill, water, Her- & Taber Idaho, appellants. Burley, for Bedke,
man Reno, McLaughlin, Nev., Rex Pike & City, Hanson, Utah, Lake J. appellee. Salt HAMLEY, ORR and Circuit Before Judge. GOODMAN, Judges, District Judge. HAMLEY, Circuit plaintiffs Two of the three in this auto- appeal judg- from a mobile accident case jury- defendant, States District Court for the on a entered ment for Duff reimbursement presented here Nevada. verdict. automobile, damages to his examination relate voir dire *3 services, evidence, to and of his wife’s consortium jurors, failure loss of exclusion giving Bronson testimony, one of Mrs. Duff and Elizabeth strike certain instruction, personal general damages request- special for four and to Page injuries motion in accident. the denial of instructions, and ed damages, against Duff for counterclaimed for a new trial. spe- general wrecker, and and for his 31, on December The occurred accident damages resulting personal in- from cial Highway 1954, of stretch on an east-west juries which he sustained. of west 40, miles fourteen U. S. Wells, about day, m. that At 10:00 a. Nevada. and defendant found for The process remov- Page of H. in L. was the complaint,. against plaintiffs on the all ing bank a snow from Duff, against automobile in: and for defendant and highway. While the, of off the north side $6,816.58, counter- on the amount wrecker, engaged had his work he in this Judgment con- in entered claim. was standing length, in in seventeen feet north, formity and. Duff with the Mrs. verdict. westbound, lane. traffic or appeal. Bronson Elizabeth mile of four tenths For a distance The first of error relates Page point east, where from the voir jury. dire examination of the straight, working, was was trial, Prior to the counsel for per 3.34 cent upgrade of with an requested that the trial ask the was The road rise. of a moderate crest oil-surfaced, jurors, dire, question: on voir this “Do variously described was but you any own or stocks bonds in the morning “slushy” being “icy” on or as Casualty American Co.?” The re- was the road question. The width in question. fused to ask this including seven feet, about forty-three gravel The plain and rule is oil that the mixed and half feet personal eight tiff in injury acting side, and in on the north shoulder good purpose faith for The south side. on ascertain feet shoulder ing qualifications visibility. good jurors, No clear, day and not with purpose informing for the devices flares, flags, them that or there highway. is insurance evi- in The placed entitled: were interrogation prospective jurors, red whether toas conflict dence is in regard in, with to their wrecker light interest or con cab of blinker comp with, indemnity nection time. insurance operation in at the views,, range There is a wide anies.1 Duff R. Elizabeth Mrs. Jennie and appropriate way proceeding westerly pas- Bronson were sengers go interrogation. about such automobile in an owned by Duff A. husband of Mrs. driven John We do not reach the merits of came over crest Duff. vehicle This specification, however, this unless there proceeded down hill the west- reason believe that the refusal to erly grade, appel- with it collided question preju ask this on voir dire was lee’s wrecker. action, dicial. Trial court however er Joining complaint, Duff his may in one be, ground roneous re diversity passengers instituted this two versal unless such action is ineonsisteni 1332) (28 in the United justice.2 § U.S.C.A. suit with substantial Courts of re- following in collected 1. Sec cases in “No error either the admission or subject: 56 A.L.R. annotations the exclusion evidence no error 860; 404; 1454; 95 A.L.R. A.L.R. 74 any ruling any- defect or order inor 1330. 105 A.L.R. thing by done omitted the court or parties granting; Rules Federal of Civil Pro Rule U.S.C.A., cedure, setting reads as follows: new trial or for aside a verdici higher
view have a “impregnable function than to be which confronted driver technicality.”3 citadels of he reached the hill. crest question But the asked of this Appellants say in that the their brief re-examination, objection to which an pro- company insurance posed named sustained, was not relevant to question voir an interest dire has inquiry. “Tell was: nothing find case. We customary us what speed would be support record How- this statement. obviously over the hill.” This ever, assume, purposes dis- we will improper question, and the company in- cussion, that had an *4 properly it was The court sustained. more in jurors may or terest the one that deny prove appellants did not the of have bondholders the been easterly slope that the hill was of the company. or stockholders of that relatively higher dry, justifying thus a Amer The was not that told speed prudent than would be on the west- any Casualty Co., ican or insurance other erly slope. dire, company, involved. was On voir specifications One of the of error jurors gave none the assurances that argued vigorously most sustaining relates to the previously had heard of the case. them objections ques to certain jurors com not know that this did If long tions of a asked who had witness pos their pany was involved towing experience operator as an ownership that of bonds or stocks sible truck in the area the accident where company have influenced could not occurred. One these was hold that We therefore verdict rendered. hypothetical in nature. intended It was interrogate jury in the expert opinion to elicit the of the wit prejudicial. requested was not manner ness as to whether it would have been practicable re of error Another to remove the automobile re plac to the cross-examination from the snow bank without lates trailer by ap ing highway. called a witness The the wrecker on examination driving up objection pellants. was This witness trial court sustained hill, past hypothetical moderate question, that west side of the operator subject inquiry place tow truck matter of driver, appellants’ knowledge, working, when in the of common area testimony. crest westerly, expert over proceeding opinion came did not call for cross-examination, this hill. On of the testimony appropri Expert (to which opinion expressed the witness which is one when the factual issue ate made) objection that no ordinarily jurors be able to not would traveling fast.” “too was then driver assistance. without technical determine Cir., Hooks, trial court 10 The & Co. v. E. L. Farmer hand, of this 547, asked other F.2d 553. On the 239 Arguing that subject inquiry which is one re-examination. error, appellants they wanted knowledge that one state would enable common bring subject proper had no decide, that this witness out not to knowledge dry Atchison, probably condition testimony. expert v. of the Schille Ry. Co., Cir., highway side of 8 222 Topeka east Fe Santa & icy compared 810, condition trial court to the for the hill, 814. It is F. 2d modifying vacating, Improvement Kavanagli, otherwise or of Administra- 3. or order, by disturbing unless re- Exorcise of Justice tion Criminal appears 217, (1925), action 11 such A.B.A.J. to take Judicial Power 222, fusal jus- with substantial Kotteakos inconsistent referred every stage States, 750, 1239, of the at 60 S.Ct. U.S. 328 tice. disregard any error or proceeding must L.Ed. proceeding does not which defect rights par- the substantial affect ties.” discretion, necessary park “1. exercise of a sound That it is testimony expert the wrecker main trav- determine whether appropriate truck on the highway. particular portion circum- under eled of the case. stances “2. That wrecker must occupy than more made The determination here reasonably necessary under the inquiry particular was not that this circumstances. not, testimony calling expert would approaching “3. And that traffic appeal to ordinary circumstances, under fully must be warned the obstruc- involving discre as one abuse us guards, by lights, flags, argue Appellants, that give tion. appellee practical means in the event the Page permitted to had been circumstances are that an ordi- point, testimony opinion expert narily prudent person would therefore should and that means such suggested.” produce permitted counter have been ing testimony If this kind. same argument fact, view, would sub- In our this instruction was were a *5 patently to stantially unfair It evi- would seem to the same effect as the merit. permit expert concerning usage present testi to and which one side dence custom to mony point then particular and The re- on a to introduce. produce deny to the testimony, was there- other side fusal to receive this evidence rebutting expert prejudicial. fore not subject proper a that it Appellants the trial contend that opinion evidence. denying to their motion erred in record, strike, unresponsive in Examination as an as and appellants’ law, counsel appellee’s it was state indicates that correct statement opin- cross-examination, who, drew the his wreck ment on the that witness stand Being Page. them- testimony emergency from It also ion vehicle. er was an urged Page’s getting rejecting responsible in selves erred the court that appel- record, testimony opinion into the a requested that instruction that position contend to in no lants are is not tow truck wrecker truck or emergency argue, produce re- play Appellants fair butting entitles them vehicle. testimony otherwise, of the same kind. appellee contend does not and clas wreckers are not that tow trucks or specification of Under this same emergency Nevada. in vehicles sified as complaint error, of the action is made Laws, 4350.1 Compiled § See Nevada sustaining objec trial court in (1943-1949 Supp.). question same a asked of this tion to usage. concerning proper and While would been custom it testimony es purpose was to and strike this the re- usage quested instruction, and was the custom we are not that it convinced tablish prejudicial area, pulling onto wrecks that do so in entirely jury fully highway, keep correctly truck tow error. The rights including highway, if shoulders, instructed as to off the duties done, operator performing and, possible; if could not in this be a tow shoulder, appellee in keep tow truck on the engaged of a task which kind pave place possible, it on the but to at time of the It if accident. necessary. jury presumed followed is to be that ment if so, If it did did these instructions. it In instruction No. was told findings, upon extent, its not base operator of a that wrecker truck theory that the tow truck was an the emergency being used to restore wrecked vehicle entitling operator its vehicle may highway park the wrecker highway privileges. special portion public main traveled length time, for a reasonable another Under urged following error, that under the conditions: it the trial erroneously my they opinion to merit. In do not de- painstaking asked of a witness serve the careful and atten- flags usage given putting by Judge out custom and them HAMLEY. Appellants day delays judicial pro- In ceedings devices. when existed, prove highlighted, they may offered to a custom that are be necessary materially prompt effect when it is that lessened more road, summary warn- disposition appeals a wrecker to block are that ings signs put out precedential such as flares are unmeritorious. The value wrecker; decision, particularly on each side that in an auto- mile, diversity a hill half warn- there is within a mobile this, accident hill; ings placed insignificant. are crest of the A affirmance bare more, slippery, or and icy, road is that below without warning signs put at would, my out opinion, are be sufficient. greater wrecker. distance from the view, our an abuse In it was not proof. reject this offer of discretion to justified in conclud- The ing court was trial being proof, so offer of that closely facts of with the identified opin- expression to an amounted negli- question of ultimate ion on the proof cus- than gence, rather this, usage. than More tom *6 Frances Richard W. TERRILL display how the hard to see Terrill, Appellants, warning flags could devices or other accident, proximate cause been a Carpen Margaret CARPENTER, L. A. H. highway was truck the tow since Petroleum Central The South ter and appellants’ driver plainly visible Appellees. Corporation, In- mile. four tenths a distance No. 13045. gave above, 26 referred No. struction complete state- a correct Appeals Court of States under circumstances ment Circuit. Sixth put out operator should which a 23, 1957. Oct. flags devices. or other error, remaining specifications re- except for the motion lating denial giving trial, relate a new give four and the refusal instruction Our examination proposed instructions. given re- and those instruction light of all instruc- fused, read given, no us to believe that leads
tions prejudicial committed in error no There was instructions.
matter denying the mo- of discretion abuse a new trial.
Affirmed. Judge
GOODMAN, (concur-
ring). I in the result. think I concur by appellants
points without raised are