*1 Junge, and Hiene Lavonne JUNGE Appellees,
Plaintiffs McLaughlin T. JERZAK and F.J.
John a/k/a, McLaughlin
Company,
Schultz, Inc., Corporation, A Minnesota Appellants.
Defendants and
Nos.
Supreme of South Dakota. Briefs on March
Considered on 29, 1994.
Decided June Office,
Roger Ellyson, Ellyson Law W. Watertown, appellees. plaintiffs and Wiles, Bartron, Bariron, Rylance Greg R. Watertown, Holgerson, for defendants & appellants. *2 objec- all The overruled
WUEST,
gence.”
court
Justice.
tions.
and the
John Jerzak
P.J.
Defendants
Jerzak)
(hereinafter
McLaughlin Company
during
reveals that
The record further
the circuit court’s order
appeal
closing arguments, counsel for Jerzak made
(herein-
Junge
Hiene
plaintiffs’ LaVonne and
jury including
certain statements to
affirm.
Junge) a new trial. We
gambling:
following comments about
plans began
[the
time of
believe
[I]
FACTS
Junge’s finan-
accident]
to solve Mrs.
driving
Jerzak was
his
On October
problems
her
cial
as well as
husband’s-
employer’s pickup truck east on Seventh Av-
slots,
Junge
playing
as
presently
Mrs.
(cid:127)
Watertown,
Dakota.
enue Southwest
out, feverishly,
figure
as I can
near
lane, put
stopped
the traffic
Jerzak
often as she can....
have ex-
[W]e
up, apparently
track into reverse and backed
posed
gambling problem,
Ladies and
as to maneuver the
position
to
vehicle so
money
give
play
to
to
Gentlemen. So
space.
parallel parking
truck into a
pickup
only make the
the machines would
situa-
time, Junge
approximately
At
the same
tion worse.
preparing to turn
onto Seventh Avenue
east
objected
Junge
to these com-
Counsel
parking
lot.
as she exited
sustained;
ments,
objection
pass
Junge observed
truck
the Jerzak
course,
already
jury
heard these
had
driveway. Junge pulled out into
parking lot
Additionally,
statements.
counsel
lane and
the Jerzak
the traffic
then observed
stated:
lane;
stop
up
and back
in the traffic
truck
thus,
way
Junge stopped.
only
Junge
The
you
you
op-
I’m
telling
And
that
an
pending collision
could have avoided the
portunity
today, Ladies and
here
Gentle-
Junge
quickly
back
would have been
men,
wrong
to start
control
with
what’s
Junge was unable to
up into the
lot.
country’s economy.
collision,
avoid the
and the Jerzak truck
Junge’s objection to this statement was sus-
Junge.
guilty
pled
backed into
tained. Counsel for Jerzak continued:
driving
charge of
under the influence
alco-
Gentlemen, you
and
Ladies
do have an
(DUI)
conjunction
hol
accident.
opportunity
these
here to see that
claims
Junge
alleging
that
complaint
filed
Jer-
opportu-
aren’t
You do have an
awarded.
opera-
reckless in the
zak was
nity
payment
types
on these
stop
here
negli-
tion of his motor vehicle and
opportunity
of claims. You do have an
collision;
sought
gence caused
and
dam-
message
people
here to send
to other
personal injuries
property
ages for
and
dam-
try
trickery, through deciding
through
who
age.
denying
allega-
Jerzak answered
they’ve got
opportunity
very
well-
negligence,
pled
tions of
the affirmative
rehearsed, presenting
their
Junge
guilty
defense that
you
they
spend
that
the rest
so
can
of their
slight,
Junge’s recovery.
barring
more than
know, gambling?
life—I don’t
held to a
At the close of
Trial was
all
objection
commentary
line of
to this
evidence, Junge
for a
moved
directed
overruled.
negligence,
verdict on the issue of Jerzak’s
which motion
court denied.
returned a verdict for Jerzak.
instructions,
Thereafter,
During
settlement of
moved for
not-
proposed packet
withstanding
ground
on the
that
of instructions which
the verdict
proposed
presented
supplied to
The court
the evidence
at trial was insuffi-
counsel.
justify
contributory
negli-
to instruct the
on the
cient
such a
plaintiff Junge.
contrary
Additionally,
law.
gence of the
The record
verdict was
urging
objected
contributory
moved for a new
three
reveals
(1) Insufficiency
possible grounds:
negligence instructions on the
(2)
verdict;
to justify
improper
“no
to substantiate that
evidence
there was
contributory
closing arguments, appealing
jurors’
negli-
there could have been
(3)
passions
prejudices;
improper
I.
THE
WAS
GRANT OF
TRI-
NEW
contributory negligence.
instruction
AL
THE
WITHIN
COURT’S DIS-
CRETION?
hearing,
granted Junge’s
After a
trial, stating
motion for
two
urges
that the circuit court abused
people
its order:
That reasonable
could
*3
granting
its discretion in
a new trial for two
not differ on whether Jerzak violated SDCL
First,
argues
reasons.
that the court
(2)
32-30-20;1
jury
that the
should have
improperly granted a new trial when it did so
negligent
been instructed that Jerzak was
advance,
a
for
reason that
did not
granting
a matter of law. From this order
judge
that the
erred when he “did not con-
appeals.
new
by
fine himself to the reasons advanced
Second,
parties.”
argues
STANDARD OF REVIEW
properly
error of law—failure to
instruct the
previously
have
set out the
We
standard to jury
properly preserved by
not
Junge.
—was
applied upon
be
this court’s
review
disagree
points.
on both
grant
trial court’s
of a motion for new trial:
granted
argument,
“Whether a new trial should be
As to
first
Jerzak’s
it is
judicial
left to the sound
our
by
discretion of the
view that the reasons noted
the court
court,
granting
trial
and this court
for
will not disturb
the new trial are within the
the trial court’s decision absent a clear
ambit of the
for new trial advanced
showing
by Junge.
Junge urged insufficiency
of abuse of discretion.” Kusser v.
of evi
Feller,
619,
verdict;
support
621
dence to
the court stat
Falls,
City
people
Accord Simmons v.
Sioux
ed that reasonable
could not differ on
374
“If
the trial whether Jerzak violated SDCL 32-30-20—
injustice
by
implying
court finds an
been
thus
done
the evidence was insuffi
jury’s
remedy
grant
jury’s
lies in
cient to
verdict.
urged
trial.”
improperly
new
Id. at 632.
deter
also
that the
in
“[W]e
structed;
mine that an
abuse of discretion occurred
the court stated that
‘judicial mind,
only if no
have
of the law should
been instructed that Jerzak was
view
particular
and the circumstances of the
as a matter of law.
case,
reasonably
could
have
reached such
”
disagree
We also
with Jerzak’s con
Weyrens,
conclusion.’
Jensen v.
tention that the court must “confine” itself to
(S.D.1991)
261,
(quoting
N.W.2d
Estate
by
parties
the reasons advanced
243,
(S.D.1990);
Pejsa, 459 N.W.2d
considering
propriety
a new
Smith,
(S.D.
Estate
mons,
1. SDCL 32-30-20 "The driver of a with other traffic. violation of this may not back the vehicle unless such section is a Class 2 misdemeanor.” safety movement can be made with and without added). Thus, (emphasis §§ Id. a court New Trial Am.JuR.2d 33-36 added). motion, (emphasis a new trial on its own by parties. reasons not an advanced disagree We also con Jerzak’s early stated: this court pre properly tention that failed to serve the error instruction of the view We are of the that where trial 15-6-59(a) language pro Pertinent mistrial, court is satisfied there has been a vides that an of law based error “must be justice, miscarriage growing or a clear detailed, upon objection)!]” out of a failure dis- itself to Junge objected to all office, instructions charge the duties of its contributory negligence, objections and these power has inherent a new trial Frey were the court. overruled See any time ques- reason thereof at while the (S.D.1992) Kouf, 484 N.W.2d 866-67 him, *4 pending tion of a trial is new before (holding that where to even counsel failed may grant and on this a new instructions, propose alternate of trial, the record application by without or motion ei- sufficiently preserved; objection eiTor is wholly party, upon ther his own motion. sufficiently judge possible informs the of er Johnson, Larsen v. thereby allowing ror make to (1920).2 876, recently, N.W. More this corrections). It would have been fruitless that, court “[U]nder stated SDCL 15 — 6— Junge request commanding to an instruction 59(d), court, initiative, may a on trial its own the was mat as a order a new trial for reason it for which law, ter of the when court made clear that it might granted a new trial on of motion Junge’s contributory intended to on instruct Murdock, party.” Case v. negligence. holding comports This hold that of a new trial was guidelines in authority: found other court, within the sound discretion of and has, by A trial court virtue of its inherent ruling. affirm its powers, authority upon its own to trial, set aside a verdict ISSUES ON NOTICE OF REVIEW any statutory least in the of absence limita- Junge two raises issues on re- notice of upon tion power regard.... its this view, which purposes we address for the of may grant where, by trial court a new trial providing guidance on retrial. misapplication reason of prin- of the law, ciples in consequence or of some I. WAS THE ISSUE OF CONTRIBU- inadvertence, party it is satisfied that a TORY NEGLIGENCE IMPROPER- properly present- not had his or cause LY SUBMITTED TO THE JURY? ed, though exception even or was taken misapplication stated, attention called in the court party inadvertence. ... Where a Junge’s objections— files structed the —over grounds, motion for a new trial on Junge’s negli stated on the issue contributory grants gence. decision, the trial court new trial The court’s memorandum motion, incorporated stated the court which grant was into the order in legal contemplation grants that, new trial states also “The Court its own motion. finds that there was sufficient evidence of court, motion, 2. The Larsen also stated: pending, "A trial action its own without provisions outside section Rev. application parties, of either of the when power Code no doubt has an inherent plain disregard by there has been grant a new trial when of the view that court, instructions or the evidence conduct of the trial was such as clear to amount to satisfy in the toas the court miscarriage justice." mistrial or a clear misapprehension verdict was rendered under a (emphasis 43 S.D. at ed). N.W. at 877 add- instructions, of such or under the influence of by provid- The statute referenced passion prejudice. ed: R.C.1919, § 2558. vacated, jury may The verdict of a also be granted by a new trial the court in which the go parking lot exit the and enter the street as let that issue permit. Junge asks that determine traffic would at 580. Jury.” we regard. (Campbell) erred in The defendant backed out of his whether stationary parking stall and collided with the propounded facts According to the Klarenbeek vehicle. Id. Klarenbeek brief, Junge pull out started to his brought an action based on saw Jerzak’s onto Avenue she Seventh personal injuries. for her recover Id. driveway. go truck had Klaren- After both sides rested at nearly out motion for a on the beek’s directed verdict into the lane of traffic she saw Jerzak’s liability appeal, issue denied. Id. On Junge stopped her lights brake come on. court stated: vehicle, around if she could and turned to see up back into the lot so that Jerzak’s Here, stationary. Klarenbeek’s vehicle was truck not collide with her vehicle. would waiting to She was enter traffic.... Her notes in his Jerzak further brief duty to maintain a was fulfilled. lookout react,” “had five or six seconds but hand, Campbell, engaged on the other to do so. Jerzak continued unable automobile; duty up back and struck vehicle. just maintain an effective lookout was be- Moreover, totally ginning. the record is present only “A those trial court *5 any indicating that devoid of evidence by way of which issues to the instruction contributorily negligent, Klarenbeek was competent in rec- find stopping proximate ... or that her was a (citations Frey, ord.” N.W.2d at 868 of this accident. cause omitted). Frey, In we further noted: ‘Contributory negligence is conduct cognizant of rule that when a We are responsible, amounting to plaintiff which stationery moving [sic] vehicle strikes duty imposes which the law breach of object place, proper which is not out of its upon persons protect themselves from negligence case of is estab- prima facie which, concurring cooper injury, and [Citations omitted.] lished. ating negligence actionable for which with case is find that evidence in this We responsible, to the defendant is contributes clearly minds onesided that reasonable so as a cause.’ injury complained proximate no than that could reach conclusion other 424, 432, 160 Stofferahn, 83 Starnes v. S.D. failing to Campbell in (1968). ‘In the absence adequate was the sole maintain an lookout knowledge contrary, one who is and it is proximate cause the accident in conducting himself accordance that if contrib- equally clear there was ordinary may assume care standards utory negligence part of Klaren- exposed harm from that he is not to be beek, proximate causal connec- it had duty to avoid breach of others owe omitted.] [Citation tion with accident. City Can injury to him.’ Rikansrud v. Therefore, the trial court we hold that 592, 607-08, ton, 116 N.W.2d have Klarenbeek’s should (1962). of liabili- a directed verdict on the issue Frey, (citing N.W.2d at Williams only ty and submitted to the Co., Contracting Ins. 358 N.W.2d v. Dee-Bee damages. question (S.D.1984)). v. San See Howard Klarenbeek, at 581. 299 N.W.2d born, 796, 797 483 N.W.2d pled that Jerzak by either noted a case not cited We
This court —in
charges
acci-
guilty
to this
to DUI
related
party
previously addressed a situation
—has
vehicle,
while
He was
moving into a station-
dent.
where a
backed
stationary.
sole
ary
Campbell,
vehicle was
Jerzak’s
Klarenbeek v.
vehicle.
appears to
should
unanimous
be that
This is a
contention
of his
out
Klaren-
reacted faster and backed
opinion
Justice Dunn.
In
written
(Klarenbeek)
up.
beek,
to back
stopped way
that he could continue
plaintiff
so
Junge’s vehicle was
lot,
waiting to
admitted
in
of a
Klarenbeek,
argument.”).
closing
in
counsel
proper place.”
“not out of its
Anderson,
comments
provides
we stated
at 581. Our statute
mistrial,
justify
“unless
where one
may
granting
not back his vehicle
that one
would
safety.”
In the
requested.
movement can be made with
441 N.W.2d at
objected
case, although Junge
As did the defendant
present
SDCL 32-30-20.
—with
Klarenbeek,
duty
sustained,
had a continuous
over
objections
and others
Although
effective lookout as
backed
requested.
maintain an
ruled —no mistrial was
II. COULD THE COURT HAVE HENDERSON, J., specially. concurs THE OF JER- USED COMMENTS DURING CLOS- ZAK’S COUNSEL JJ., AMUNDSON, concur in SABERS AS GROUNDS ING ARGUMENTS part part. and dissent TRIAL? A NEW FOR GRANTING HENDERSON, (concurring spe- Justice previously detailed some of cially). during closing counsel comments Jerzak’s *6 Kem, recently released Treib v. 513 In the Judge Timm argument. found (S.D.1994), 908 the defendant backed amounted, N.W.2d “to a calculated course comments driveway into traffic and collided out of his unprofessional, was of of misconduct which ver- passing with a motorist. Via directed fensive, the bounds of trial and exceeded dict, negligent. the defendant was found advocacy.” agree.4 v. See Anderson (S.D.1989). However, Johnson, plaintiff that found 441 677 N.W.2d contributorily negligent. Trial court Degen Bayman, 90 S.D. See also trial or (noting thereafter declined to N.W.2d judgment notwithstand- ruling “re a motion for a earlier that the case be court’s ing This Court affirmed the improper made the verdict. tried because of statements ques- During present counsel for Jerzak started to Despite case is con- the assertions Kern, trary majority opinion gambling Junge regarding in Treibv. LaVonne hab- tion (S.D.1994), opinion debts, it is this author’s N.W.2d the facts of Treib well as of her husband. its and as those distinguishable are from the objected. presence Outside Treib, gave present a number of facts case. proof jury, made counsel for Jerzak an offer contributory negligence: rise to issue debts, regarding Junge’s gambling habits and he was aware of Kern’s tenden- Treib testified showing purpose for the one of the “motiva- looking. cy without to back out of trying Junges ... that the are tions for this claim taking [medication that he was Treib admitted money gambling pick up their for fatigue to the could cause and drowsiness that] Judge debts.” Timm ruled that such dangerous point operate that it would be "irrelevant,” and that "the financial condi- Although Treib knew Kern’s automobile.... something ought parties tion of the is not running pro- pickup had a and that Kern agree inquired proceeding.” We into in this be looking, backing pickup pensity without ruling; further note with the trial court's precautions did not take to avoid an acci- attempt improper that it was for counsel dent. regard- closing arguments inject information into present In the 513 N.W.2d 910-12. gambling, the court had when Klarenbeek, well as in 299 N.W.2d was not admissible ruled that such information stationary "backing up” collided with place. into evidence. proper vehicle in its SABERS, (concurring part Both and I dis- trial court. Justice Sabers Justice dissenting in part). agreeing that the evidence did not sented jury’s finding plaintiffs support the that the except I concur I that would affirm the slight,” than alleged was “more trial court on submission of the issue of compared negli- to the defendant’s contributory negligence jury. to the If gence. react,” Junge “had five or six seconds to but so, question failed to do there is a for the negligence- Before this Court is another contributory negligence proxi- as to backing where the case “has clearly mate cause. Klarenbeek is distin- right way penalizing while [Jerzak] guishable. majority’s position current is [Junge] unfortunately being way in the clearly contrary majority’s position to the Treib, a reckless at 918 driver.” Kern, the recent case of Treib v. (Henderson, J., dissenting). As 32- (S.D.1994), as written Justice Amund- provides, 30-20 “The driver of a vehicle joined by son and Chief Justice Miller and not back the vehicle unless such movement Justice Wuest. safety can be made with and without inter granted, really Since new trial is there fering Although with other traffic.” it would issue, good reason especially to reach this grant Junge’s not not opinion going say if the conference withstanding the the trial court wise “assuming essentially the facts are the same ly acknowledging ordered a new on retrial[.]” as a matter of law. time, however, agrees This our that a AMUNDSON, J., joins writing. special new trial under this set of facts is warranted. question I concur.. There is no of fact that legally negligently drunk defendant was against his vehicle the flow of traffic. (S.D. Kriens,
DeBerg v.
1967). majority I likewise concur with the Dakota, Plaintiff STATE issue should Appellee, substantial, presented be No *7 supports original credible evidence con v. tributory negligence Fajardo verdict. v. MARNETTE, II, Richard A. Defendant Cammack, Appellant. Junge’s alleged contributory negligence No. 18369. slight” compared not “more than to Jer He zak’s reckless behavior. Estate Crow Supreme Dakota. Jensen, (S.D.1992); Nu N.W.2d 186 Considered on Briefs on March Quam, gent v. N.W.2d 371 (1967). Rather, Junge right had the to as Decided June sume that Jerzak would exercise due care Stober, obey the law. Musilek v. right rationale prevailed this time. upheld, call for a new trial has been unnecessary I find it to address Issue II of concerning
the Notice of Review another rea- upholding
son for by Judge Timm
mentioned
order.