Messmer v. Ker
524 P.2d 536
Idaho
1974
Check Treatment

*1 substantial, competent evidence 524 P.2d 536 Hartke, accident kidney Joseph industrial in the loss of MESSMER Leonard Plaintiffs-Respondents and Cross- loss of equivalent was 75% Appellants, to 135 entitling him hip, leg thus at one opinion, my compensation. weeks KER, Defendant-Appellant Keith M. respondent offered evidence Cross-Respondent. ap- overcome sufficient surety was No. 11369. case. prima pellant’s facie standing in long a rule of has been It Supreme Court of Idaho. compen that in workmen’s jurisdiction this July 16, 1974. cause, cases, findings as to sation sup disability must origin of extent professional medi some at least

ported by Dist., Irrig. Pioneer proof. Bottoms v.

cal 487, Idaho John Cascade, P. son v. Boise Simplot R. (1969); Cornish

2d 751 J. Fertilizer, 383 P.2d exem probably best This rule statement Oliver

plified by this Court’s Forests, 245 P.2d Potlatch stated: wherein Court (1952), expert, requires scientific and it

“Where cause,

professional skill to determine disability, proof of a

origin and extent skilled, professional must be

thereof at cited).” 73 Idaho (Cases

witnesses. at 777. per- be a purport

The Guides claimant’s condition

sonal evaluation of in the the standards contained

nor were to the individual health con- related

Guides is not like the sit-

dition of claimant. This Cascade, found in v. Boise

uation Johnson held that a writ- supra, wherein Court report opinion

ten rendered substantial, competent

physician evi- Rather, this is devoid of

dence. situation

professional opinion.

Lacking “substantial, evi- competent upon

dence” ren- decision could be respondent surety,

dered in favor of

order of the Industrial Commission should

be reversed with enter an instructions to awarding compensation

order to the claim- upon only

ant based competent medical

testimony record, i.e., testimony physician,

of claimant’s Dr. C. E. Groom.

McFADDEN, J., concurs. *2 7:40 a. at about of the Salmon River

Fork passengers Injured in the were crash m. Hartke, Joseph Leonard Messmer cross-appellants. plaintiffs-respondents and Messmer and Hartke On June *3 in- personal this to recover for filed action against juries in the crash sustained Lum- Ker and Ker and Max Son appellant summary Upon for Company. ber motion judgment, the district court dismissed Son Lumber action as to Max Ker and filed Company. and Hartke then Messmer they complaint alleging an amended guests hire passengers were for and operated in a Ker and that he the aircraft grossly negligent and manner careless receiving injuries. which resulted their alleged Messmer Hartke further and con- the accident was also caused sumption intoxicating beverages by Ker (12) flight within twelve hours time and such a manner as to have contribut- ed to or to have accident. caused the answer, liability and set forth Ker denied a five certain affirmative defenses. After December, 1972, day trial jury before a jury against found Messmer and Judgment according- Hartke. was entered ly. timely

Messmer and for moved verdict, judgment notwithstanding the or trial, present- alternative for a new ing grounds numerous for the trial. new The trial court Messmer and denied Hartke’s motion for judgment notwith- verdict, standing grant new but did Clair, Clair, St. Benjamin, St. Hiller & solely upon trial based error in In- Falls, Martsch, Furchner, L. James struction negligence. 20 which defined It Baker, Blackfoot, Martsch & for defend- is from order appealed. that Ker has ant-appellant cross-respondent. and Messmer appealed and Hartke have cross Terry Holden, Crapo, Holden, L. Kid- denying from the trial court their motion well, Crapo, Falls, Hahn & for verdict, for judgment notwithstanding the plaintiffs-appellees cross-appellants. and and a grounds new trial on the set other

forth Messmer and Hartke’s motion. DONALDSON, Justice. We turn first to negligence in August 2, 1968, On a Mooney M-20F struction granted and the new there trial airplane piloted by Ker, Keith M. defend- on. This grants Court will review such ant-appellant and respondent, cross expressly when trial court states the owned Max Ker and Son Lumber Com- grounds however, upon; relied we will not pany, crashed at the Airstrip Bernard in disturb the wide discretion of trial primitive the area near the Middle grant trial, court to a new absent a clear

showing of manifest abuse or exer- unwise elude doing nothing doing both some- Olson, cise thereof. Dawson v. thing drastically wrong. ap- Under Ker’s 295, 507 P.2d proach The instruction both carry equal situations would to the is as follows: weight deliberations, jury’s into the while necessarily the two demand different em- “You are instructed that when I use phasis. juries depend solely upon Since ‘negligence’ word in these instruc- law, the court for instructions as to these tions, I mean the something failure to do clearly instructions must correctly reasonably prudent careful and present legal upon theories which

person would do under circumstances properly have based argu- their similar to those shown the evidence. primary ments. In this case the definition reasonably say The law does not how negligence Subsequent defective. prudent person careful and would act references negligence in in- contained under those That is for circumstances. *4 topics structions compen- on other did not you to decide.” sate for the initial in error definition. trial, the the trial court new though Even jurors the received an admo- given stated that the as instruction nition to consider the instructions as a include acts of commission as an element whole, the trial court was within its discre- negligence of in- and the of such tion in ruling that the instruction error materially struction was an error law prejudicial substantial and to the de- respondents. affecting rights the of the gree required that a new trial. Evans v. Small, 448, 94 (1971); Idaho 489 Negligence these facts P.2d 1404 under Co., Banz 369, Motor 94 be in the context of would best framed Jordan (1971). Re both omission and commission. See (1965); statement of Torts 284 (Second) § Because holding of our affirming However, argues that 210.1 Ker IDJI the trial, order granting the new we must presentation necessary such is in that not also consider and questions decide further negligence can be alleged all of his acts of of may law which arise on the retrial of termed as omissions as well as commis the ; case in the district court. I.C. 1-205 § may sions. be true to an ex While this Farms, Sulik v. Valley Inc., Central 95 tent, approach set forth the such fails to 826, 521 P.2d 144 (1974); State v. necessary emphasis required by the facts as Ash, 94 Idaho 493 P.2d (1971). by is one of of this case. This illustrated airplane alleged As the negligent the acts. Messmer and challenge the tight airstrip, constitutionality it went made a turn over the of Idaho Code 21- § 212, commonly following a the airplane into stall. Rather than known as the guest statute, procedure pushing alleging the nose of correct the statute results downward, a airplane equal protection Ker ac denial of the defendant of the law. up. airplane may tually pulled the nose of the Constitutional issues be considered for As the stall. the first time appeal This manuever accentuated on if such considera is necessary can be described tion urges, subsequent Ker the manuever for proceed recovery ings in failing proper as mea to take case. I.C. 1-205. See also § However, in- description 54(c). Moreover, could I.R.C.P. sures. since the issue something 210: thus IDJI consist of the failure to do reasonably “Negligence person careful would do —-Definition ‘negligence’ doing something I use the word or the “When a which reason- ably instructions, person do, I mean the failure to use ordi- careful would not under cir- prop- nary management care in the of one’s cumstances similar to those shown erty ‘ordinary person. say or The words care’ evidence. The law does not how a rea- reasonably person sonably person mean the care a careful careful would act those under you under circumstances similar would use circumstances. That is for to decide.” may Negligence those shown evidence. question (See of law and all legal above.) dis- ate theories. In all but cases, presented cussed the issue briefs to this negligence the most intricate Court, a resolution the issue be general negligence will not sufficient- definition prejudicial. ly required outlines the standard of care. pre- As noted in the instruction negligence airplane guest nearly The statute is discussed, viously judge is to identical in both form and substance to the conduct of a reasonable man under circum- statute, guest automobile I.C. 49-1401. § evi- stances similar to those shown recently This Court found the automobile sup- dence. The facts of this case do not guest statute to be as vio unconstitutional port separate instruction on “sudden lating equal protection guarantees of emergency” and the instruction should both Constitution of the United States 51(b); on retrial. I.R.C.P. and the Constitution of the of Idaho. State 215; Illinois Pattern Instructions 12.02. Thompson Hagan, 523 P. See Irby, supra; Fawcett v. Carnation 2d analysis rejected An (1974). Company Freightlines, v. Garrett justifications for guest statute as set Buhle, Reese v. forth in Thompson, supra, indicates an Ill.App.2d N.E.2d 431 stronger even declaring case for the air plane guest statute A unconstitutional. A involving final issue the in guest airplane in an is less termi able to structions must be resolved. Instruction *5 airplane objectiona nate an ride he finds set forth the various allegations made in Moreover, centering ble. argument the parties’ the pleadings. Among these alle ungrateful around hitchhikers is far less gations were Ker’s affirmative defenses of applicable simply due to the decreased like risk, assumption of the and unavoidable ac lihood of Finally, aeronautical hitchhikers. cident. These only defenses were men as noted in Thompson, primary the bene by tioned specific name and instructions fits by enjoyed statute are insurance were given defining not them. Instruction companies, not party. the insured Finding jurors 17 told the that Instruction 15 did justification statute, no for the we there evidence, not constitute facts or but rather fore airplane guest statute, hold the I.C. § merely a recitation of what the ex- 21-212,. to be Lighten unconstitutional. pected prove to pleadings at the time the Gordon, burger (Nev. v. 510 P.2d 865 argues were filed. Ker that error oc- 1973). The instructions guest based on the curred in the failure to define defens- such statute should not given. have been New ines that he was entitled to them. Mess- Coleman, man -, v. 95 524 P.2d mer and by appeal argue cross that 541 (1974). error resulted from mentioning the defens- Also at is issue hence, Instruction 30- definition; es leaving without the A, emergency” “sudden instruction. jury meaning confused as to the of effect Although the instruction is at times useful of the defenses. The is confusion com- in involving complex cases nearly and in pounded by the “sepa- court’s mention of occurrences, usually stantaneous in rate defenses” in Instructions 26 and 27. counterproductive. struction is When con These point instructions were to the that sidering jury instructions it must be re Ker should be any liability absolved of membered that jury deluged often a is with prove he should the defenses. While instructions, numerous many of which at of Instruction 15 did not constitute tempt explain complex questions to of law. instance, reversible in error we believe We possible must balance the confusion practice the better suggested by to be that by layer upon created layer of instruction 150. That instruction recommends and necessity providing appropri- that instructions at the end of a trial Irby, special See v. Fawcett 92 P.2d instructions and confusion (1968), Spear’s for Justice discussion of concurrence. par- The order of the trial court

reciting allegations found is re- any mention of new trial is affirmed and the cause pleadings ties’ should omit proceedings for further consistent allegations supported evidence manded those respondents. The trial at the trial itself. herewith. Costs to introduced only those instructions must issue court BAKES, McQUADE, McFADDEN by the evidence before warranted JJ., concur. 51; Rosenberg Toetly, v. court. I.R.C.P. SHEPARD, (specially Chief Justice Moreover, to define the failure concurring). “assumption not error. the risk” was I concur in result reached the ma- only in cases of That doctrine is available jority my to but continue adhere views relationship a master-servant outside guest regarding expressed statute as Compensation Act scope of the Workman’s I Thompson Hagan. agree express with and in instances of contract opinion Thompson repre- Hagan now risk. party agreeing one to assume the sents the law of the State of Idaho and the nothing Irby, supra. There Fawcett v. majority conclusion of the herein extend- indicating existence of an the record ing Thompson Hagan the rationale of express Assuming arguendo contract. logical into the area of air travel is they paying passengers, respondents were reasonable.

only flight into the Primitive contracted a They expressly contract Area. “Express” flight. the risk of that

assume appropri “manifested direct

means Dictionary language.” Black’s Law

ate 1968). 4th In the absence (Rev. ed. indi any appropriate language direct and P.2d dangers to assume the cating agreement *6 NEWMAN, Jr., Through By F. Sherman correctly court flight, trial litem, New Guardian ad Sherman F. defining give instruction refused to man, Sr., al., Plaintiffs-Appellant, et Toetly, Fi Rosenberg supra. v. defense. “unavoidable define nally, the failure al., Arnold W. COLEMAN et Defendants- juris accident,” not error because Respondents. as such doctrine recognize diction does Potlatch Stobie v. separate defense. NEWMAN, Anna Marie now Anna Marie Inc., P.2d Forests, al., Kirkpatrick, et Plaintiffs Linehan, 92 Idaho Schaub Appellant, ; 233. (1968) al., W. Arnold COLEMAN et Defendants- also Messmer Respondents. in not erred trial court argue that No. 11077. notwithstanding judgment Supreme granted Court Idaho. will not That motion verdict. July com substantial the record discloses when 1974. support verdict.

petent evidence to Denied July 25, Rehearing Inc., Stores, Safeway Mann v. sit Such at hand in the case uation supporting evidence contains

record action. of both

contentions notwithstanding judgment motion for

The denied. properly

the verdict was