*1
210
the judgment
The court concludes that
judgment court was v. it on the differing theory, is affirmed BARSNESS, Dale Julian expressed basis of the views herein. Defendant-Appellant. Judgment respon- affirmed. Costs No. 13486. Appellant’s attorney dents. request is fees on denied. Supreme of Idaho. Court BAKES, J., DONALDSON, J., C. 14, May concur.
SHEPARD, J., partici- sat did not but
pate.
BISTLINE, Justice, concurring. specially case, present urged
In the respondent argued of the U.C.C. to However,
the trial court. Hence I concur.
it necessary to comment on the statement
by replete that “case Court law holding
decisions a decision of correct, on an
lower court is but is founded ap- it will on theory,
incorrect be affirmed
peal This state- upon theory.” the correct only goes, as it
ment is correct insofar well
which is a bit short. There is another complete parties
established and rule upon
will be held to the theories in the court.
cause was tried lower Silver Co.,
Syndicate, Mining 101 Inc. v. Sunshine 226, v. (1979); Frasier 79, (1968);
Carter, P.2d 32 92 Idaho 437 504, Stucklik,
Christensen v. Mead, Frost 86 Idaho (1967);
155, Spi- P.2d 834 Robinson (1963).
cer, 86 Idaho P.2d 844 emphasize ought again
must that this Court differ- affirming theory find itself on a
not where that used court from the trial theory presented
that different is a rule corollary
the trial court. It on a theo- ought this Court not reverse court,
ry advanced the trial never Court, most recent urged
not even in this Lamb v. example of which was glaring
Robinson, P.2d 276 *2 e., i. existing,
circumstances
a
felony
traveling in
progress, was
excess of the
limits within the
posted speed
lights
flashing
its
but not sound-
displaying
Upon
approach
its siren.
the
of the
vehicle,
did not drive
emergency
Bareness
righthand
to
side
possible
as far
the
stop
emergen-
did
the
the road nor
he
until
Rather, Bareness
passed.
vehicle had
cy
oncoming
turn
a left
in front of the
made
a collision resulted.
emergency vehicle and
emergency
ve-
driver
the
Whether the
for
regard
the
driving
was
hicle
49-606,
awas
safety
persons,
of other
I.C. §
the trier of the
by
resolution
question for
upon appeal.
not be disturbed
fact and will
Likewise,
of whether Bareness
question
the
Bareness,
Dale
pro
Julian
se.
oncoming
or
have seen the
saw
should
Gen.,
David
Leroy, Atty.
H.
W.
Howard
question of
emergency vehicle
likewise
Carsman,
Gen., Boise,
Deputy Atty.
for
the
for
trial court.
fact
resolution
plaintiff-respondent.
I.C.
argued
Bareness
at
trial
49-645,
emergency vehicle
permitting an
§
SHEPARD, Justice.
signal,
a visible
to utilize an audible or
Defendant-appellant,
Bareness,
Dale J.
the Boise
Code which
conflict with
charged
was
and convicted of violation of
an
allegedly requires both
audible and
I.C.
49-645 for
yield
failure to
to an
Assuming such conflict ex
signal.
visible
authorized emergency vehicle. That stat-
ists,
provisions
the
of a
ordinance must
provides:
ute
to
of the state statute.
Id.
yield
“Upon the
approach
immediate
of an au-
2;
49-581,
I.C.
Const. Art.
§§
thorized emergency
making
vehicle
use of
judgment affirming
court
the
The district
an
or
signal,
audible
visible
meeting the
is affirmed.
magistrate court conviction
requirements
49-606,
of section
Idaho
Code, the driver of every other vehicle
J.,
BAKES,
McFADDEN and
C.
yield
shall
the right-of-way and shall im-
DONALDSON, JJ., concur.
mediately drive
a position parallel to,
to
BISTLINE,
Justice, dissenting.
as close
possible to,
the nearest
edge or curb of the roadway lawful for
magistrate
the
It was admitted before
parking and clear
any
intersection and
police
below that the
car involved here was
shall stop and remain
position
in such
the
speed
police
the
limit.1 Since
until
the
emergency
authorized
vehicle
vehicle,
car was
emergency
an authorized
”
* * *
passed.
added.)
(Emphasis
driving
I.C. 49-606 allowed
officer
On
the facts and
to
impunity,
inferences
car
so exceed the limit with
arising therefrom are
(1)
construed in a man
provided
endanger
“he does not
life
ner most favorable
upholding
deci
or property,”
49-606(2)(c),
I.C.
he
sion
Mundell,
trial court. State v.
66 operates
vehicle with
“due
158 P.2d
24A
49-606(4).
C.J.S.
persons,"
of all
I.C. §
Criminal Law
viewed,
49-645,
So
I.C.
convicted
Bareness was
record here indicates that an authorized
of violating, requires
yield
drivers
(a
car),
vehicle
police
due to the
authorized emergency
“meeting
car,
police
police
1. The evidence shows that the
car
itself
continued on a distance
impact h.,
p.
an estimated
approximately
feet,
of 52
54 m.
energy
until its kinetic
braking
feet,
after
fully
some 130
expended.
knocked
appellant’s
truck,
pickup
van into a
49-606,
49-606(3)
section
allows an
requirements
authorized
”
. .
police
. .
vehicle
Consequently,
disregard
where it
traffic laws
was not
meeting
or dis-
proceeds
ablare
either with sirens
not be
guilty
both,
Barsness could
flashing
plays
light, or
*3
violating I.C.
§
the
that
requirement
Code
adds
§ 10-3-4
city
emergency
within
limits
Boise
City
An examination of the Boise
Code
light and use
display
flashing
must
both a
shows that the officer here did not meet the
Simply
signal,
an
such as a siren.
audible
49-606,
e., was
of I.C.
i.
he
fit
go
of
has
to
put,
City
the
Boise
seen
not operating
emergency
the
vehicle with
enacting citywide
the
in
further than
state
the
The
for
of others.
operation
the
safety regulations to'govern
Code,
4(c),
City
exempts
§ 10-3—
ex-
fast-moving
of
vehicles. An
observing speed
vehicles from
determining
amination of the rules for
“only
limits
when the
any
driver of
said
state and
whether conflicts exist between
sig-
vehicle while in motion sounds audible
inexorably leads to
municipal regulations
bell,
whistle,
nals
siren or exhaust
is no conflict here.
the conclusion that there
be
and
the
may
reasonably necessary,
when
to
may
“No
stated as
generalization
be
equipped
lighted
with at least one
authorities
the results obtained in the
lamp displaying
light
a red
blue
visible
or
”
the solu-
with
since
atmospheric
dealing
problem,
under normal
conditions ...
.
this
added.)
tion
constitu-
(Emphasis
depends,
part,
The enactment of Boise
in
on local
statutes, and
author-
provisions,
Code 10-3-4
not without
tional
on local
XII,
2;
ity.
forego-
Id.
I.C.
the
especially,
Const. Art.
in the absence of
49-582,
50-314;2
has
Voyles
the
been
ing, upon whether
§§
Nampa,
authority
of
to enact
granted specific direct
(1976).
long
purposes
as the
for
to enact
attempts
So
such ordinances or
valid,
the
are
and
or
city ordinance
enacted
broad
general,
implied,
them under
so
does
conflict
long
the ordinance
powers....
charter
law,
effect
with state
the ordinance
the
no
are
there
agreed
“It is
well
that
fairly
Taggart
County,
of
v. Latah
law.
na-
general
of a
obstacles
constitutional
Here,
purposes
legislature
prevent
ture which will
clearly
10-3-4 are
or
powers
similar
conferring police
from
valid, being
insure that emer-
designed to
in re-
municipal corporations
powers upon
limit
speed
vehicles which exceed
gency
also within
subjects which are
spect of
performance
in
their
take reasona-
duties
princi-
laws. These
provision
state
quali-
ble
to insure that
their
precautions
respect in
ples have been observed
laws
exemption
obeying
fied
from
traffic
or-
Sunday observance
liquor regulations,
life
endanger
property.
does not
or
dinances,
regulating and
and ordinances
controlling va-
gambling,
suppressing
sum-
majority’s
with
agree
cannot
conduct, and deal-
disorderly
and
grancy
conclusion that
the Boise ordinance
mary
matters as
Although
with
I.C.
such miscellaneous
conflicts
the statute.
“(v) Adopting
regula-
provides
part:
other
traffic
such
49-582
in
I.C.
specifically
by this
tions as are
authorized
“Powers of
local
The
authorities. —
title.”
title
not be
to
of this
shall
deemed
part:
provides in
I.C.
50-302
prevent
respect
local
authorities
ordinances, by-
“Cities shall make all such
highways
jurisdiction
streets and
under their
laws, rules, regulation [regulations] and reso-
and within the
exercise of
reasonable
laws
not inconsistent with the
lutions
police power from:
may
expedient,
in addi-
state
Idaho as
be
granted,
special powers
act
tion
in this
“(m)
Prohibiting
regulating
use of
or
good
peace,
government
and
heavily
by any-class
maintain
kind
or
traveled streets
”
corporation
. ...
incompatible
welfare of
with the
of traffic
to be
found
traffic;
provides
part:
50-314
normal and
safe movement
power
to: control
“Cities shall have
streets,
pub-
“(u) Prohibiting
limit
avenues and
the traffic on
of ambulances
drivers
”
limits;
places
lic
....
from
maximum
nuisances, regulation
activities
dogs,
program
CBS
Minutes on
Sixty
“[T]he
public
thoroughfares,
9, 1980,
on the
streets and
November
...
[revealed]
including the
motor vehi-
speed at which
‘hot
12,000
there have been an estimated
thereon,
may
operated
public
cles
be
United
pursuit’
year
crashes a
in the
peace
good
Am.Jur.2d
order.”
States, that such crashes have resulted
Municipal
at 410-11
Corporations
injuries,
deaths and
numerous
(1971) (footnotes omitted) (emphasis add-
striking an
recognize
some policemen
ed).
pay
bystander
high price
innocent
is a
but,
apprehending
fleeing suspect
above,
As
forth in
Idaho has
set
note two
‘damned if we do and damned
feeling
specifically empowered
regulate
its cities to
don’t,’
we
would ‘rather be damned
municipal
flow traffic within
bound-
take
for not
and thus
doing
doing.’
than
specific
aries. Where there
has been
*4
omitted.)
(Footnotes
grant
up
of such
be
the chase.”
power, we
slow to
should
conflict,
find a
no actual
especially where
short,
error
In
I feel that the
is in
Court
conflict exists. No actual conflict exists
City
summarily striking
in so
down Boise
here
may easily
because
vehicles
need
Code
There is a compelling
10-3-4.
with
comply
both Boise
10-3-4
City Code §
for the
and it
not conflict
ordinance
does
Biswell,
and I.C. 49-606.
81
See Hobbs v.
I.C. §
778,
917,
473
(N.M.App.1970)
N.M.
P.2d
920
Code
City
Boise
Once it is decided that
(“The fact of
regulation
double
does not
law,
the effect
10-3-4 has
an examina-
in
result
municipali-
withdrawal of the
consequences
tion of
the context
its
within
ty’s authority to regulate. An ordinance
required.
undisputed
of this
It is
duplicate
may
or complement statutory reg-
Bare-
police
that the
vehicle which rammed
ulations.”). Sound reasons
support
city
ness was
limit and was
requirement
exacting
which is more
than
e.,
“running silently,” /.
did not have its
statutory law in this situation: Traffic den-
going
required by
siren
the Boise
sity in urban
greater;
areas is
there are
Code.
obstructions;
more visual
greater
frequency of
traffic sig-
intersections and
long
It has
been held
that violation
suggests
nals
opportu-
that there are more
positive statutory
negligence per
inhibition is
nities for serious
city
accidents. The
se,
evidence of
merely prima
and not
facie
added
simply
requirements
to the statutory
Smith,
328,
Kinney v.
95 Idaho
negligence.
in order to accommodate the more demand-
Larson,
(1973);
91
Riley
508
v.
P.2d 1234
ing circumstances
present
which are
when
831,
(1967);
The stricter Anderson control of cy Co., 64, operating limits within was Commission examined in 319, Kuzmics v. 256 Santiago, (1962); Brixey Craig, Pa. v. 49 P. 288 35, 389 Super. (1978): A.2d 587 applies municipal 152 This rule regula-
“More than 500
well as
Americans die
over
ordinances as
statutes and
1,000 sustain major injuries
year
See,
g.,
each
e.
Frazier v.
Pac.
tions.
Northern
of rapid police
result
of law-
pursuit
Co.,
(D.Idaho
F.Supp.
1939).
28
20
This
Ry.
breakers, most of whom
guilty
only
are
application
emergen-
rule has proper
where
traffic
pursuit
minor
offenses ...
in
one
cy
affirmatively charged, by
vehicles are
fatality (and)
five leads to a
in
traffic
statute,
“due
duty
acting
with the
only
percent
one
was
of the cases
some-
regard
safety
persons.”
of all
In
one in
car wanted for
crimes.”
violent
that which
re-
determining
constitutes due
40,
Id. at
Since there is being police vehicle here
operated in violation of 10-3-4, that, I would hold as a matter of
law, being vehicle was not driven police
“with of all per- 49-606(4).
sons” as required Since not vehicle did meet be
of I.C. cannot said to Barsness by failing
have violated I.C. 49-645 Hickox, See,
yield. g., e. Coughran 724, 18, 25-26, (1960) P.2d
(person ordinarily have right who would
way right loses that when in violation of law); Rook, 122 Cal.App.2d Chastain (driver
required yield vehicle warning).
where fails to give proper
The conviction should be reversed. *5 HOLMES, individually
Dell Per- Representative
sonal Estate Holmes, Plaintiff-Appellant,
Claire COMPANY, partner- OIL
HENDERSON
ship consisting of Joe Henderson and Defendants, Henderson,
Joe Howard Respondents, Party
Third Plaintiffs and COMPANY,
HOLMES CONSTRUCTION consisting partnership Keith Holmes, Kay
Holmes and husband and
wife, Holmes, Ralph Holmes and Jean wife, Holmes, de-
husband and Harold Holmes,
ceased, Shirley Widow of Holmes, Roger Holmes,
Harold Dis- Holmes, Harold
tributee of the Estate of Party Respon-
Third Defendants
dents.
No. 13330.
Supreme Court of Idaho.
May