*1 Appellant objectionable. cannot now be complain. questions Uydene these heard to Both of Roger M. AMDAHL and D. Am dahl, at the and answers should be admissible as Guardians Ad Litem for Darin Amdahl, Minor, retrial this matter. Ap D. A Plaintiffs and pellants, We reverse and remand. SARGES, Jennifer R. Defendant HENDERSON, JJ., and MORGAN Appellee. and FOSHEIM, J., Retired concur. No. 15291. WUEST, C.J., part in concurs Supreme Court of South Dakota. part.

dissents Considered on Briefs Nov. 1986. MARTIN, Judge, sitting Circuit for 6,May Decided J., SABERS, disqualified. J., MILLER, been of the Court at the time this

member Court,

action did was submitted participate.

WUEST, (concurring Chief Justice

part dissenting part). concur, except my appellant opinion

I objection question her

did not waive

concerning malpractice because counsel objection taking

did not make the at the deposition. SDCL 15-6-32 sections

(d)(3)(A) (d)(3)(B) designed pre- are laying trap by failing

vent counsel from object opponent easily when his could objectionable

have corrected the matter raising

and then the matter at trial when opportunity longer to correct is no

available. answer could been corrected

never have time of

taking deposition. majority As the observes,

opinion correctly South Dakota adopted

has not the ultimate issue rule. I objection at trial.

would sustain

639 Evans, and, therefore, Hoy Davenport, gence Carleton R. of it prejudicial was er- Smith, Hoy, Hurwitz & and James L. Staff ror to exclude the evidence. Evans,

Atty. Davenport, of Hurwitz & A trial rulings court’s evidentiary Smith, Falls, appel- plaintiffs Sioux for correct; are presumptively has this court lants. duty no to seek reasons to reverse. Fuller, Woods, Timothy J. Nimick of reviewing the ruling, trial court’s we must Smith, P.C., Falls, Shultz de- & Sioux for determine whether the trial court abused appellee. fendant and Behrens, its Shamburger discretion. v. (S.D.1986). 380 N.W.2d 659 The trial court WUEST, Chief Justice. may exclude evidence under 19-12-3 SDCL appeal Uydene This by plaintiffs is an evidence, admitted, provide if the would en- Roger judgment Amdahl from a the with tendency an undue to decide defendant, tered in R. favor the Jennifer improper the on an case basis. Id. Sarges, af- negligence case. We pre- This court has dealt never with firm. cise appeal. issue raised in this Neverthe- This arises out of an automobile case less, rely heavily upon Amdahls our deci- on accident which occurred November Gruba, 322,330, sion in Arbach v. 89 S.D. Darin, high 1983. Amdahls’ son school (1975), 232 N.W.2d in which we junior, driving Highway on was home stated that violation of a safety Brandon, According near South Dakota. justified excused, negligence unless or is Darin, by driven defendant car turned per se. Amdahls’ reliance on this case is him, forcing left in him front to hit misplaced. negligent was a Arbach en- brakes; gravel he then slid on some and hit case, trustment the primary with parked passen- car. Defendant sufficiency being the evidence ger testified that defendant did not cut negligence; tangentially, defendant’s we Darin, rather, front of but Darin’s hit car negligence is discussed whether it se to out, gravel spun some causing the acci- (and possibly allow an unlicensed driver dent. Defendant did have a driver’s driver) operate intoxicated one’s automo- license at the time of the accident. Consequently, bile. Arbach is not control- trial, Prior defendant made a motion ling present in the case. limine to exclude evidence that she did not have a driver’s license. The trial court Furthermore, overwhelming ruled that such on evidence relevant is weight authority to the effect that experience inexperience the issue of the or of a not evi mere lack driver’s license is defendant, but that the evidence negligence operation dence of substantially prejudicial proba than Annot., vehicle. motor A.L.R.2d tive and therefore inadmissible under (1953) therein. The Minne and cases cited (Rule 403).* SDCL 19-12-3 The trial court Supreme sota Court has stated on several did, however, testimony regarding allow driving that license occasions without a is driving experience. lack of defendant’s issue of irrelevant immaterial returned a verdict for defendant Fleischhacker, negligence. Jones v. appealed. and Amdahls (Minn.1982); v. N.W.2d 633 Kronzer First Minneapolis, Nat’l Bank 305 Minn. appeal The sole issue on is whether the trial 235 N.W.2d 187 v. Niel court abused its discretion exclud- Knutson (1959). sen, Minn. ing 99 N.W.2d 215 defendant’s lack of Court, argue Amdahls de- And the Indiana in a fre license. case, quently fendant’s failure to have driver’s license cited held has alleged negli- upon causally predicated connected to the cannot be fact of mere * relevant, "Although leading jury, states: of undue 19-12-3 considerations time, dence substantially be excluded if its value delay, presentation waste of or needless outweighed danger by the un- cumulative evidence.” issues, prejudice, fair confusion of or mis- fit to

minority operator’s or lack of an court saw exclude evidence on a Opple Ray, 208 Ind. 195 N.E. license.1 confronted lack We are simple issue of with an abuse discretion. there abuse of discretion or not? It Was persuaded majority are rule We appears prejudicing the trial court feared Therefore, on this is the rule. issue correct jury against party who did not have trial court did not we conclude that *3 Rather, the trial court a driver’s excluding abuse its discretion the evi- upon case should decided believed the question. dence in negligence rather than a violation of a fail- judgment The of the trial court af- Although ure to obtain a driver’s license.2 firmed. inquiring prohibiting appellant from into appellee’s failure to have a valid driver’s MORGAN, J., FOSHEIM, accident, license at the time of the trial Justice, Retired concur. appellant legitimate- ruled that court could cover, examination, ly probe by way of HENDERSON, J., specially. concurs experience appellee. of SABERS, J., dissents. trial, Throughout opening from the through ap- statement the examination of MILLER, J., not been a pellee, driving experience appellee of this member of the court at the time fact, thoroughly was canvassed. court, did action was submitted to the jury appellee heard evidence that had driv- participate. question only driveway en car in in the operated other than HENDERSON, and had never the car (specially concur- Justice Further, driveway. re- ring). examination appellee gravel on a vealed had driven road no This was noncontact accident where only accompanied by parents. when physical evidence existed to either confirm appellee That had taken a course respective litigant’s or refute the version of complete education but did not the last two transpired All “in the facts. of the events classes, brought further was evidence be- country” city.” and not “in the The jury fore the to enable the to learn of only parties appel- witnesses were the appellee’s experience and education in driv- passenger. lee’s The did not return a ing. All this in order to is mentioned unanimous verdict but did return a verdict trying that the trial court was not to reflect appellee resolving after tre- favor of appellant’s cut case short mendous conflict in the evidence and obvi- ques- directly going dence—evidence ously weighing credibility of the wit- driving competence. tion of statements, oath, concerning under nesses’ happened. how this accident Surely, a of a driver’s license violation se, evidence, se, law, per should not be Believing that the evidence of a lack of simply negligence. There has to be license was evidence which was substantial- trial causal connection between the viola- ly prejudicial probative, than some 12:63, out, (1986); majority opinion points long- Law Torts at 680 4 T. Shear- § 1. As the Redfield, standing majority rule states "the mere lack of a on the Law man & A. A Treatise incompetent 685, (rev. license is immaterial and driver’s in Negligence Zipp ed. C. § at 1622-23 determining of the acci- whether at the time 1941). guilty operator in the dent the operation motor vehicle." Am.Jur.2d of the statutes, *4 against driving license, without a as fol- complete had rienced driver and failed to lows: Notwithstanding, her driver’s education. against in her favor in held this noncon- 32-12-22. Prohibition tact, country-road involving young accident driving without license—Misdemeanor. people at person, the wheel. No any ... shall drive motor upon highway vehicle a in this state un-

SABERS, (dissenting). Justice person less such has a valid license as an operator provisions under the of this Gruba, 322, 89 Arbach v. S.D. 232 chapter. Any person convicted for a vio- (1975), N.W.2d 842 the South Su- Dakota guilty lation this section be shall preme Court stated: Class 2 misdemeanor. It in is settled law this state that safety justi- violation of a unless negligence per If it is se to allow an unli- excused, negligence fied or is per se. why censed driver to drive a car isn’t it per negligence se for an driver Id., unlicensed 330, 846, 89 S.D. at 232 N.W.2d at to drive? 670, citing Alley Siepman, v. 87 S.D. 214 (1974); Peterson,

N.W.2d 7 Bothern se, negligence not driving Even if (1967). S.D. 155 N.W.2d 308 certainly pertinent license is without a negligent Arbach was relevant and ad- entrustment dence of respect case competence expe- that dealt with violation a safe- in missible prohibited ty statute an un- allowing which rience. true, opposite Certainly negligence per having If were at his not a license the time violated, blindly applied hardly probative having se is whenever a law is done so. is his not adjudged negligent Licensing defendants will even in Gregory, be Breach Criminal Statutes they may Litigation, situations where not be at fault. Such in Civil 36 Cornell L.Rev. 634-35 Morris, a result is untenable. See Relation (1951). Liability, to Tort Criminal Statutes 46 Harv.L. Moreover, licensing opera- Rev. 4. Even those cases in which lack of an relevant, safety statute is not a statute. some causal tor’s license held con- appear statutory nection must between vio- specify It does not correct standard or See, e.g., the accident. Klanseck v. way anything; lation and driving do while without a Serv., Inc., 426 signify Anderson Sales & Mich. any license does not in conceivable Boles, way driving question time N.W.2d 356 Brackin v. 452 So.2d that at the in such 1984). (Fla. up approved As the Court of Mi- did not come standard chigan recently "Relevancy usually any respect. licensing is true wrote: This because a stipulate inherently regula- traffic statute does not what con- established when the standard be, duct on should the manner in the road so that breach tion which violated concerns (i.e., license) licensing having operated. Relevancy statute an automobile was which easily regu- is tantamount observed the stat- is not so established when traffic utory driving. licensing standard conduct An lation which was violated concerns a Mich, driver; Klanseck, may superb requirement.” be unlicensed driver not, added) may (emphasis (quoting is or at 360 whether he he have driven N.W.2d kin, Brac- 545). question. on the So.2d at with due care occasion in As 4 Harper, stated F. The Law Plaintiff should have been allowed to tell (2d 1986):

Torts 20.2 ed. young defendant was driving highways Where car is entrusted to an unli- on the of this state even driver, censed or him- where defendant though enough she had not cared to obtain license, self drives it without a a similar question presented ... did the harm A ch. 19-12 relevancy review SDCL on license, result from the want of a or admissibility of evidence favors of the ab- (more accurately) because of the risk of sence of a driver’s license. SDCL 19-12-1 unskilled stat- defines “relevant evidence” as “evidence sought prevent? ute If the car was having any tendency to make the existence driven with all the skill and care the law any consequence fact that is of a requires, proceed then the did not harm probable determination of the action more risk; if negli- from such a the car was probable or less than it would be without driven, gently then it did. The further the evidence.” SDCL 19-12-2 states May then arises: the want of part that “all relevant evidence is admissi- license be considered as some evidence ble, except provided otherwise Con- that unskillfulness contributed to the ac- statute_” stitution or SDCL 19-12-3 say cident? Some courts no. But this provides relevant, “although effectively deprives the victim of if excluded its value is benefit, case, in a civil of a statute con- substantially outweighed by danger cededly passed part protection. for his ruling prejudice, issues, Nor does the unfair theoretically seem confusion of *5 legislature sound. The misleading jury, by has decided that the consideration of general safety requires activity delay, time, undue waste of or needless to be limited to those who can presentation cumulative evidence.” demonstrate at least spe- a minimum showing There is no in this case that the cial skill. It is fair to assume that the probative value of this relevant evidence unlicensed as a class likely are far less outweighed was substantially by the dan- than those licensed to have the skill for ger prejudice. of unfair required. which a license is And it is “ ‘[Prejudice’ damage does not mean the certainly true that when the unskilled opponent’s case that results from attempt do, what it takes skill to some of legitimate probative force of the evi- intangible go up factors that to make dence; rather, it refers to the unfair likely lack skill are far more than not advantage capacity that results from the any mishap to have contributed to persuade by illegit- evidence to Frequently they occurs. ways do this in imate means.” prove; moreover, that are hard to what Shell, State v. Iron 336 N.W.2d likely evidence there is the matter is (S.D.1983), Wright quoting C. & K. Gra- be in the proba- defendant’s hands. Both ham, Federal Practice Procedure and therefore, bility policy, and call for the (1978). Here, 5215 at 274-275 this evi- rule that breach of a if defendant, prejudiced dence have all, plaintiff it is unfairly; only prejudice but not prima should be facie evidence that it is unfair excluded under SDCL 19-12-3. ‘proximate any injury cause’ of ensues, added) (emphasis arguments advanced the defend- Id., at 112-113. arguments ant to exclude this evidence are properly made to the rather than recognized importance

The trial court “majority to the court. The effect of the relevancy and of this evidence and tried to majority opinion rule” advanced damaging minimize the effect of its deci- justice harmful by allowing plaintiff to the administration of inquire sion long-term it competency experience. It because shows inherent seems to letting plaintiff prevents that’s like me into the distrust for the them ring with one arm tied knowing behind his back. from the full truth. In the short- term, prevented plaintiff it from fair civil trial.

Accordingly, I dissent. BRAUNGER,

Paul A. Plaintiff Appellant, Snow,

Jack SNOW June Appellees.

Defendants

Nos. 15341. Court South Dakota.

Argued Jan. 1987. May

Decided notes such ”[m]ost 2. Prosser 1023, Highway at 184 § Automobiles Traffic applicable automobile drivers as those ... Southampton, See Dance v. Town only intended have been construed as for the (1983); N.Y.S.2d Mills v. A.D.2d Park, public against injury protection of the at the Wash.2d 409 P.2d 646 incompetents, liability hands of and to create no Silverman, NJ.Super. 176 A.2d Mattero v. competent the actor is in fact but where unli- Keeton, (1961); W. Prosser and Keeton on Keeton, (footnotes supra at 226 censed.” omitted). 1984); (5th at 226 ed. 3 S. the Law Torts § Gans, Speiser, C. Krause & A. The American First, person tion injury.3 operate the trial court licensed one’s automo- should, bile, as a matter and determination as follows: law, determine whether the violation is rel- Allowing 32-12-72. unauthorized evant; and, secondly, the trial court should person person to use vehicle. No shall violation proximate determine if the is the knowingly permit authorize or a motor damage any injury, cause of the latter vehicle owned him or under his con- Here, being finding fact for the jury.4 upon any trol be driven highway by determination, the trial court made as a any person who is not authorized under law, matter of violation was chapter or in this violation relevant; yet, trial court was abundant- provisions chapter. of this A violation of ly permitting go fair in is a section Class 2 misdemeanor. jury concerning skills of the driver who present case deals with the violation thoroughly did not have a license. It was safety prohibiting person statute developed appellee inexpe- an