Opinion
No. 8460.
December 2, 1957.
APPEAL FROM DISTRICT COURT, EIGHTH JUDICIAL DISTRICT, KOOTENAI COUNTY, CLAY V. SPEAR, J.
Whitla Knudson, Coeur d'Alene, for appellant.
Graydon W. Smith, Atty. Gen., Allan G. Shepard, Asst. Atty. Gen., for the State.
James W. Ingalls, Coeur d'Alene, for intervenor.
J. Ward Arney, Coeur d'Alene, for respondents.
Right to recover costs is limited to statutory authority. Feenaughty Mach. Co. v. Turner, 44 Idaho 363, 257 P. 38; First Nat. Bank of Hagerman v. Stringfield, 40 Idaho 587, 235 P. 897; Schmelzel v. Board of Com'rs, 16 Idaho 32, 100 P. 106, 21 L.R.A., N.S., 199; Cronan v. District Court, 15 Idaho 462, 98 P. 614.
Agent of state not liable when state cannot be sued. State ex rel. Hansen v. Parsons, 57 Idaho 775, 69 P.2d 788; Nordby v. Dept. of Public Works, 60 Idaho 475, 92 P.2d 789; Peterson v. Bannock County, 61 Idaho 419, 102 P.2d 647; Strickfaden v. Green Creek Highway Dept., 42 Idaho 738, 739, 248 P.2d 456, 49 A.L.R. 1057; Worden v. Witt, 4 Idaho 404, 39 P. 1114; Davis v. State, 30 Idaho 137, 163 P. 373; Bullock v. Class "A" School Dist., 75 Idaho 304, 272 P.2d 292; Pyke v. Steunberg, 5 Idaho 614, 615, at page 622, 51 P. 614; Art. 5, Sec. 10, Idaho Constitution.
State Board of Examiners and not courts have sole jurisdiction to allow claims against state. Bragaw v. Gooding, 14 Idaho 288, at page 293, 94 P. 438.
New parties cannot bring in new causes of action or be substituted. Smith v. Lenzi, 74 Utah 362, 279 P. 893, Sub-division 7; Sweeney v. American Nat. Bank, 62 Idaho 544, 115 P.2d 109; Hallett v. Larcom, 5 Idaho 492, 51 P. 108; Sprague v. Adams, 139 Wn. 510, 247 P. 960, at page 963, 47 A.L.R. 529.
Where, before any cause of action for injury to person or property arises, the owner of the property by contract invests another with certain potential or equitable rights or interests in such property, there is no basis for the denial of the right of the owner of such interest so acquired to prosecute a separate action for damages to such property arising out of its subsequent injury. Where such injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation to come into operation for the benefit of the person whose property is injured, the contractor may prosecute a separate action against the party causing such injury for reimbursement for indemnity moneys paid under such contract. Vasu v. Kohler, 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Underwriters at Lloyds Ins. Co. v. Vicksburg Traction Co., 106 Miss. 244, 63 So. 455, 51 L.R.A., N.S., 319; 64 A.L.R. 669; LeBlond Schacht Truck Co. v. Farm Bureau Mutual Auto Ins. Co., 34 Ohio App. 478, 171 N.E. 414.
The verdict of a jury based upon conflicting evidence will not be set aside unless the evidence so strongly preponderates against the verdict as to indicate that the jury was moved by passion, prejudice, or improper influence. First National Bank of Blackfoot v. Doschades, 47 Idaho 661, 279 P. 416, 65 A.L.R. 900; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; Cupples Mercantile Co. v. Bow, 32 Idaho 774, 189 P. 48, 24 A.L.R. 1296; McAlinden v. St. Maries Hospital Ass'n, 28 Idaho 657, 156 P. 115; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Davidson Grocery Co. v. Johnston, 24 Idaho 336, 133 P. 929.
The statute (I.C. § 41-3301) need be construed only as "permissive" or "consenting" a grant of authority and power to buy insurance. Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609.
Pence was not entitled to the cloak of state immunity from liability. He was not protected by I.C. § 49-533, because he was not at the time of the collision engaged in work upon the surface of the road, but in traveling the vehicle.
Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 states the law as it should be applied to the instant case.
"It is apparent from the endorsement that the insurer intended to and did contract to assume and pay damages, to the extent of the policy limits, to persons injured through the negligence of those lawfully operating the forty state automobiles covered by the policy. Otherwise, the premium of some $8500 of public moneys paid to and received by the insurer for bodily injury and property damage insurance, would have been without consideration. The state is immune and cannot be made liable to pay any judgment which may be entered, nor any of the expense of defending the action. However, in view of the stipulation in the policy, that the insurer cannot be sued until the amount of liability has been determined in an action against the insured, the state must continue as a nominal party defendant for the purpose of trial and judgment in order that the liability of the insurer, if any, may be thus determined and fixed. If a verdict is returned against the state, the judgment entered thereon must in terms provide that the state is not liable therefor nor for any costs or expenses involved in the action, and that the judgment determines the liability of the insurer and fixes the amount of such liability, within the limits of the policy."
R.A. Harrison and Myrtle Harrison, husband and wife, brought this action against the State of Idaho and its employee, Jerald Pence, for personal injuries and property damage which are alleged to have been caused by the negligence of Pence. General Insurance Company of America, seeking to recover the amount it paid under an insurance policy to the Harrisons for damage to their automobile, was made a party plaintiff by intervention. Under the complaint, the State of Idaho was made a nominal defendant only, and to the extent of its insurance policy. The plaintiffs are not seeking a judgment against the State of Idaho, but only against the insurance carrier.
Generally, the facts are that R.A. Harrison, on the thirtieth day of June, 1952, was driving easterly on a highway within the State of Idaho which is designated as U.S. Highway No. 10, and Myrtle Harrison was sitting at his right. Traveling easterly from Coeur d'Alene, Idaho, the Harrisons had passed the turn-off to Harrison, Idaho, when the alleged collision occurred between their car and a rubber-tired mobile scoop owned by the State of Idaho and operated by the defendant, Jerald Pence.
Near the point on the highway where the plaintiffs' car overturned there was a berm of mixed gravel. This berm was off the highway and off the shoulder of the highway. Pence had proceeded westerly along the highway to a point opposite the westerly end of the berm, and had pulled his scoop about halfway off the highway to allow two cars behind him to pass before turning the scoop crosswise in the highway in order to cross over to the berm of gravel on the southerly side of the highway.
Harrison, coming around a carve, saw a car approaching, and as he proceeded farther down the highway, he saw another automobile behind the first car drive from the west-bound into the east-bound traffic and then return.
After the second car traveling westerly passed the machine, the operator Pence looked in both directions and turned his machine across the road. He then proceeded across the highway to the extent of having the scoop portion two feet into the east-bound lane of traffic.
Immediately after passing the second car, Harrison complains he was struck by the mobile scoop. Neither Harrison nor Pence saw the other until the moment of the accident. Harrison claims his car was struck by the scoop of the tractor. On the other hand, Pence stated that the Harrison car was skidding as it went by.
Three other witnesses testified they heard a loud noise or "bang" just before the Harrison car overturned.
As a result of the car's overturning, Mrs. Harrison suffered personal injuries to her neck, spine, and nervous system. Injuries to R.A. Harrison were bruises on the right shoulder and over the abdomen, and his left shin was skinned. Repair damage to the automobile was greater than its value. The jury awarded damages to Mrs. Harrison for personal injuries to her neck and back, and awarded Mr. Harrison damages, and the General Insurance Company was awarded damages.
At the time of the accident, Mr. Pence was not actually engaged in repairs to the highway, nor were there warning signs on the highway immediately west of the place where Mr. Pence was turning his machine.
Both plaintiffs alleged the State of Idaho had a policy of insurance covering personal injuries and property damage which they had suffered as a result of the negligent use of the scoop. The State and Mr. Pence deny a policy is in existence covering such machine or for such injuries. The record discloses a premium had been paid by the State of Idaho for an insurance policy. The defendants further allege governmental immunity, and Pence claims the sovereign's immunity extends to the servant.
This opinion is limited to the validity of the judgment against the defendant Pence, inasmuch as the State did not take an appeal from the judgment entered.
In the appellant's brief there are 21 assignments of error, all dealing with the instructions of the trial court to the jury. There are no authorities nor argument in the brief on these assignments of error. There is no section in the brief on Points and Authorities as required by Rule 41, section 2, of the rules of this Court. However, this Court in previous cases has taken up those assignments of error which have been treated in the argument section of the appellant's brief, and has treated those which had no authorities cited or argument made as abandoned. Upon this line of reasoning, it is concluded the specific assignments of error were abandoned.
In the instant brief there is considerable overlapping of the contentions of the appellant Pence; therefore, in considering the manner in which the case has been presented to the Court, only those errors which are appropriate to a disposition of the case will be discussed herein. They are as follows:
1. Whether governmental immunity extends to an employee for his negligence.
2. Whether there was sufficient evidence upon which to base a judgment for the plaintiffs and the intervenor.
3. Whether there is public liability coverage in the insurance policy, and if the State had authority to make payment of the premium.
4. Are certain costs allowable?
There is no conflict in the application of the immunity principle. Appellant cites Peterson v. Bannock County, 61 Idaho 419, 102 P.2d 647, 648, for the proposition that the agent is immune along with the sovereign for his negligence. However, in that case the Court was not talking about an agent, but rather a principal. In that state of facts the county was a party, and the Court said:
"`Counties may be said to be true public corporations. They are local organizations, which for the purposes of civil administration are invested with a few functions characteristic of a corporate existence. They are legal political subdivisions of the state, created or superimposed by the sovereign power of the state of its own sovereign will, without any particular solicitation or consent of the people within the territory affected. * * *'"
In Restatement, Torts, sec. 888 c. (1939), the following appears:
" Public officers. While there is no immunity by the mere fact that one is a public officer, there are many situations where a person may be protected by the command of a superior or the existence of a privilege held by him because of his official position or because of a privilege held by another on whose account he acts * * *. Where, however, the other has not a privilege but has merely an immunity from civil liability, as is the case of a municipal corporation which is not liable for tortious conduct committed by its servants while in the performance of a governmental function, the person who acts does not share the immunity. * * *"
See also 43 Am.Jur., Public Officers, sec. 279, p. 92; Rowley v. City of Cedar Rapids, 203 Iowa 1245, 212 N.W. 158, 53 A.L.R. 375.
In the trial of the case, the conflicting evidence went to whether the scoop had actually struck the car, or if excessive speed on the part of Harrison was the principal causative factor of the accident. An examination of the record fails to support the theory of excessive speed, either directly or circumstantially. Harrison and his wife both testified the machine operated by Pence rammed their automobile. Three witnesses heard a loud noise or "bang" and immediately looked toward the Pence machine and the Harrison car. At that instant they saw the Harrison car start to overturn. One eyewitness who heard the noise also stated the car's wheels were cramped and brakes applied at the time it started to overturn. Pence denied striking the car with the scoop part of the machine, but stated the machine extended two feet into the Harrisons' lane of traffic. None of the witnesses observed the Harrison car prior to hearing the noise, which attracted their attention to the car.
Upon such conflicting evidence, the jury was entitled to draw the conclusion that Pence did in fact drive his machine into the side of the harrison car. Where there is competent, substantial, though conflicting, evidence to support the findings of fact by the trier of the facts, these will not be disturbed on appeal. Petersen v. Holland, 79 Idaho 63, 310 P.2d 810; Lesekatos v. Koehler, 79 Idaho 21, 310 P.2d 801; Jordan v. Securities Credit Corporation, 79 Idaho 284, 314 P.2d 967.
In 1951, Anchor Casualty Company undertook to insure equipment of the Highway Department of the State of Idaho against personal liability and property damage. The defendant Pence advances a defense that the policy is not one of personal liability other than for automobiles, and a further defense in the vein that the state had no right to buy such a policy.
It clearly appears on the face of the policy and endorsements thereto that the Anchor Casualty Company accepted a premium to insure this type of highway department vehicle against bodily injury and property damage liability. The coverages are as follows:
Coverages Limits of Liability Premium Bodily Injury Liability $10,000.00 each person $5,944.56 20,000.00 each accident Property Damage Liability 5,000.00 each accident 3,655.44
An endorsement to the policy reads:
"In consideration of the reduced premiums at which this policy is written it is agreed that the insurance provided thereby shall apply only to automotive equipment and miscellaneous equipment such as tractors, graders, crawler shovels, mowers, rollers, scoop-mobiles and loaders, owned, hired or operated by the Department of Highways, State of Idaho and shall not apply to such equipment operated by other departments of the state of Idaho. As respects shovels, the insurance provided by this policy shall not apply to the operation of the shovel."
Included in the costs were expense of pictures, $12.50, and preparation of photostatic copy of the insurance policy, $7.05. Right to recover costs is statutory. Feenaughty Machinery Co. v. Turner, 44 Idaho 363, 257 P. 38. There being no statute authorizing the inclusion of these expenses in the cost bill, they are hereby disallowed.
The judgment is reversed as to the costs complained of, and affirmed as to the remainder of the judgment.
Costs to respondent.
KEETON, C.J., and PORTER, TAYLOR and SMITH, JJ., concur.