KINNEY v. SMITH

DONALDSON, Chief Justice.

The appellant Bessie Poulsen Smith was the owner of a motor vehicle driven by Walter Gene Smith, whose negligent operation of the vehicle caused the death of the respondents' eleven-year-old daughter and injuries to other passengers in a car driven by the respondent L. Douglas Kinney. Mr. and Mrs. Kinney and their children brought suit against the driver, who has not appealed from the judgment below, and the appellant. Among other things, the respondents sought to recover damages for the wrongful death of their minor daughter, Janice Lake, Mrs. Kinney's child by a previous marriage.

Prior to trial, which took place on March 8 and 9, 1971, the defendants filed (on March 5, 1971) certain admissions, which in part conceded:

At the trial, the plaintiffs sought to establish the appellant's direct negligence for furnishing a vehicle to an incompetent driver (as contrasted to the negligence which must be imputed to her as owner under I.C. § 49-1404, subd. 1). The court sustained objections to the admission of evidence offered to show that the appellant negligently furnished a car to an incompetent driver; and the issue of whether the appellant was negligent in furnishing the car to the driver was not submitted to the jury.

The jury returned a verdict in favor of the plaintiffs, awarding $8,000 for general damages, $35,000 for wrongful death, and $7,461 for special damages and loss of property. The judgment entered below has been satisfied except for the $35,000 awarded to Mrs. Kinney for the death of her minor child. The appellant filed a motion for a new trial as to the wrongful death claim on the grounds of (1) excessiveness indicating passion and prejudice, (2) insufficient evidence, and (3) erroneous admission of evidence; this motion was denied. The appellant also filed a motion to alter or amend the judgment so that her liability as owner would be limited to $20,000 for death or personal injury and to $3,635.50 (the amount established at trial) for property damage; after this motion had been denied, the appellant filed a motion for release from judgment upon the payment into court of $20,000 for death or personal injury and $5,000 to be applied first toward property damages suffered, which motion was also denied. Both the motion to amend and the motion for leave to deposit were made on the grounds that since the appellant's liability arose solely from her ownership of the motor vehicle which caused the damages, her liability should be governed and limited by the provisions of I.C. § 49-1404, which in pertinent part provides:

The issue which must be resolved initially is whether the district court erred in denying the appellant's motion for a new trial on the wrongful death claim. Relying upon Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950), and many cases from other jurisdictions, the appellant urges that an award of $35,000 for the wrongful death of an eleven-year-old minor child is excessive as a matter of law. Counsel for the appellant did not, however, have the benefit of our recently released decision in Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), which overruled Checketts' holding that a verdict for the death of a minor child which exceeded $20,000 was excessive as a matter of law. In Meissner we refused to rule that a verdict of $71,335 for the death of a sixteen-year-old boy was excessive as a matter of law. Similarly, in the case at bar we cannot say that the amount awarded was not "just" "under all the circumstances of the case." See I.C. § 5-311; Meissner v. Smith, supra at 569-570, 494 P.2d 567.

The appellant also contends that her motion for a new trial should have been granted for the further reason that the court erred in admitting certain evidence offered by the respondents: photographs of the vehicles at the scene of the accident; and testimony as to how the accident occurred, and as to the speed of the appellant's vehicle. Over objection, this evidence was admitted as relevant and material to the probable extent of the plaintiffs' injuries. The appellant submits that since liability had been admitted, the challenged evidence was immaterial. However, the evidence in question was material to the issue of damages and relevant to show the extent of the injuries sustained by the surviving parties. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752, 755 (1947); Gulf Oil Corp. v. Slattery, 3 Storey 504, 53 Del. 504, 172 A.2d 266 (1961); Howard v. Stoughton, 199 Kan. 787, 433 P.2d 567 (1967); Baltus v. von der Lippe, 293 Minn. 99, 196 N.W.2d 922, 923 (1972); Piper v. Barber Transp. Co., 79 S.D. 353, 112 N.W.2d 329 (1961); Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299 (1962); Murray v. Mossman, 52 Wn.2d 885, 329 P.2d 1089 (1958) (photographs); Millay v. Milwaukee Auto. Mut. Ins. Co., 19 Wis.2d 330, 120 N.W.2d 103 (1963); 11 Blashfield, Automobile Law and Practice § 429.1 (3d ed. F. Lewis 1968). We conclude that the trial court did not err in denying the appellant's motion for a new trial.

We turn now to the appellant's motion to alter or amend the judgment on the ground that her liability was limited by statute. The appellant submits that on the record before this Court, the only basis for sustaining the imposition of liability stems from the negligence to be imputed to her as owner, under I.C. § 49-1404, set out supra; and therefore, she contends, her liability is subject to the limitation contained therein. We note, however, that the plaintiffs' case against the appellant was not based solely upon imputed negligence. In count one, paragraph III of their complaint, the plaintiffs alleged that the appellant "permitted the operation of said motor vehicle by said driver in Idaho and permitted the operation of said driver, knowing he was unauthorized to drive within the state of Idaho in violation of Section 49-339 and other provisions of the Idaho Motor Vehicle Laws."1 Section 49-339 of the Idaho Code provides that:

Driving by someone whose operator's license has been suspended is in violation of the provisions of I.C. § 49-337. Among other things, the plaintiffs offered to prove that when the appellant furnished her car to the driver, she knew that his driver's license had been suspended. If the appellant knowingly permitted her car to be driven by a person whose license had been suspended, then she acted in violation of I.C. § 49-339.

In order for the violation of a statute to be pertinent in a particular case, the statute must be applicable; that is, the statute must be designed to protect (1) the class of persons in which the plaintiff is included (2) against the type of harm which has in fact occurred as a result of its violation. Prosser on Torts 191-202 (3rd ed. 1964). In our view, I.C. § 49-339 is designed to protect other highway users from injuries caused by the negligence of unlicensed drivers. Jones v. Dixie Drive It Yourself System, 97 Ga.App. 669, 104 S.E.2d 497, 499-500 (1958); 6 Blashfield, Automobile Law and Practice § 254.26, at 383-384 (F. Lewis ed. 1966); cf. I.C. § 49-316 (requiring driver's license examinees to demonstrate "ability to exercise ordinary and reasonable control in the operation of a motor vehicle"). Therefore, I.C. § 49-339 is applicable in this case. In Idaho, the violation of an applicable statute constitutes negligence per se. Rosenberg v. Toetly, 93 Idaho 135, 456 P.2d 779 (1969) (driving in wrong lane); Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967) (failure to set hand brake and to turn front wheels away from traffic).

Of course, mere proof that the defendant was guilty of negligence per se in lending her car to an unauthorized driver does not ipso facto establish liability. The plaintiffs must further prove that such negligence was the proximate cause of the accident in which they were injured. On the issue of proximate cause, two main lines of authority exist. See Annot., 69 A.L.R.2d 978, 987 (1960). Some courts say that the proximate cause requirement is satisfied by showing that the injury resulted from the unlicensed driver's negligent operation of the vehicle; other courts go further and require the plaintiff to show not only that the unlicensed driver was negligent but also that he was in fact an "incompetent" driver. We adopt the view that the negligence of the unlicensed driver provides the requisite causal connection between the negligence of the owner in lending him the car and the injury sustained by the plaintiff. Hardwick v. Bublitz, 254 Iowa 1253, 119 N.W.2d 886, 893 (1963); Anthony v. Covington, 187 Okl. 27, 100 P.2d 461, 462-464 (1940); Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 591 (1947); 6 Blashfield, Automobile Law and Practice § 254.26, at 386 (F. Lewis ed. 1966); Annot., 69 A.L.R.2d 978, 989 (1960). The rationale for this holding was expressed well by the Texas Supreme Court in the Mundy case, supra:

In the case at bar, the defendants have admitted that the driver's negligence caused the plaintiffs' injuries; therefore, the only issue remaining for determination is that of the defendant owner's independent negligence — i.e., whether she knowingly permitted her vehicle to be driven by an unlicensed driver. I.C. § 49-339.

Liability based solely upon the negligence to be imputed to the owner of a motor vehicle is subject to the limitation contained in the statute imposing such liability. I.C. § 49-1404; see Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868 (1955). The district court did not express its reason for denying the appellant's motion to alter or amend the judgment rendered. Since the court refused to reduce the judgment in accordance with the limitation prescribed in I.C. § 49-1404, it must have believed that the appellant's independent negligence provided a basis of liability. And since the issue had neither been tried nor submitted to the jury, the court must have been laboring under the impression that the defendants had — in addition to admitting the negligence of the driver — also admitted the independent negligence of the owner. This conclusion is substantiated by the court's treatment of plaintiff's requested instructions number 102 and number 24,3 which would have been applicable to the issue of independent negligence; the court refused to give these instructions on the ground that they were not pertinent after the admissions in this case. The reporter's transcript of the proceedings at trial indicates that considerable confusion existed as to what issues were to be tried:

It appears that the appellant owner's independent negligence was not admitted by the defendants in the pre-trial admissions (quoted on p. 1235 of this opinion) filed by them with the court. The result is that a matter placed in issue by the plaintiffs' allegations and the defendants' denials was never tried in district court. Before the appellant owner may be held liable for more than the limits specified in I.C. § 49-1404, as was done below, she is entitled to have a jury determine the issue of her independent negligence. Consequently, the judgment rendered must be reversed pending a determination of this outstanding issue. If, upon remand, the appellant is found to have been negligent in entrusting her vehicle to Walter Gene Smith, then judgment should be re-entered upon the jury verdict previously rendered. But if the appellant is exonerated of such independent negligence, then the judgment finally entered should reflect a reduction of the jury verdict, so that the amount recovered from the appellant does not exceed the limitations set forth in I.C. § 49-1404.

Judgment reversed and cause remanded for further proceedings consistent with the views expressed herein. Costs to appellant.

SHEPARD, McQUADE, McFADDEN, and BAKES, JJ., concur.