Gammel v. Dees

No. 12114

I N THE SUPREME LOUKT OF THE STATE OF I.fONTAIW

1972

GEORGE WlLLIAM cZAlWEL,

P l a i n t i f f and Respondent,

-VS -
DOUGLAS STUART DEES,

Defendant and A p p e l l a n t .

~ i p p e a l from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable V i c t o r H. F a l l , Judge p r e s i d i n g .

Counsel of Record:

For A p p e l l a n t :

H a r r i s , Jackson & Utick, Helena, Montana.
David L. Jackson argued, Helena, Montana.

For Kespondent :

Risken and S c r i b n e r , Helena, Montana 59601.
John A. Risken argued, Helena, Montana 59601.

Submitted: June 20, 1972

Decided: JUL 1 8 1972
Filed :

Clerk
M r . J u s t i c e Wesley C a s t l e s delivered the Opinion of t h e Court.

This i s an appeal from a judgment entered i n favor of
plaintiff. P l a i n t i f f George Gammel brought t h i s a c t i o n (1) t o
recover the value of h i s 1960 Ope1 automobile, which was t o t a l l y
demolished a s a r e s u l t of an accident with t h e v e h i c l e of de-
fendant Douglas Dees, and (2) t o recover f o r l o s s of use of h i s
automobile. The d i s t r i c t c o u r t of t h e f i r s t j u d i c i a l d i s t r i c t ,
Lewis and Clark County, s i t t i n g without a j u r y , entered judgment
for plaintiff. The t r i a l c o u r t found p l a i n t i f f was e n t i t l e d t o

recover: (1) t h e s m of $350 f o r t h e value of h i s automobile and,
u
(2) $400 f o r t h e l o s s of use of h i s v e h i c l e . From t h i s judgment
defendant appeals.
This controversy a r o s e from a two-car accident which
occurred March 22, 1970, approximately seven miles e a s t of Lincoln,
Montana a t t h e junction of U.S. Highway 200 and t h e Copper Creek
Road. Defendant Dees was proceeding e a s t on Highway 200, a t
approximately 70 miles per hour, when he n o t i c e d p l a i n t i f f ' s
v e h i c l e i n f r o n t of him proceeding i n t h e same d i r e c t i o n a t a
slower r a t e of speed. P l a i n t i f f Gammel t e s t i f i e d he was t r a v e l i n g
a t about 25 miles per hour and h i s t u r n i n d i c a t o r was on, i n d i c a t i n g
t h a t he intended t o make a l e f t t u r n o f f Highway 200 onto Copper
Creek Road.
Dees slowed h i s c a r but when he was approximately two
c a r lengths behind p l a i n t i f f ' s v e h i c l e , he placed h i s l e f t t u r n
i n d i c a t o r on and proceeded t o pass p l a i n t i f f . A t about t h i s time,
p l a i n t i f f began making a l e f t hand turn. Defendant's v e h i c l e s t r u c k
t h e l e f t r e a r fender of p l a i n t i f f ' s automobile. Neither p a r t y was
personally i n j u r e d .
A t t h e scene of t h e a c c i d e n t , Highway 200 has approximately

a twenty f o o t wide blacktop s u r f a c e with about t h r e e f o o t shoulders.
The Copper Creek Road, which i s a d i r t and gravel county road,
i n t e r s e c t s Highway 200 a t a r i g h t angle, forming a T-shaped i n t e r -
section.The evidence i s undisputed t h a t t h e r e a r e absolutely no
highway department signs indicating the presence of the i n t e r -
section. In addition, both p l a i n t i f f and defendant t e s t i f i e d
t h a t the center l i n e of Highway 200 was marked by a broken white
l i n e , which i n d i c a t e s t h a t passing i s permitted.
Both p l a i n t i f f and defendant were c i t e d by the Montana
Highway P a t r o l f o r v i o l a t i n g s t a t e t r a f f i c laws. Defendant f o r
passing a t an i n t e r s e c t i o n , and p l a i n t i f f f o r making an improper
turn,
Evidence offered by p l a i n t i f f indicated t h a t h i s v e h i c l e
was a t o t a l l o s s . The day following the accident, March 23, 1970,
p l a i n t i f f purchased a replacement automobile which he used u n t i l
the middle of M y 1970, when he junked the replacement c a r ,
a As a
r e s u l t of the l o s s of use of h i s c a r , p l a i n t i f f t e s t i f i e d t h a t h i s
income was reduced from $130 per week t o $40 per month, The t r i a l
court found t h a t the l o s s of use had a value of $400.
Because p l a i n t i f f could not prove f i n a n c i a l r e s p o n s i b i l i t y
t o the s a t i s f a c t i o n of the Highway P a t r o l a s he did not have funds
t o make a cash deposit nor automobile insurance, he was f u r t h e r
inconvenienced by the l o s s of h i s d r i v e r ' s l i c e n s e , H did not
e
recover h i s l i c e n s e t o drive u n t i l a f t e r the judgment of the
t r i a l c o u r t , which completely vindicated him.
Two i s s u e s a r e presented on appeal,
1. Did the d i s t r i c t court commit e r r o r i n granting
judgment f o r t h e p l a i n t i f f ?
2, Did the d i s t r i c t court e r r i n awarding the s m of
u
$400 f o r l o s s of use of p l a i n t i f f ' s automobile?
W find the d i s t r i c t court did n o t commit e r r o r i n granting
e
judgment f o r p l a i n t i f f . The record i s c l e a r t h a t defendant,
t r a v e l i n g a t a high r a t e of speed and observing a slow moving
vehicle ahead, did not do what a prudent person would have done or
should have done under the circumstances. Prior to reaching the
junction where the collision occurred, there are two signs that
should place a careful driver on notice of possible danger. First,
there is a "School Bus Stop" sign and, second, there is a forest
service sign indicating "Copper Creek Roadt'. Under such circum-
stances, defendant should have anticipated that the slow moving
vehicle was going to turn and he should have reduced his speed in
order to ascertain the intent of the preceding vehicle.
Both case law and sound reasoning support the trial court's
findings. In Holland v. Konda, 142 Mont, 536, 542, 385 P.2d 272,
6 ALR3rd 824, this Court, after citing section 32-2167, R,C.M.
1947, relating to turns at intersections, said:
"Appellant's contention seems to be that Kaighn
violated this statute in turning left on the
roadway when such movement could not be made with
reasonable safety. The proof that it was not rea-
sonably safe was the accident itself, This is
reasoning backwards and the statute is not to be
interpreted that strictly. The duty imposed on
the driver of a car intending to turn right or
left on the highway by this statute has not as yet
been defined by this court. However, California
with an almost identical statute * * * has inter-
preted it to mean that the person turning does not
need to know with absolute certainty that it is
safe, but merely that he must take reasonable pre-
cautions before turning, [Citing cases]. * * *
"'We do not understand it to be the rule that a
person is required to know that the turning move-
ment can be made with safety. All that is required
is that he take the precautions which a reasonably
prudent person would take under the circumstances
reasonably appearing to him at the time. I I 1

Defendant argues in his brief that plaintiff was guilty
of contributory negligence which would bar any recovery. To
support this contention he cites Bellon v. Heinzig, 347 F.2d 4, 7,
(9th Cir. 1965); Sumner v, Amacher, 150 Mont. 544, 550, 437 P.2d
630; and Faucette v. Christensen, 145 Mont, 28, 36, 37, 4 0 P.2d
0
883. We find that these cases are clearly distinguishable from
the instant case. In Bellon the court stated:
be ell on's argument is based upon the district
court's statement that 'section 32-2167, supra,
places an affirmative duty on the person turning
to determine that the turn "can be made with
reasonable safety." Bellon clearly failed to
comply with this requirement. I Il
Here, the trial court found that plaintiff exercised proper
care in executing his turn onto the Copper Creek Road. Under such
circumstances, our review is confined to determining whether there
was substantial credible evidence to support the trial court's
finding. Sumner v Amacher, supra; Greenup v. Community Transit
.
Co., 145 Mont. 39, 399 P.2d 418. We find that such substantial
credible evidence existed, and the district court did not commit
error in granting judgment for the plaintiff.
In Sumner this Court held:
"* * * that there is substantial credible evidence
that Amacher was negligent, proximately causing the
accident, in that he failed to signal for a left
turn off the highway sufficiently in advance to make
the turn with reasonable safety as required by I I statute,
knowing of the presence of traffic behind him.
In the instant case ample evidence was introduced to prove
that plaintiff was not negligent in making the turn onto Copper
Creek Road. Plaintiff was traveling at a slow rate of speed.
Although some conflict exists in the record as to whether plain-
tiff's turn indicator was operating at the time, this was a question
to be resolved by the trier of the facts, and the trial court
resolved this in favor of the plaintiff. We find no reason to
reverse this determination.
In Faucette, action was brought against the defendant on
the grounds that he was negligent as a matter of law in being on
the left of the center while within 100 feet of an intersection
in violation of section 32-2156, R.C.M. 1947. This Court there
said:
 "We note that in the Leach case, supra, this court
in attempting to determine the meaning of 'inter-
section' found that the legislature meant those inter-
sections I publicly maintained.' Following the same
type of reasoning, we hold that the prohibited inter-
section for passing under section 32-2156, is that
intersection marked by the highway commission as
authorized and adopted as heretofore described, Such
reasoning gives meaning to all of the statutes here-
tofore cited and to regulations adopted thereunder.

It
In the instant situation, a driver can follow the
directions of markings and signs, and in doing so
is not in violation of section 32-2156."
on
Relying/Paucette as authority, defendant argues that he
did not violate section 32-2156, R o C e M e 1947, in following the
directions of the broken white center line on Highway 200, and
he was not negligent as a matter of law.
We do not believe this is the issue in the case before
us. Defendant was found to be negligent in his attempt to pass
a slow moving automobile with its turn signal indicating that
a left turn was about to be executed, Defendant was traveling
at a high rate of speed. These facts, standing alone, would show
that defendant could be found to be negligent and the issue pre-
sented in Baucette is not in dispute here. Defendant was not
negligent as a matter of law, but from the facts believed by the
trier of fact, was found to be negligent in attempting to pass
without any audible signal at a high rate of speed at a place
where a prudent man would take reasonable precautions; and cer-
tainly would not pass against a turn signal operating on the vehicle
ahead.
Defendant's second issue is whether the trial court erred
in awarding the sum of $400 for loss of use of plaintiff's vehicle.
Plaintiff replaced his vehicle the day following the
accident. He testified that he drove this replacement vehicle
for approximately two months before junking it. Due to these facts
we find plaintiff is not entitled to any amount for loss of use of
 his vehicle, In Stahl v. Farmers Union Oil Co., 145 Mont. 106,
113, 399 P.2d 763, this Court said:
"The general rule on damages is that the owner
can recover for being deprived of the use of a
damaged vehicle only for the period of time rea-
sonably necessary in making repairs, [Citing
cases] * * *
"* * * damages for loss of use may not be limited
to the market value of the vehicle but may include
additional damages for loss of use during the
period reasonably required for replacement,I1
Here, plaintiff replaced his demolished vehicle on the
day following the accident, therefore the trial court was in
error in awarding the sum of $400 for loss of use of the vehicle,
In his brief on appeal plaintiff-respondent urges this
Court to dismiss the appeal based upon numerous extensions of
time secured by defendant-appellant for filing his brief, Since
the time for filing of appellant's brief was extended by this
Court, we find no merit in respondent's request,
The cause is remanded to the district court with instruc-
tions that the final judgment be appropriately modified to comply
with this opinion. Each party shall bear his own costs.

~ssociatb)
Justice

/ / Chief .Justice
/

Associate Justices,