Privette v. Faulkner , 92 Nev. 353 ( 1976 )

OPINION

By the Court,

Zenoff, J.:

On October 16, 1971, braced with several sips from a bottle of brandy, Alvan L. Privette, Jr., Everett Burke and Luke Aluevich, all of Reno, embarked upon a hunting trip to eastern Nevada.. Burke, owner of the vehicle, began the driving chores and was known to be the driver until the party reached Fernley, Nevada. After passing through Fernley, neither Burke nor Privette remembered anything including the identity of the driver of Burke’s automobile until after the tragic accident which took the life of Luke Aluevich.

Twenty miles east of Lovelock, Nevada, the Burke vehicle narrowly passed a vehicle driven by Mathias Meehan, swerved in front of a semi-truck and trailer in the right lane, hit a roadside sign, swung back into the highway separation dividing the lanes of the expressway, struck Meehan’s automobile, careened into a ditch, became airborne for approximately 80 feet and then flipped end over end until it came to rest. All three men were thrown from the vehicle. Aluevich was killed almost immediately and Privette and Burke were badly injured. At trial, Meehan testified that he was traveling approximately 75 miles per hour when he was overtaken by the Burke vehicle whose speed he estimated to be approximately 90 miles per hour.

Privette commenced an action for his injuries against Burke who later died from causes not related directly to the accident. The suit was continued against the Special Administrator of Burke’s estate and culminated in a jury verdict in favor of the defendant.

On appeal, we are presented with the following issues:

1. Did the trial court err in refusing to instruct the jury that, absent direct evidence, there exists a presumption that the owner of a vehicle is the driver if he is riding in it at the time of an accident?

2. Was it error for the trial court to permit counsel to tell the jury in closing argument that contributory negligence in “any degree” would preclude recovery?

3. Was error committed when the trial court gave a jury instruction reciting verbatim a criminal statute defining principals to a crime?

4. In view of the nature and character of the evidence produced at trial, was it error for the trial court to instruct the jury on the defense of assumption of risk?

At trial, the circumstantial evidence establishing the identity of the driver at the time of the accident was conflicting. Burke, owner of the nearly new automobile, was known to be driving from the time it was loaded with supplies to the time the hunting party drove through Fernley. The party had scheduled no stops until reaching Lovelock. Privette remembers that he was in the back seat, Aluevich in the front passenger’s seat and that Burke was driving. Burke’s physical injuries arguably suggested that he struck the steering wheel upon exiting the vehicle. However, neither Privette nor Burke could remember who was driving at the time of the mishap nor any of the details.

Evidence consisting of the position of the bodies after the accident, the nature of their respective injuries, past experience of others on prior hunting and fishing trips with Privette and Burke where Privette had taken over the driving chores when he felt Burke was too intoxicated to drive and other evidence indicating that Burke habitually would turn over the driving duties to other companions on such trips contradicted the positive evidence that he was the driver.

That Privette may have been driving the car at the time of the accident obviously is of great importance in determining the issue of Burke’s negligence. None of the evidence presented at trial could be characterized as direct evidence bearing on the issue as to the identity of the driver. Direct evidence is evidence which, if believed, proves the fact in issue without the aid of an inference. Berger v. People, 224 P.2d 228 (Colo. 1950); Sullivan v. Mountain States Power Co., 9 P.2d 1038 (Ore. 1932). Thus, if the law of this state embraces the owner-driver presumption, the jury should have been instructed accordingly. See NRS 47.200.

Presumptions are no more than rules of evidence predicated on probability and general experience, which, in the present context, is to say that experience has shown that the owner of a vehicle if present in the vehicle is likely to be its driver. This experience translates into an identical probability which, together, form the foundation for the owner-driver presumption. See Thayer, A Preliminary Treatise on Evidence at the Common Law, 314 (1898).

Because the legislature did not include the owner-driver presumption in NRS 47.250¹ which lists disputable presumptions of that type, does not preclude its existence. The list is illustrative, not exclusive. See People v. Agnew, 107 P.2d 601, 604-05 (Cal. 1940).

The weight of authority, it appears, favors the owner-driver presumption. Brayman v. National State Bank of Boulder, 505 P.2d 11 (Colo. 1973); Sprader v. Mueller, 121 N.W.2d 176 (Minn. 1963); Moore v. Watkins, 293 S.W.2d 185 (Tenn. App. 1956); cf. Rocky Mt. Produce v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962), and Zimmerman v. District Court, 74 Nev. 344, 332 P.2d 654 (1958); contra, Fidelity & Casualty Co. of N.Y. v. Western Cas. & S. Co., 337 S.W.2d 566 (Mo. App. 1960), but compare Campbell v. Fry, 439 S.W.2d 545 (Mo.App. 1969). The rationale supporting the majority view is persuasive and we now formally acknowledge the existence of such a presumption as embodied within the law of this state.

As previously stated, there is substantial conflict in the record as to who was driving the car at the time of the accident. At this juncture in the proceedings, we have no way of ascertaining whether Privette was denied recovery at trial because the jury would not speculate as to who was driving the car or whether he was denied recovery because it was found that he was contributorily negligent or that he assumed the risk. However, an examination of the record does not obviate the possibility that the jury, heeding the court’s admonition against speculation, denied recovery to Privette because the circumstantial evidence presented by both sides was too equivocal and so hopelessly conflicting as to support anything but speculation. Had the instruction on the owner-driver presumption been given as requested, the burden of proof would have shifted to the defendant to counter the presumption and the result, very likely, would have been different. NRS 47.180.²

Because reversal for a new trial is warranted, further discussion of additional purported errors is unnecessary. However, we note some merit in the issues advanced which can be avoided at retrial.

Reversed and remanded.

Batjer and Thompson, JJ., concur.

1 NRS 47.250 Disputable presumptions. All other presumptions are disputable. The following are of that kind:

1. That an unlawful act was done with an unlawful intent.

2. That a person intends the ordinary consequences of his voluntary act.

3. That evidence willfully suppressed would be adverse if produced.

4. That higher evidence would be adverse from inferior being produced.

5. That money paid by one to another was due to the latter.

6. That a thing delivered by one to another belonged to the latter.

7. That things which a person possesses are owned by him.

8. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership.

9. That official duty has been regularly performed.

10. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction.

11. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties.

12. That a writing is truly dated.

13. That a letter duly directed and mailed was received in the regular course of the mail,

14. That a person not heard from in 7 years is dead.

15. That a child born in lawful wedlock is legitimate.

16. That the law has been obeyed.

17. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to him, when such presumption is necessary to perfect the title of such person or his successor in interest.

18. In situations not governed by the Uniform Commercial Code:

(a) That an obligation delivered up to the debtor has been paid.

(b) That private transactions have been fair and regular.

(c) That the ordinary course of business has been followed.

(d) That there was good and sufficient consideration for a written contract.

2 NRS 47.180 Presumptions generally: Effect; direct evidence.

1. A presumption, other than a presumption against the accused in a criminal action, imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable thán its existence.

2. As applied to presumptions, “direct evidence” means evidence which tends to establish the existence or nonexistence of the presumed fact independently of the basic facts.