Century" 21" Shows v. Owens

• Decision Date: 09 September 1968
• Docket Number: No. 19035.,19035.
• Citation: 400 F.2d 603
• Parties: CENTURY "21" SHOWS and Kenneth Wayne O'Guin, Appellants, v. Charles W. OWENS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.2d 603 (1968)

CENTURY "21" SHOWS and Kenneth Wayne O'Guin, Appellants, v. Charles W. OWENS, Appellee.

No. 19035.

United States Court of Appeals Eighth Circuit.

September 9, 1968.

COPYRIGHT MATERIAL OMITTED

John D. Randall, Cedar Rapids, Iowa, for appellants.

John C. Beekman and William C. Ball, Waterloo, Iowa, for appellee.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

GIBSON, Circuit Judge.

On August 1, 1965 about noon the plaintiff Charles W. Owens, while operating his motorcycle on U. S. Highway 218, approximately 2 ½ miles south of LaPorte City, Iowa, in Benton County, was hit or sideswiped in his own southbound lane by a 1962 GMC pickup truck owned by the defendant Century "21" Shows and operated by its employee, defendant Kenneth Wayne O'Guin. A judgment based on a jury verdict for $85,000 was entered for plaintiff and the defendants appeal. This is a diversity case, Century being a Florida corporation and O'Guin a resident of Tennessee. The substantive law of Iowa applies. We affirm.

O'Guin, a young man of 17 or 18 years, had driven the pickup truck from Quincy, Illinois, after he had stayed up late the night before operating the dodge bumper car rides for Century and dismantling the ride to load on the moving trucks. After finishing these chores O'Guin went to sleep in the pickup truck, awoke, and left Quincy before daylight. He was traveling in a northerly direction along Highway 218 at a speed of 30 to 40 miles an hour when he approached a sweeping, almost right-angle curve to the left. The roadway was 24 feet wide and allowed a field of vision of about 300 feet along and around the curve. Going into the curve his truck went off the road on the right-hand shoulder and in turning back onto the road he either turned too abruptly or a drop-off of 2 to 5 inches from the pavement to the shoulder caused his truck to veer sharply across his lane into the southbound lane, where he came in contact with Owens' motorcycle. Viewing the evidence most favorable to the verdict, the truck left the road completely on the curve and returned to the roadway in 47 feet, proceeded 62 feet as measured from where the left front tire of the pickup came back on the highway, to the center line of the highway and then proceeded approximately 18 feet from the center line to the point of impact at approximately the middle of the southbound lane. The pickup then came to rest 121 feet from the point where the left front tire crossed the center line to a ditch on the left-hand side or west side of the road. O'Guin did not see the plaintiff Owens until he had turned the truck back onto the highway. At this point in time Owens was 50 to 60 feet from the point of impact. Thus, O'Guin was approximately 80 feet from the point of impact when he turned back onto the highway. Traveling at 30 miles per hour he would be proceeding 44 feet per second and would cover this distance in less than two seconds.

Owens and his daughter Patricia, who was also riding on the motorcycle, were traveling south at 50 to 55 miles an hour approaching the curve. Owens saw the pickup truck leave the road but did not realize that the driver O'Guin had inadvertently driven onto the shoulder. According to Owens, the truck had proceeded completely onto the shoulder and he did not realize the pickup truck was in any difficulty until it came back onto the highway and abruptly crossed into his lane. Owens testified that only two or three seconds elapsed from the time he saw the pickup go off the road until the time of the collision. This estimate of time is verified by the speed and distances established by the evidence. Owens had slowed to about 45 to 50 miles per hour at the time of the impact. When O'Guin noticed that he was going to hit the motorcycle he applied his brakes as forcefully as he could and attempted to turn to the right. The left front of the pickup came in contact with the left side of the motorcycle and the left side of the person of Owens. Owens managed to stay on the motorcycle and bring it to a stop but Patricia Owens was thrown off into a ditch at the side of the highway, receiving injuries from which she subsequently died. The injuries and subsequent death of Patricia Owens are not an issue in this case, as a separate suit was filed for her death and settled prior to this trial. Owens suffered severe injuries which will be discussed in more detail under the issue of the excessiveness of the verdict.

Defendants contend the trial court erred in (1) giving instructions on specific negligence when only general negligence was set out in the complaint, (2) failure to give defendants' requested instruction on highway usage, sudden emergency and last clear chance, (3) refusing to permit defendants to cross-examine plaintiff on the use of intoxicating liquors, (4) allowing the fact and nature of Patricia Owens' injuries and death to be received in evidence, and (5) refusing to set the verdict of $85,000 aside as excessive.

The complaint alleged that O'Guin "negligently drove and operated" the pickup truck "into the lane for opposing traffic and into plaintiff who was driving a motor bike in his own lane of traffic." The Court in Instruction No. 2 stated that plaintiff specifically claimed that defendant O'Guin was negligent in failing to keep a proper lookout and failing to have his vehicle under control, in failing to drive his vehicle on the right-hand side of the road, and in failing to give way to the right to oncoming traffic. These specifications were not pleaded but were fully developed by the evidence.

Defendants objected to the instruction on lookout because it was not specifically pleaded. Defendants contend the giving of specifications of negligence not pleaded, deprived defendants of the right to be informed of the negligence of which they are charged and of an opportunity to give a defense, citing Davis v. Hoskinson, 228 Iowa 193, 290 N.W. 497 (1940); and also claim prejudicial error in submitting an issue which has no support in the record. Brown v. Lyon, 258 Iowa 1216, 142 N.W.2d 536 (1966).

The pleadings are governed by federal law. Rule 8(a), Fed.R.Civ.P. states in part that the claim for relief:

"* * * shall contain * * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and

* * * * * *

"(e) (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading * * are required."

Under this rule a general averment of negligence, stating simply and concisely the facts of the collision is sufficient. Defendants are given ample and sufficient notice of the type of claim presented.

As discussed in 1A Barron and Holtzoff, Federal Practice and Procedure, § 251 (1960) at p. 29:

"The only function left to be performed by the pleadings alone is that of notice. For these reasons, pleadings under the rules may properly be a generalized summary of the party\'s position, sufficient to advise the party for which incident he is being sued, sufficient to show what was decided for purposes of res judicata, and sufficient to indicate whether the case should be tried to the court or to a jury. No more is demanded of pleadings than this; * * *".

If defendants desire a more definite statement a motion may be filed under Rule 12(e); and as is usually the case the specifics of negligence are developed in discovery proceedings. Again as analyzed by Barron and Holtzoff, ibid, § 270, pp. 119-123:

"* * * a detailed statement of the circumstances constituting negligence is not necessary or desirable, and a general allegation of negligence will be sufficient. If defendant needs details as to the specific manner in which he is claimed to have been negligent, he can obtain them under the provisions for discovery."

The specifics of negligence in this case were fully developed at the trial and it is apparent on the record that this collision was caused by O'Guin's negligence in the operation of the pickup truck and in allowing that vehicle to cross the center line of the roadway, striking the plaintiff. The specific acts of negligence in the Court's instruction were developed at the trial, were certainly embraced in the general averment of negligence, and were properly set forth in the instruction.

Even issues not raised by the pleadings but tried by express and implied consent of the parties shall be treated as raised. Rule 15(b), Fed.R. Civ.P.¹

We do not think the defendants' objections to the instructions were well taken.

Defendants claim that the negligence pleaded is based on I.C.A. § 321. 298, which in substance commands approaching vehicles to drive to the right allowing one-half of the traveled way to each vehicle; but that under Iowa law every vehicle outside of cities and towns has a right to occupy any part of the road, except when meeting another vehicle. Wilson v. Oxborrow, 220 Iowa 1135, 264 N.W. 1 (1935). The specifications of negligence relating to failure to drive a vehicle on the right-hand side of the road is alleged to have been taken from I.C.A. § 321.297; this section requires that an automobile be operated on the right-hand side of the street in cities and towns. Defendants desired an instruction based on the Wilson case stating that they:

"* * * may use any portion of said highway except upon meeting an automobile being operated in the opposite direction * * *, and that

* * * * * *

"* * * such law does not mean that in the country each driver shall at all times be on the right side of the road. Each driver in the country is entitled to the use of the entire highway. Each has the right to drive upon the left hand side of the road except when such drivers are about to meet. Even then, the presence of a driver upon the left hand side of the road and the resultant collision, and the prima facie case of negligence arising therefrom, is subject to being rebutted * * *."

This collision occurred as the vehicles were at the point of passing each...