Adams v. Deur

• Decision Date: 09 December 1969
• Docket Number: No. 53602,53602
• Citation: 173 N.W.2d 100
• Parties: Norma E. ADAMS, Administrator of the Estate of Merrill R. Adams, Deceased, Appellee, v. Melvin DEUR and Jacob Vander Molen, d/b/a Peoria Stockyards, Roger Bandstra, and Clarence Richard De Boom, Appellants. Clarence Richard De BOOM, Cross-Petitioner, v. Melvin DEUR and Jacob Vander Molen, d/b/a Peoria Stockyards, and Roger Bandstra, Defendants to Cross-Petition.
• Court: Iowa Supreme Court

Page 100

173 N.W.2d 100

Norma E. ADAMS, Administrator of the Estate of Merrill R. Adams, Deceased, Appellee, v. Melvin DEUR and Jacob Vander Molen, d/b/a Peoria Stockyards, Roger Bandstra, and Clarence Richard De Boom, Appellants.

Clarence Richard De BOOM, Cross-Petitioner, v. Melvin DEUR and Jacob Vander Molen, d/b/a Peoria Stockyards, and Roger Bandstra, Defendants to Cross-Petition.

No. 53602.

Supreme Court of Iowa.

Dec. 9, 1969.

Bradshaw, Fowler, Proctor & Fairgrave, by Michael H. Figenshaw, Des Moines, for appellants, Melvin Deur, Jacob Vander Molen, d/b/a Peoria Stockyards, and Roger Bandstra.

Brierly, McCall & Girdner, Newton, for appellant, Clarence Richard DeBoom.

Johnson, Jordan & Lane, Knoxville, for appellee.

RAWLINGS, Justice.

Action at law against multiple defendants for damages resulting from claimed negligence-caused-death of plaintiff's decedent. He was killed instantly about 11:00 A.M., March 17, 1966, when struck by a motor vehicle at a point about three miles north of Knoxville, on the easterly portion of Highway 14, while serving as a utility company line repair project flagman.

Trial to jury resulted in judgment on verdict for plaintiff against all defendants, and from order overruling their motions for a new trial they appeal. We reverse.

Incidentally, the jury also found adverse to defendant DeBoom on his cross-petition against defendants Bandstra, Deur and Vander Molen, but no error is asserted on this appeal with regard to that finding.

Plaintiff is administrator of the estate of Merrill R. Adams, deceased.

Defendants Melvin Deur and Jacob Vander Molen, doing business as Peoria Stockyards, owned a cattle hauling truck-tractor and trailer unit, operated at the time here concerned by their employee and co-defendant Roger Bandstra.

Clarence Richard DeBoom, another defendant, then owned and was operating a Mercury automobile.

In connection with a line repair project, an Iowa Power and Light Company crew had blocked the easterly half of the northsouth two lane highway. Decedent was stationed at the south end of this work area. He was clearly visible from a distance of approximately half a mile to north bound vehicle operators.

Both the Peoria Stockyards truck and the DeBoom car were traveling in a northerly direction. At some distance from decedent's work station DeBoom passed the cattle truck and pulled back into the east lane, with the truck then following. In this alignment the vehicles proceeded north for about two and a half blocks before DeBoom turned his car toward or into the west lane in accord with decedent's signal.

Testimony as to subsequent events is in some degree of conflict.

Evidence introduced by plaintiff is to the effect both vehicles were reducing speed just before the accident, with the car slowing faster than the truck which was weaving 'back and forth' across the highway center line.

Bandstra says the car braked suddenly, causing him to swerve sharply into the east lane where decedent flagman was standing, and he 'just couldn't get the truck stopped in time.'

DeBoom testified he turned onto and remained in the west lane until after having passed the point where decedent was standing.

In any event, the record unquestionably reveals the truck collided with the rear of DeBoom's car and struck decedent.

Plaintiff alleged separate and concurring negligence on the part of DeBoom and Bandstra and derivatively his employers.

The jury returned a verdict of $101,173.05 for plaintiff against all defendants, to which $10,173.57 interest from date of death was added by trial court. See Abel v. Dodge, 261 Iowa ---, 152 N.W.2d 823, 828--829.

On appeal all defendants assert error by trial court in denying them the right to cross-examine witnesses for plaintiff, to introduce evidence relative to federal and state income taxes, past and future, as they relate to loss of services and support of a spouse or parent, and present worth of decedent's estate.

An attendant exception is directed to trial court's refusal to instruct the jury regarding consideration of these tax consequences.

Defendants also claim trial court erroneously overruled their objections to the testimony of plaintiff's expert witness. Another error relied on by defendants for a reversal goes to the matter of claimed duplication of damages.

Defendant DeBoom alone urges in support of a reversal, trial court erred in, overruling his motion for a mistrial; failing to direct a verdict in his favor; submitting to the jury instructions as to certain specifications of negligence not pled; and giving other instructions claimed to be vague or misleading.

All defendants assert reversible error in denying their respective motions for a new trial premised upon the foregoing asserted errors.

These complaints will not necessarily be considered in the order presented, and overlapping assignments will be dealt with accordingly.

I. Our review is confined to errors properly assigned and argued. Rule 344(a)(3) and (4) (First) (Third), Rules of Civil Procedure. And it is not for us to weigh the evidence or pass on credibility of witnesses. Rule 344(f)(1), R.C.P. Furthermore, he who pleads and relies upon the affirmative of an issue must carry the burden of proving it by a preponderance of the evidence. Rule 344(f)(5)(6), R.C.P.

II. At the outset it should be noted no defendant here claims plaintiff's decedent was in any manner guilty of contributory negligence. And as we said in Hartwig v. Olson, Iowa, 158 N.W.2d 81, 88: 'A worker on the highways is not charged with the same degree of care as an ordinary pedestrian. Plaintiff was required to exercise only such reasonable care and observation for his safety as was under the circumstances called for. (Authorities cited). We recognized the same rule in Pappas v. Evans, 242 Iowa 804, 48 N.W.2d 298, where a railroad worker was injured by a motor vehicle.'

III. Prior to trial plaintiff moved for an order in limine, stating in relevant part: 'The plaintiff in this case asks damages for the wrongful death of her decedent. The evidence will show that the decedent at the time of his death was employed for wages of approximately $9,000.00 per year. A principal item of damage will be loss of services and support to the surviving spouse and three minor children of the decedent. The plaintiff will expect to introduce evidence as to the gross earnings of the decedent for the last several years of his life. The Plaintiff wishes to be able to do so without cross examination of witnesses as to the amount by which income tax may have reduced gross earnings, and without comment by counsel in argument to the jury that gross earnings should be reduced by income taxes * * *.' (Emphasis supplied). Trial court agreed with plaintiff and an order in limine was accordingly entered.

In course of trial Norma E. Adams, decedent's widow, and Dr. William F. Kenkel, a professor of family sociology at the University of Kentucky, were called to testify for plaintiff.

As to each of these witnesses defendants made timely, jury-absent offers of proof regarding decedent's income tax payments for the years 1961--1965, 'as relevant upon the question of damages.'

These proffers were overruled with trial court's observation its ruling appeared to be in accord with the majority view. Even so, we are persuaded that portion of the order in limine quoted supra, and denial of defendants' subsequent offers of proof constitute reversible error.

It might momentarily appear we are here confronted with impact of taxes paid on income, limited to Past services and support by a spouse and parent. But closer analysis reveals both the error and impracticality of such a restricted approach.

In the first place, the order sustaining the motion in limine and defendants' proffers when fairly interpreted, disclose the parties and trial court were referring to determination of damages generally.

Next, it is difficult if not impossible to draw a clear cut meaningful line of demarcation between tax consequences, past and future, with regard to net worth of a decedent's estate.

Moreover, since we are here confronted with what is apparently an issue of first impression in Iowa, coupled with the fact this case must be remanded for a new trial, a consideration, perforce limited by the record to probable income taxes payable, both state and federal, as they relate to or may affect present estate value, may serve to eliminate a second appeal.

With relatively few exceptions all earnings are attended by tax consequences. This means that out of future income must come taxes before there can be any savings. So, what an individual will probably receive as the result of his or her own efforts is, in most instances, governed by taxes payable on such earnings. Thus the estate, if any, which a person would be apt to have accumulated, but for untimely death, is directly affected by taxes.

Apparently most courts have heretofore held the deduction of taxes from a decedent's likely income should not be brought to the jury's attention. This stand is premised, in large part, upon the theory that prospective taxes are too speculative and conjectural. See 22 Am.Jur.2d, Death, section 154, page 719, and Annos. 63 A.L.R.2d 1393, 1398.

Conversely other authorities have adopted the view that taxes attendant upon a decedent's probable earnings or income should, in proper cases, be admissible in evidence the same as other offsetting factors. See 22 Am.Jur.2d, Death, section 154, pages 719--720, and Annos. 63 A.L.R.2d 1393, 1404.

It is to us self-evident future probable taxes are no more speculative than any other element a trier of the facts is permitted, if not required, to consider in the determination of wrongful death damages. Reference to a relatively few such factors will suffice: Determination of anticipated living costs; life expectancy; future earnings or income; prospective value of the dollar; and expected interest rates.

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