Amelsburg v. Lunning

• Court: Iowa Supreme Court
• Citation: Amelsburg v. Lunning, 234 Iowa 852, 14 N.W.2d 680 (Iowa 1944)
• Decision Date: 06 June 1944
• Docket Number: 46450.
• Parties: AMELSBURG v. LUNNING.

14 N.W.2d 680

234 Iowa 852

AMELSBURG v. LUNNING.

No. 46450.

Supreme Court of Iowa

June 6, 1944

Frank W. Senneff, of Britt, and Jno. A. Senneff, of Mason City, for appellant.

Thompson & Weible, of Forest City, for appellee.

WENNERSTRUM Justice.

Plaintiff-appellee in an action at law, sought damages for injuries received as the result of an intersection collision between an automobile which he was driving and one driven by the defendant. The issues presented by the pleadings and the evidence were submitted to a jury, which returned a verdict in favor of the plaintiff. The court overruled the defendant's motion for a new trial and exceptions to instructions and judgment was thereafter entered on the jury's verdict. The defendant has appealed.

The collision, which has occasioned this litigation, occurred about 1:00 P. M. on December 6, 1941. Prior to the time of the collision the appellee was driving his automobile in a northerly direction on a county highway about one mile north of Thompson, Iowa. The appellant was driving his automobile west on a country road. There was a stop sign on this road but the appellant did not stop when he got to the intersection. One of the contentions of the appellant is that the brakes of his automobile were frozen as the result of driving through slush the previous day. It is his claim that on the day of the collision he did not try the brakes before he got to the scene of the accident and that when he endeavored to stop his automobile, as he approached the county highway, the brakes did not function and he proceeded into the intersection with the resulting collision. The evidence discloses that as appellant came to the intersection he was driving about ten or fifteen miles an hour but when he got about three rods from the stop sign he endeavored to make use of the foot brake but it did not work. The appellant did not testify that he tried to use the emergency brake and there is no evidence whether it would have effectively stopped the car if it had been used.

The questions presented on this appeal are: (1) The excessiveness of the verdict, (2) error in giving of certain instructions and (3) the refusal to give certain requested instructions.

I. The appellant particularly complains of the allowance by the jury of the sum of $425 for loss of earnings, it being his claim that the evidence did not justify the submission of this element of damage. This claim on the part of the appellant necessitates a brief summary of the evidence. It is shown that the appellee raised about the same number of hogs in 1941 as he did in 1942; that he milked the same number of cows in 1942 as he had in 1941, and that the crops that he planted were about the same in 1942 as in 1941. The appellant claims that under these circumstances there was no basis on which the jury could allow the appellee the sum of $425 as damages for loss of earnings.

The appellee testified that he did not perform any labor on the farm in 1942 and did not engage in its supervision or management. He further testified that before the accident his health was good and that he had been able to do all the work on the farm but since the accident he had not been able to do so. He further stated, over the objection that it was improper to prove damages by an estimate of earnings, that his net earnings in 1942 were $500 less than in 1941. There was further testimony presented relative to the work he had done on the farm and as to the fact that his injuries had prevented him from carrying on his usual farming activities.

We do not believe that there was any error in the allowance of the damage for loss of earnings which the jury included in its verdict. There was some testimony which supported this particular claim. The consideration of this element of damage finds support in 25 C.J.S., Damages, pp 617, 618, § 86, where it is stated:

"*** Where plaintiff's earnings are not measured by a fixed wage, it is proper to show the business in which he was engaged and the extent and amount of his ordinary business or its average profits, together with the particular part of the business transacted by him. *** In any event, in order to establish the value of plaintiff's services in his business, it is proper to show the character of the business together with the capital and the assistance employed, and it is also proper to show the profits, not as a distinct element of damage, but as showing the value of plaintiff's time and services."

We feel that the evidence as presented in this case all had a bearing upon the value of the appellee's time and services and that the court was not in error in submitting this element of damage, upon which the jury based a portion of its verdict. The case of Alitz v. Minneapolis & St. L. R. Co., 196 Iowa 437, 443, 193 N.W. 423, 425, is a further authority for the submission of the element of damage of which complaint is made by appellant. In this last cited case it is stated:

"*** It is true the court permitted plaintiff to testify to the nature of his business and extent of his earnings before his injury, and the manner and extent to which his earning capacity was affected or diminished by such injury, but in its charge to the jury the court said that, in case of a verdict for plaintiff, it was competent for the jury to include in the damages assessed, the hospital, nursing, and doctor's bills reasonably incurred, also the reasonable value of his loss of time and earnings in his business as a farmer, but-'not for profits as such, though these may be considered in connection with the amount of land he was farming, the persons employed, and the expenses and net income before and after his injury, with the amount of his own time and attention thereto in order to determine how much his earnings from his own services in his business were worth and the loss he has suffered as the proximate result of his injury.' There is nothing in this evidence or in the instruction of which the appellant can justly complain. The justice and propriety of such rule have often been recognized. ***" (Citing cases.)

We do not propose to quote from other authorities which authorize the allowance of damages of which complaint is here made. However, in support of this holding reference is here made to Jordan v. Cedar Rapids & M. C. R. Co., 124 Iowa 177, 179, 182, 99 N.W. 693; Mitchell v. Chicago, R. I. & P. R. Co., 138 Iowa 283, 290, 294, 114 N.W. 622.

Annotations of the cases bearing upon this question, and particularly as to the damages that might be allowed a farmer under circumstances such as are presented in this case, are found in: 9 A.L.R. 510, 514; 27 A.L.R. 430, 433; 63 A.L.R. 143, 148; 122 A.L.R. 297, 307.

II. The appellant complains of one of the instructions which related to the...