Ankrum v. City of Marshalltown

• Decision Date: 17 May 1898
• Citation: 75 N.W. 360,105 Iowa 493
• Parties: H. ANKRUM, Appellant v. THE CITY OF MARSHALLTOWN
• Court: Iowa Supreme Court

75 N.W. 360

105 Iowa 493

H. ANKRUM, Appellant v. THE CITY OF MARSHALLTOWN

Supreme Court of Iowa, Des Moines

May 17, 1898

Appeal from Marshall District Court.--HON. G. W. BURNHAM, Judge.

ACTION to recover five hundred dollars for personal injuries caused by a defective plank sidewalk. Defendant answered, denying generally. The case was tried to a jury, and a verdict in favor of the plaintiff for three hundred dollars, together with certain special findings, returned. On September 15 1896, defendant moved for judgment, notwithstanding the verdict, and, subject to that motion, also moved to set aside the verdict, and to reduce the amount thereof to fifty dollars. Subject to both of said motions, the defendant on the same day moved for a new trial. On September 16th the plaintiff moved for leave to amend his petition as per amendment accompanying the motion. On September 23d plaintiff's motion for leave to amend and defendant's motion for judgment were both overruled, and defendant's motion to reduce the amount of the verdict to fifty dollars was sustained, and judgment entered accordingly. No ruling was made upon defendant's motion for a new trial. Plaintiff appeals.

Reversed.

J. M Holt and J. L. Carney for appellant.

C. H E. Boardman and H. E. J. Boardman for appellee.

OPINION

GIVEN, J.

I.

Plaintiff assigns and argues errors as occurring in the course of the trial prior to the rendering of the verdict. The verdict is in favor of the plaintiff, and he has not complained thereof, by asking a new trial, or otherwise, but is content therewith as rendered. He has not afforded the lower court opportunity to review these alleged errors occurring before the verdict, and cannot, therefore, be heard to urge them in this court. The only questions presented by this appeal are whether the court erred in refusing plaintiff leave to file his proffered amendment, and whether it erred in sustaining the defendant's motion to reduce the amount of the verdict. These questions we will now proceed to consider, and first as to the proffered amendment.

II. The petition, after charging negligence upon the defendant, and setting forth the manner in which the injury was received, alleges that thereby plaintiff "received great bodily injury and harm, and was made sick and lame, and was confined to his house and bed, and detained from his business, in the busiest season of the year, for a period of two months, in consequence whereof he was compelled to expend the sum of twenty dollars for help to take his place in the field as a farmer, and in the further sum of thirty dollars for medical attendance and nursing, and has been made permanently lame, causing a permanent disability, to his damage in the sum of four hundred and fifty dollars." The amendment which plaintiff asked leave to file was to insert after the word "disability," as quoted above, the words, "and has suffered great mental anguish and bodily pain, and has undergone great physical suffering." This leave was asked to conform the petition to the proof made. While it is true the plaintiff and his wife were permitted to testify, with out objection, to pain and suffering endured by the plaintiff, this evidence was admissible as tending to show the disability alleged, and was therefore not open to objection; and, by not objecting, the defendant should not be understood as having conceded plaintiff's right to recover for mental anguish and bodily pain. This application was not made until several days after the verdict was rendered, and was an application addressed to the discretion of the court. Whether to grant such leave was largely in the discretion of the court, and we have many times said that we will not interfere with the exercise of that discretion except where it appears to have been abused. Made when it was, we cannot say that the court abused its discretion in refusing to allow the amendment.

III. Defendant's motion to reduce the verdict was upon the ground that the damages prayed for in the petition, and as instructed by the court, were...