Batliner v. Sallee

• Decision Date: 11 December 1962
• Docket Number: No. 50791,50791
• Citation: 118 N.W.2d 552,254 Iowa 561
• Parties: John O. BATLINER, Appellant, v. Wesley E. SALLEE and Harper Sand, Inc., Appellees.
• Court: Iowa Supreme Court

Page 552

118 N.W.2d 552

254 Iowa 561

John O. BATLINER, Appellant, v. Wesley E. SALLEE and Harper Sand, Inc., Appellees.

No. 50791.

Supreme Court of Iowa.

Dec. 11, 1962.

Porter, Heithoff & Pratt, Council Bluffs, for appellant.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellees.

STUART, Justice.

Plaintiff was the owner and operator of an automobile which collided at an intersection in Council Bluffs, Iowa with a semitrailer truck owned by the defendant, Harper Sand, Inc., and driven by the defendant Sallee. Plaintiff had the right of way. The case was tried to the court. Defendants did not offer any evidence and at the close of all evidence made a motion for directed verdict on which the trial court reserved ruling.

The following day the court found as a matter of fact that the plaintiff failed to keep a proper lookout, reduce his speed to a reasonable and proper rate and to have his car under control. Upon these factual findings the court concluded that the plaintiff was guilty of contributory negligence and made the following judgment entry:

'It is ordered that defendants motion to dismiss plaintiff's petition on the grounds that plaintiff failed to carry his burden of proof and to establish his freedom from contributory negligence be and the same is hereby sustained.

'It is further ordered that plaintiffs' petition be and the same is hereby dismissed and judgment is hereby entered against plaintiff for costs to be taxed by the Clerk of this Court.'

Appellant contends: (1) The court erred in sustaining the motion to dismiss on the ground that he failed to carry the burden of proving freedom from contributory negligence, (2) the record does not support a finding of fact that plaintiff was contributorily negligent. Under these assignments of error, the evidence must be viewed in opposite lights, in the first, most favorable to appellant, in the second, most favorable to appellee.

I. The importance of the first statement of error is diminished by concessions of appellant in both written and oral argument that the real issue is the sufficiency of the evidence to sustain the trial court's findings. Appellant reasons that he would not benefit by a reversal on the first error if a factual finding could still be made against him. This of course would be true if the matter were resubmitted to the same trial judge

There is ample evidence to support a finding by the trier of fact that appellant was free from contributory negligence. Were we faced squarely with a ruling of the trial court sustaining a motion to dismiss, we would reverse. However, in view of the above concessions and the uncertainty and ambiguity in the court's ruling this question is not directly before us.

The trial court treated the appellees motion for a directed verdict as a motion to dismiss. The judgment entry sustaining the motion to dismiss hereinabove set out was preceded by a finding of fact and conclusion of law, which gives it the appearance of having been a decision on the facts. Because of the uncertainty and ambiguity in the court's ruling it is incumbent upon us to determine the court's intention. The instrument must be construed in its entirety, giving effect to that which is clearly implied as well as that which is expressed. Weir & Russell Lumber Co. v. Kempf, 234 Iowa 450, 455, 12 N.W.2d 857, 860; Sutton v. Schnack, 224 Iowa 251, 257, 275 N.W. 870, 873. 'Such construction should be given to a judgment as will give force and effect to every word of it, if possible, and make it as a whole consistent, effective and reasonable.' 30 Am.Jur. 212, Judgments, Sec. 69.

If the trial court had been ruling only on the motion to dismiss, there would have been no occasion for a detailed finding of fact and conclusion of law. All the evidence was in and the matter ready for the court's final decision. The trial court obviously did more than sustain the motion to dismiss. We interpret the court's ruling to be a finding of fact upon the evidence produced and a judgment in favor of the defendant. The phraseology used in the judgment entry does not correctly reflect the actual disposition of the case. We have held that the use of a particular form of words is not essential to a judgment. Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435. There is no conflict in substance in any of the parts of this ruling. The judgment entry dismissing the action at plaintiff's cost is entirely consistent with his findings and conclusions. We hold that the decision of the court was a finding of fact and not a ruling as a matter of law. This appeal must be determined on the second assignment of error.

II. Appellant contends that there is not sufficient evidence in the record to support the trial courts findings that appellant (1) failed to keep a proper lookout, (2) failed to reduce his speed to a reasonable and proper rate, and (3) failed to have his car under control. Under the circumstances, this is equivalent to the position that the appellant was free from contributory negligence as a matter of law. We do not agree that the record supports this position.

The findings of a trial judge in jury waived cases have the effect of a special verdict. Rules of Civil Procedure, rule 334, 58 I.C.A. We must view the evidence in the light most favorable...