Berghammer v. Smith, ADMIRAL-MERCHANTS

• Decision Date: 11 March 1971
• Docket Number: No. 54228,ADMIRAL-MERCHANTS,54228
• Parties: John F. BERGHAMMER and Lillian J. Berghammer, Appellees-Cross-Appellants, v. Bernard Andrew SMITH d/b/a Smith Trucking Company, Appellant-Cross-Appellee.MOTOR FREIGHT COMPANY, Appellee-Cross-Appellant, v. Bernard Andrew SMITH d/b/a Smith Trucking Company, Appellant-Cross-Appellee.
• Court: Iowa Supreme Court

Page 226

185 N.W.2d 226

46 A.L.R.3d 865

John F. BERGHAMMER and Lillian J. Berghammer, Appellees-Cross-Appellants, v. Bernard Andrew SMITH d/b/a Smith Trucking Company, Appellant-Cross-Appellee.

ADMIRAL-MERCHANTS MOTOR FREIGHT COMPANY, Appellee-Cross-Appellant, v. Bernard Andrew SMITH d/b/a Smith Trucking Company, Appellant-Cross-Appellee.

No. 54228.

Supreme Court of Iowa.

March 11, 1971.

Rehearing Denied April 5, 1971.

Nolan, Lucas & Nolan, Iowa City, for appellant-cross-appellee.

Nelson & Fassler, Cedar Rapids, for appellees-cross-appellants.

LeGRAND, Justice.

This appeal arises out of an automobile accident which occurred on September 27, 1966. The plaintiff, John F. Berghammer, was driving a truck owned by Admiral-Merchants Motor Freight Company when he was involved in a head-on collision with a truck owned by the defendant, Bernard Andrew Smith d/b/a Smith Trucking Company, which was then being driven by Smith's employee, Willis G. Bible, who was fatally injured in the accident.

Trial resulted in jury verdicts in favor of John F. Berghammer for personal injuries in the amount of $113,777.61; Lillian J. Berghammer for loss of consortium in the amount of $8000.00; and Admiral-Merchants Motor Freight Company for property damage in the amount of $38,920.89.

The issues raised on appeal as to all three judgments are identical except for the claim that Lillian J. Berghammer was not entitled to maintain her action for loss of consortium because Minnesota, where she and her husband reside, did not then recognize such a claim. Defendant argues Minnesota law determines her right to recover here.

I. We discuss first a procedural matter. It arises on plaintiff's motion to dismiss this appeal, which was ordered submitted with the case.

The jury returned sealed verdicts on November 25, 1969. The following morning the trial court made a calendar entry noting the verdicts and at the same time entered the following:

'Defendant is given until December 22, 1969 to file motions or pleadings in accord with the Iowa Rules of Civil Procedure. Clerk to notify counsel.'

Defendant filed a motion for judgment notwithstanding the verdict under rule 243, and motion for new trial under rule 244, Rules of Civil Procedure. On December 30, 1969, the court ruled adversely to defendant on both motions.

Defendant then filed notice of appeal. Plaintiff asks us to dismiss the appeal because the calendar entry of November 26, 1969, extending the time for filing motions was entered ex parte in violation of rule 247, R.C.P. Plaintiff filed a motion in district court to set aside this order and to strike the motions filed under rules 243 and 244, R.C.P. This motion was overruled.

The matter is crucial to defendant's right to appeal. If the order extending time was irregular and should be set aside, then the notice of appeal was not filed as provided in rule 335, R.C.P.

Rule 247 includes the following:

'Motions under rules 243 and 244 * * * must be filed within ten days after the verdict, report or decision is filed, or the jury is discharged, as the case may be, unless the court for good cause shown and not ex parte, grants additional time not to exceed 30 days.'

Rule 335 provides in part:

'(a) Appeals to the Supreme Court must be taken within, and not after, 30 days from the entry of the order, judgment or decree, unless a motion for a new trial or judgment notwithstanding the verdict is filed as provided in rule 247, and then within 30 days after the entry of the ruling on such motion. * * *'

A similar complaint was considered in Dunham v. Des Moines Railway Company, 240 Iowa 421, 429, 35 N.W.2d 578, 583. There the trial court had entered an ex parte order extending the time within which to file motion for new trial. We said, 'The extension was ex parte and thus in violation of Rule 247, supra. However irregular such an order may be, it was not jurisdictional as at the time the same was made, the court had full jurisdiction over both the parties and the subject matter. No doubt, upon timely objections, such order might be set aside.'

Plaintiff, who did make timely objection in this case, relies principally on the provisions of rule 247 and our decision in Dunham as authority for dismissal of the pending appeal.

Dunham also holds the requirements of rule 247 may be waived.

We believe there is evidence of waiver here, too. The dispute arises because of an apparent misunderstanding between counsel.

Defendant was represented by Nolan, Lucas and Nolan. At the time plaintiff first claimed a violation of rule 247, affidavits were filed by both D. C. Nolan and John T. Nolan setting out their recollection of events leading up to this dispute. They both state sealed verdicts were agreed on when the case was given to the jury and the matter of extending the time for filing motions was then discussed. They say an agreement was then reached that the losing party--at that time unknown--should have additional time within which to file motions under rules 243 and 244.

These affidavits were not controverted or refuted in any way. Plaintiff argues vehemently that he was not required to file any counter-affidavits. Perhaps not, but the failure to do so is hardly helpful to us in resolving a factual dispute between counsel.

If we accept the affidavits, then there was no ex parte order because of the agreement of counsel. If we reject them, then the rule was violated, the extension should be set aside, and the appeal dismissed because notice of appeal was not served within 30 days from the date of the verdict as required by rule 335.

When reputable and respected attorneys of this court file sworn statements as to matters of which they have personal knowledge, and when equally reputable and respected counsel fails to deny the statements made, although having equal knowledge of the circumstances under which the events occurred, we feel justified in concluding the sworn statements state the substantial truth. Of interest on this point see Tice v. Wilmington Chemical Corp., 259 Iowa i7, 34, 141 N.W.2d 616, 621. We hold plaintiff's motion to dismiss the appeal should be overruled.

This also disposes of plaintiff's cross-appeal which raises the same issue for our consideration.

II. The right of Lillian J. Berghammer to maintain her action for loss of consortium was first raised by defendant's motion under rule 105, Rules of Civil Procedure. The motion asked the trial court to hold that the law of Minnesota, the state of the Berghammer marital domicile, determines her right of recovery.

At the time of the accident Minnesota did not recognize a wife's cause of action for loss of consortium resulting from negligent injuries to her husband. Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154, 157. Iowa did. Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480. Minnesota now also allows such a recovery. Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865, decided September 19, 1969.

The trial court denied defendant's application under rule 105 and held Mrs. Berghammer's right to recover was to be determined by Iowa law. This issue was raised again later when defendant unsuccessfully asked that the consortium claim be withdrawn from the jury.

The doctrine relied on by defendant permits a court to apply to any issue in litigation the law of the state which has the most significant relationship with the parties and the principal interest in the issue, instead of resorting routinely to the law of the place where the accident occurred--lex loci delicti. We have recognized and adopted this principle in several cases, although never under the circumstances existing here. Fabricius v. Horgen, 257 Iowa 268, 277, 132 N.W.2d 410, 415--416; Flogel v. Flogel, 257 Iowa 547, 549, 133 N.W.2d 907, 908--910; and Fuerste v. Bemis, (Iowa), 156 N.W.2d 831, 834.

Before discussing this assignment, we consider plaintiff's assertion we should not review it at all because no proof was offered to support the contention Minnesota law is different from ours. It is true, of course, we do not judicially notice the law of other states. The one who relies on foreign law must prove it. In re Estate of Drumheller, 252 Iowa 1378, 1382, 1385, 110 N.W.2d 833, 835. As already mentioned, the question was raised by application under rule 105, R.C.P. A hearing was held at which plaintiff appeared and successfully resisted defendant's application. There is no record of these proceedings, but the trial court's order included a specific finding that Minnesota did not allow such recovery while Iowa did. In the absence of evidence to the contrary, we assume this finding was supported by proper proof of the foreign law. We hold the matter is rightly before us on this appeal.

Consortium has been defined as the 'conjugal fellowship of husband and wife; and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation'. Acuff v. Schmit, 248 Iowa 272, 274, 78 N.W.2d 480, 481.

The claim for loss of such 'conjugal fellowship' here raises an unusual conflicts of law problem. Ordinarily such conflict is between the law of the state where the accident occurred and that of the state where the suit is tried--the lex loci delicti and the lex fori. However, this suit is by a Minnesota plaintiff against an Illinois defendant in an Iowa court for damages arising out of an Iowa accident. Iowa law, then, is Both the lex loci and lex fori. We are asked to apply the law of a different state--Minnesota--because it is there the Berghammers maintained their domicile and because it has the most significant relationships with them and the particular issue involved.

Prior to 1965 we would have applied our own law to Mrs. Berghammer's claim as the law of the place where the accident occurred. See Fuerste v. Bemis, (Iowa), 156 N.W.2d 831, 832.

However, first in Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410, and again in Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d...