Boyle v. Bornholtz
| Decision Date | 19 October 1937 |
| Docket Number | 43843. |
| Citation | 275 N.W. 479,224 Iowa 90 |
| Parties | BOYLE v. BORNHOLTZ. |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; Miles W. Newby, Judge.
Defendant appeals from a verdict against him for wrongfully causing the death of James Boyle.
Affirmed.
Ralph Prichard and Shull & Stilwill, all of Sioux City, for appellant.
Clem & Miller, of Sioux City, for appellee.
Plaintiff as administrator of the estate of James Boyle, deceased brought this action alleging that the defendant was a regular merchant policeman in Sioux City, Iowa; that on December 5 1935, the defendant, without cause or provocation, and with malice, shot James Boyle while he was running away from the defendant; and on December 10, 1935, the said James Boyle died from the injury received. Plaintiff asked actual damages in the sum of $14,650, and for exemplary damages in the sum of $10,000.
The defendant in his answer alleged that his duties as a merchant policeman consisted of guarding various business properties in Sioux City, Iowa; that about 1 o'clock on the morning of December 6th, while in the performance of his duties as a merchant policeman, James Boyle and Jack Gormally suddenly jumped out on the defendant, and " shoved a gun into the defendant's ribs and shouted ‘ Stick 'me up and don't be slow,’ " that defendant refused to hold up his hands as requested, and then the said Gormally and Boyle attacked him, and defendant, in resisting said attack and to protect his life, drew his revolver and in self-defense shot at Gormally and Boyle; that defendant acted only in self-defense to prevent the robbery and injury to his person. Defendant further answered that subsequent to the attempted robbery the said Jack Gormally entered a plea of guilty to an indictment charging him with assault with intent to rob the defendant; that the defendant in all of his acts at said time and place was acting in line with his duties as night watchman and policeman, and whatever he did was for the sole and only purpose of protecting property and to save his person from injury.
The plaintiff filed a reply in which he denied that either Boyle or Gormally had a gun; that there was any attempt to rob or cause physical injuries to the defendant; that defendant was acting in self-defense; and that defendant was acting in the performance of his duties at the time he shot Boyle when he was on a public street in said city.
On April 7, 1936, the jury returned a verdict for the plaintiff in the sum of $4,000. It allowed actual damages in the sum of $1,500, and exemplary damages in the sum of $2,500. The defendant filed a motion for a new trial and exceptions to instructions. On August 6, 1936, the following order was entered:
Subsequently, the plaintiff remitted the sum of $2,500, being the amount of exemplary damages awarded plaintiff by the jury.
The first assignment of error is that the court erred in submitting the question of exemplary damages to the jury because the action was not commenced by James Boyle, but was commenced by the administrator of his estate.
Code, §§ 10957-10959, providing, respectively, for the survival of actions and for actions by or against legal representatives, do not create a cause of action for wrongful death, but abrogate the common-law rule that an existing cause of action was terminated by the death of the party entitled to recover. The original cause of action that accrued to the injured party in his lifetime survives. Code, § 10959, provides that: " Such action shall be deemed a continuing one, and to have accrued to such representative or successor at the time it would have accrued to the deceased if he had survived." Flynn v. R. R. Co., 159 Iowa 571, 141 N.W. 401, 45 L.R.A.(N.S.) 1098; Dwyer v. R. R. Co., 84 Iowa 479, 51 N.W. 244, 35 Am.St.Rep. 322; McCoullough v. R. R. Co., 160 Iowa 524, 142 N.W. 67, 47 L.R.A.(N.S.) 23.
The measure of damages is not the same in actions commenced by the injured party and in actions commenced by his administrator. If brought by the injured party, it is to right the wrong done to him. If brought by the administrator, it is for the purpose of repairing the damages to his estate. In the latter case, the measure of recovery is the reasonable present value of his life to his estate. Union Mill v. Prenzler, 100 Iowa 540, 69 N.W. 876; Dwyer v. R. R. Co., supra; Cerny v. Secor, 211 Iowa 1232, 234 N.W. 193; Shutes v. Weeks, 220 Iowa 616, 262 N.W. 518.
If the action is commenced by the administrator he cannot recover for loss or pain and suffering sustained by the deceased. Flynn v. R. R. Co., 159 Iowa 571, 141 N.W. 401, 45 L.R.A.(N.S.) 1098; Dwyer v. R. R. Co., 84 Iowa 479, 51 N.W. 244, 35 Am.St.Rep. 322; Droullard v. Rudolph, 207 Iowa 367, 223 N.W. 100.
Recognizing this distinction in the measure of damages, we held in the case of Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876, that if the action is brought by the person injured, and he dies during the pendency of the action, his administrator may recover exemplary damages; but if the action is commenced by the administrator after the death of the injured party, such damages are not permissible. See Armbruster v. R. R. Co., 166 Iowa 155, at page 163, 147 N.W. 337.
This court is committed to the rule that a personal representative is limited to a recovery of damages to the estate of the decedent. This action having been commenced by the administrator of the estate of decedent, the trial court erred in submitting the question of exemplary damages to the jury.
The remaining inquiry is, Did the remittitur of all exemplary damages cure the error?
If the damages awarded are excessive and show prejudice and passion, the entire verdict is vitiated, a new trial should be granted, and a remission will not cure the error. Haines v. M. S. Welker & Co., 182 Iowa 431, 165 N.W. 1027; Ahrens v. Fenton, 138 Iowa, 559, 115 N.W. 233; Brause v. Brause, 190 Iowa 329, 177 N.W. 65.
The amount of the exemplary damages was peculiarly within the discretion of the jury, and the verdict will not be disturbed unless the " conclusion is irresistible that the amount allowed is so great as to evince prejudice on the part of the jury." Saunders v. Mullen, 66 Iowa 728, 24 N.W. 529; Brause v. Brause, 190 Iowa 329, 177 N.W. 65; Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290, L.R.A.1917D, 273; Gregory v. Sorenson, 214 Iowa 1374, 242 N.W. 91.
We conclude that the total amount of damages awarded by the jury and the difference between the actual damages and punitive damages allowed are not so palpably excessive as to justify a holding that the verdict was the result of passion and prejudice; also, the evidence indicating malice was admissible on the question of actual damages. It follows that the verdict for actual damages was not affected by the submission of the question of exemplary damages to the jury, and the error was cured by the remittitur.
The trial court instructed the jury on the law of self-defense in instructions 7 and 8; the material portions of which are as follows:
" When the life of one attacked is in imminent danger, or he is in imminent danger of great bodily harm, or when from the attacks of his assailant he believes or has reasonable ground as a cautious man to believe, that he is in imminent danger of losing his life or of receiving great bodily harm from his assailant, the right of the party attacked to defend himself from such danger or apprehended danger may be exercised by him, and he may use that right to the extent which a reasonably cautious and courageous man would deem necessary under the same or similar circumstances.
If the death of his assailant results from the reasonable defense of himself, as in this paragraph explained, he is excused for his act and cannot be held to account for damages.
Par. 8. And so in connection with the last preceding paragraph you are instructed that if * * * it then and there reasonably appeared to the said Bornholtz as a reasonably cautious and courageous man he was in imminent danger of losing his life or of receiving great personal injury at the hands of the said James Boyle, and that the said defendant fired the shots in the protection of his life or person, while he was under the impression as a reasonably cautious and courageous man, that he was in imminent peril of losing his life or of receiving some serious personal injury to himself, then if you so find your verdict will be for the defendant. But if you do not so find or you are satisfied from the facts and circumstances shown by the evidence upon the trial that the defendant used greater force or more hazardous means to protect his life or person than reasonably appeared necessary to him as a cautious and courageous man under the same or similar circumstances, then the act of the defendant was unlawful and the defendant would fail on this phase of his defense."
Defendant's criticism of these instructions is as follows: " The Court erred in giving instructions numbered seven and eight in that the Court stated that the degree of force which the defendant Bornholtz could use in defending himself was to be based on what a...
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