Brooks v. Gilbert

• Decision Date: 22 September 1959
• Docket Number: No. 49728,49728
• Citation: 250 Iowa 1164,98 N.W.2d 309
• Parties: Deborah BROOKS, by her next friend and father, Gaylord Brooks, and Gaylord Brooks, Appellees, v. Robert H. GILBERT and Lorraine C. Gilbert, Appellants.
• Court: Iowa Supreme Court

Page 309

98 N.W.2d 309

250 Iowa 1164

Deborah BROOKS, by her next friend and father, Gaylord Brooks, and Gaylord Brooks, Appellees, v. Robert H. GILBERT and Lorraine C. Gilbert, Appellants.

No. 49728.

Supreme Court of Iowa.

Sept. 22, 1959.

Steward, Crouch & Kelly, Des Moines, for appellants.

Duffield & Pinegar, Des Moines, for appellees.

PETERSON, Justice.

On June 27, 1957, about 11:00 A.M., defendant Robert H. Gilbert, driving a Chevrolet car, struck plaintiff Deborah Brooks, six years old. The car was registered in his wife's name, and she is a codefendant. Deborah was crossing Hull Avenue in Des Moines. She was seriously injured. A verdict was returned in her favor for $54,750, and in favor of her father, for his expenses of $2,495.21. Motion for new trial was overruled. Defendants appeal.

Appellants assign 17 alleged errors. Since we are reversing and remanding on three errors as to misconduct of attorneys, and admission of certain evidence, we will primarily consider only such errors.

I. Hull Avenue runs east and west. Mr. Gilbert was driving west. The accident occurred immediately west of where First Street intersects Hull Avenue. This is between the Brooks yard on the northwest corner of First and Hull, and the Wheeler residence on the southwest corner of the two streets. At this point there is an offset on First Street as it enters and leaves Hull Avenue, placing the Brooks residence farther east than the Wheeler residence. Hull Avenue at that point is in the 25 mile speed area zone.

During the morning Deborah Brooks (commonly known as Debbie), Dannie Wheeler, eleven at that time, Steve Wheeler and Eddy Marello, both younger, were playing in the Wheeler and Brooks yards with a number of toy trucks and cars. They were back and forth between the two yards several times, but just before the accident Dannie and Eddy were at the Brooks home, on the north side of the street and Debbie was in the Wheeler yard, on the south side. Because of the offset the boys were farther east than Debbie.

Outside of defendant Gilbert the only witnesses to the accident were Dannie Wheeler, Eddy Marello, and Mr. Kirchner, a neighbor, who was not a witness at the trial. Dannie was 13 at time of trial, and testified. Eddy was in the court room but for some reason was not called as a witness.

Dannie first testified Debbie was running across the street from south to north, but later said she was walking. His final testimony, under cross-examination, was: 'I didn't see this car coming or didn't see Debbie crossing the street until I heard the brake and I looked over and saw her in front of the car.'

Defendant testified he saw the two boys on the north side of the street, slowed to between 15 and 20 miles an hour, and did not see the little girl until she was directly in front of his car. The left front fender and headlight struck her. The car did not run over her, but tossed her through the air for some distance. There is conflict in the evidence as to the distance defendant drove after he saw her, and also as to the distance she was tossed. Defendant testified he stopped in less than a car length, but Officer Simmons testified the skid marks indicated a distance of about 40 feet. These are questions of fact, which are exclusively in the realm of the jury. Our concern arises only in getting the proper and material facts before the jury, without prejudicial questions, or erroneous trial court rulings.

It is in connection with Exhibits C, D and E, photographs taken by Officer Simmons, that errors one and two are assigned.

II. We will consider first appellants' assignment of error as to misconduct of plaintiffs' counsel in connection with undue and prejudicial repetition of questions concerning the three exhibits.

Officer Simmons arrived 20 or 25 minutes after the accident. He supervised Debbie's removal to the hospital in the ambulance. He then proceeded to take photographs and to question defendant Gilbert, Dannie Wheeler and Eddy Marello. He took the photographs described as Exhibits 1, B, C, D and E. No errors are assigned as to introduction of Exhibits 1 and B.

He talked with Dannie and Eddy as to where they said the car struck Debbie. On the basis of this information he marked a white circle on the pavement, about 4 or 5 feet in diameter, indicating the spot of contact, as they stated, which circle appears on Exhibits C, D and E. Plaintiffs' counsel then proceeded to establish the circle as the point of impact, and to introduce the Exhibits, by the testimony of Simmons only.

Simmons testified concerning the circle on the exhibits:

'Q. Did you make any examination to determine the point of impact of the automobile and the child? A. I did.

'Q. On the street? A. First I looked the general area over and I found fresh dirt which had apparently come from the automobile. I talked to the witnesses. I had the ones that saw the accident point out to me where they saw her get hit at, and I arrived at the real point of impact from that. * * *

'Q. Where did you establish that point of impact?

'Mr. Steward: * * * Objected to as calling for his opinion and conclusion, and as calling for testimony based on hearsay.

'The Court: Sustained.'

Counsel again asked Simmons:

'Q. I note also in Exhibit E on the pavement what appears to be a white circle. Do you know who put that there? * * * A. I did.'

Mr. Steward, by permission from the court, asked:

'Q. Was that circle intended to indicate something as to the point of impact, what you concluded was the point of impact? A. Yes sir.'

Same objection; same ruling.

Including the two above questions plaintiffs' counsel asked about the circle on Exhibits C, D and E thirteen times in an attempt to get them introduced. Thirteen times proper objections to the questions were made and sustained.

The questions were not all similarly worded, but had the same ultimate purpose.

Officer Simmons did not see the accident. His testimony, based on what Dannie and Eddy told him as to the point of impact, was clearly his opinion and conclusion, and based wholly on hearsay. The matter of the point of contact was important and material. It pertained to how far defendant skidded, and how far Debbie was thrown after she was struck. These were matters the jury would consider in arriving at defendant's speed, and whether or not he could have stopped after he saw her. This fundamental fact should not be permitted to rest on opinions, conclusions and hearsay evidence.

The result of the repetition of the question, although objections were sustained, was to indelibly fix in the minds of the jurors that the circle was the point of impact. The prejudicial damage to defendants was not in any answer given by the witness, because all objections were sustained, but by the emphasis created through repetitious questioning.

We have held in several recent cases that such procedure is misconduct by counsel, and prejudicial to opposing party. Maland v. Tesdall, 232 Iowa 959, 5 N.W.2d 327; Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; State v. Tolson, 248 Iowa 733, 82 N.W.2d 105. Also see: Paul v. Drown, 108 Vt. 458, 189 A. 144, 109 A.L.R. 1085; also Comments, 1089 to 1096; 39 Am.Jur., New Trial, § 65; Louisville & N. R. Co. v. Payne, 133 Ky. 539, 118 S.W. 352, 109 A.L.R. 1089.

Maland v. Tesdall, supra, was an automobile accident case. The objectionable questions pertained to drinking of intoxicating liquor, and the questions assumed some facts not present in the case. We said: 'While it was proper for appellee to show the use of liquor by the driver and the other occupants of the car on the night of the accident, we think the bounds of propriety were exceeded. A prejudicial course of examination was pursued. Incompetent questions which assumed the existence of damaging facts were frequently asked. The questions and not the answers seem to have been considered important. Such questions were repeated despite the sustaining of objections thereto.' [232 Iowa 959, 5 N.W.2d 332.] The case was reversed, primarily on above basis.

In Pierce v. Heusinkveld, also reversed, the above statement was quoted with approval. The case involved a similar question as to use of intoxicating liquor. We quote further: 'There was no testimony introduced that in any way intimated that the witness or any of his associates had been drinking during the evening that the collision occurred. To infer that this was the case could have no other effect than to result in prejudice to the appellants' cause.' [234 Iowa 1348, 14 N.W.2d 278.]

In State v. Tolson, supra, the attorney for the State asked some highly incompetent and hearsay questions, on the basis of which we reversed, and stated: 'It seems likely that the effects of the poison interjected by the question alone would be difficult to remove, and the motion for a mistrial was well-founded.' [248 Iowa 773, 82 N.W.2d 110.]

39 Am.Jur., New Trial, § 65, states as follows: 'So, it will constitute ground for a new trial if counsel, in disregard of the court's ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury, to the prejudice of the unsuccessful party.'

In Paul v. Drown, supra, the court states: 'It is no answer to say that the plaintiffs were not harmed because the evidence was excluded, for the prejudice inhered in the offer itself.' [108 Vt. 458, 189 A. 146.]

The matter is clearly stated in the Comments in 109 A.L.R. 1089, as follows: 'Much of this misconduct has consisted of knowingly asking improper questions. In many cases the attorney complained of has persistently pursued a wholly unjustified and prejudicial course of interrogation, notwithstanding objections made and sustained, clearly calling to his attention, if such a thing could be deemed necessary, that the questions asked were without any plausible legal foundation. Reversals have frequently been granted in cases of that extreme character.'

III. The...