Daniels v. Bloomquist, 51939

Citation258 Iowa 301,138 N.W.2d 868
Decision Date14 December 1965
Docket NumberNo. 51939,51939
PartiesWanda Baxley DANIELS, Appellee, v. Lloyd Franklin BLOOMQUIST, Appellant.
CourtUnited States State Supreme Court of Iowa

Doran, Doran, Doran & Courter, Boone, for appellant.

Mahoney, Jordan, Statton & Smith, Boone, and Schatz & Busch, Chicago, Ill., for appellee.

MASON, Justice.

Plaintiff seeks recovery for property damage and personal injuries alleged to have been sustained as a result of an automobile accident occurring at approximately 12:45 p. m., February 22, 1954, on U. S. Highway 30, one mile east of Ogden, Boone County. Plaintiff's vehicle in which she was riding as a passenger was being driven with her consent by Sheldon David Doman in an easterly direction. Defendant was driving his pickup truck in the same direction preceding plaintiff's vehicle. As plaintiff's driver attempted to pass defendant's pickup truck on the left and when the vehicles were about even, the collision took place, forcing plaintiff's vehicle into a field on the north side whereby plaintiff asserts she suffered the claimed injuries.

Plaintiff alleged five grounds of negligence against defendant: (1) Lack of control (2) Failure to maintain proper lookout, (3) Failing to give way to the right in favor of plaintiff's vehicle, contrary to section 321.299, Code, 1954, (4) Turning out to the left without giving an appropriate signal to plaintiff's driver of defendant's intention to turn, contrary to section 321.314, and (5) Turning the pickup truck from a direct course upon the highway without first ascertaining such movement could be made with safety, contrary to section 321.314, Code, 1954.

Defendant's amended answer denies generally plaintiff's allegations and states affirmatively that plaintiff's claimed injuries were sustained prior to the collision; plaintiff and her driver were engaged in a joint enterprise; an employer-employee relation existed between the two; a principal-agent relation existed between the two; said vehicle was operated under plaintiff's direction; and plaintiff and her driver were negligent in nine respects. Plaintiff's reply to defendant's answer and amendments denies generally defendant's allegations.

The trial court submitted three specifications of negligence against defendant: Turning the pickup from a straight course on the highway before first ascertaining such movement could be made with safety; failure to keep a proper lookout; and failing to give way to the right in favor of plaintiff's automobile which was passing defendant's pickup truck. The court also submitted to the jury defendant's claim that plaintiff and operator of her vehicle were engaged in a joint venture. Defendant's specifications of negligence, as submitted, were thus summarized: That plaintiff and the operator of her automobile were negligent in failing to keep a proper lookout and to have her car under control. The court also submitted defendant's claim that plaintiff's driver was operating her car under her personal direction and control.

Defendant's exceptions to the instructions were overruled. No requested instructions were submitted to the court.

The item of property damage was withdrawn from the jury which returned a verdict for plaintiff of $7500.

Defendant's motion for new trial and for judgment notwithstanding the verdict was overruled. Defendant appeals and plaintiff cross-appeals from judgment on the verdict entered January 9, 1965.

Defendant assigns nine errors. The fourth assigned error complains of nine rulings on evidence.

I. Defendant's first assignment is there was misconduct of the jurors and the court. These facts established by affidavit of three jurors bear on this assignment. The matter was submitted to the jury about Friday noon. Shortly after 1:00 a. m., Saturday, the bailiff called the foreman, Howard Riggs, from the jury room and told him the judge wanted to talk to him. The foreman left the jury room and was gone five to seven minutes; upon his return he told the other jurors they would have to reach a verdict. In about 15 minutes the jury was called into the courtroom where the court gave an additional instruction referred to as number 11. Neither of the parties nor the attorneys were present when the jury was returned to the courtroom. The verdict was returned about 3:45 a. m. on Saturday.

Defendant's motion for new trial and for judgment notwithstanding the verdict and exceptions to instructions were presented in 20 separately numbered paragraphs and 15 subparagraphs. Plaintiff filed a resistance to defendant's motion in which she simply denied that the defendant was deprived of a fair and impartial trial for the reason set out in paragraph 20 of defendant's motion.

In ruling on defendant's motion, particularly paragraph 20 which refers to the foreman being called from the jury room, the court disposed of the matter by saying there was insufficient showing and the court was not convinced a new trial should be granted. The motion was overruled as to each paragraph.

Consideration of this assignment will be limited solely to trial court's action in sending the bailiff to the jury room, removing the foreman five to seven minutes and the foreman's assertion upon return to the jury room that they would have to reach a verdict. Other matters urged by both parties are not necessary to our determination.

It has been said the deliberation of the jury is a final and crucial stage of any trial. In order that the institution of jury trials be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted, not only from all improper influences, but from the appearence thereof. It is often said that the jury trial is one of the bulwarks of our liberty, but it will remain so only as long as public confidence in the institution prevails. Lavalley v. State, 188 Wis. 68, 80, 205 N.W. 412.

Whether or not injury or injustice has resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the court to prevent such occurrences, that public confidence in the jury system may be preserved. Rasmussen v. Miller, 268 Wis. 436, 68 N.W.2d 16, 18.

A judge of the court occupies a different attitude towards the jury from that of any other person. In the heat and passion often engendered on the trial, in the conflicting arguments and statements of law by opposing counsel, the jury naturally look to the court to bring certainty out of the confusion. It is for these reasons that a communication by the judge to the jury stands on a different basis from that of any other person, and for a like reason the law should throw a higher degree of circumspection around such communications. Annotation 41 A.L.R.2d 288, 305.

The foregoing requires a reversal of the case.

II. In his second assignment defendant argues that the court erred in admitting mortality tables in evidence over his objection and in giving instruction 11 relating thereto. In this assignment defendant further contends the court erred in giving instruction 10 as to permanency of injury, future pain and suffering and disability allegedly sustained by plaintiff. Defendant took exceptions to instructions 10 and 11.

Our decision under division I to reverse and remand this cause for a new trial requires that this matter should receive our attention.

Plaintiff called two doctors. Dr. Linder of Ogden testified he saw a Wanda Baxley who had been in a minor automobile accident suffering from discomfort in the region of the lower anatomy, found a dislocated coccyx which he relocated, x-rayed her pelvis because she complained of siscomfort in this region and found the pelvis to be normal after relocation of the coccyx. He recalled nothing further about her condition. A hypothetical question propounded to the doctor called for an opinion as to whether or not pain and suffering and swelling in the area of the coccyx that existed in December of 1954 could have been caused by the accident for which the doctor examined plaintiff in February of 1954. Testifying he had an opinion, the doctor stated, 'Well, my opinion would be very unlikely she would have anything that long afterwards.' Asked, 'Doctor, when you say it would be unlikely, would you say it would be impossible?', the doctor answered, 'It isn't impossible. It is possible that she could have some discomfort that long afterward, but in my opinion it would be very unlikely that medically there would be reason enough here, with a dislocated coccyx to cause this much pain this long afterwards; it is unlikely. There could possibly be some pain after the relocation of the coccyx, possibly for a month, and after that normally it would subside.'

Dr. Levine of Chicago testified by deposition that he first saw plaintiff who he knew as Wanda Baxley on February 23, 1954, obtained the history, did an examination, found no abnormality in her abdomen and advised her as to therapy. His objective findings were completely negative except for a murmur which plaintiff stated she had had as the result of rheumatic fever at the age of 18 years and a tendency of the coccyx to displace of move. Subjectively she complained of suffering all over, nauseated and vomiting, complained of pain and tenderness when she was examined in the lower back region, particularly in the coccyx area. He saw plaintiff again December 2, x-rays were taken and they were nonrevealing except for the possibility of an old fracture of the...

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