Desmond v. Smith

• Decision Date: 11 December 1934
• Docket Number: 42614
• Citation: 257 N.W. 543,219 Iowa 83
• Parties: T. F. DESMOND, Appellee, v. WILLIAM C. SMITH et al., Appellants
• Court: Iowa Supreme Court

257 N.W. 543

219 Iowa 83

T. F. DESMOND, Appellee, v. WILLIAM C. SMITH et al., Appellants

No. 42614

Supreme Court of Iowa, Des Moines

December 11, 1934

Appeal from Webster District Court.--SHERWOOD A. CLOCK, Judge.

This is an action by the plaintiff against the defendants to recover damages arising out of personal injuries received in an automobile accident. William C. Smith, the defendant, at the time in question was an employee of the defendant Stacy Fruit Company. There was a trial to a jury, which returned a verdict in favor of the plaintiff, and the defendants appeal.

Reversed.

Stowe & Kirchner, and Putnam, Putnam, Langdon & Fillmore, for appellant William C. Smith.

Stewart & Hextell, for appellant Stacy Fruit Co.

F. J Lund, and D. M. Kelleher, for appellee.

KINDIG J. STEVENS, EVANS, ALBERT, ANDERSON, KINTZINGER, and DONEGAN JJ., concur.

OPINION

KINDIG, J.

On February 8, 1933, a collision occurred between an automobile driven by T. F. Desmond, the plaintiff-appellee, and an automobile operated by the defendant-appellant William C. Smith. The collision took place in Webster City at the intersection of Bank street and Wilson avenue. Wilson avenue extends in a northerly and southerly direction, while Bank street intersects it at right angles. As the appellee was driving his car in a northerly direction toward the intersection, the appellant Smith's car approached the same intersection from the west. Immediately thereafter the collision occurred. At the time in question it is claimed by the appellee that the appellant Smith was an agent and employee of the appellant Stacy Fruit Company. Consequently the appellee commenced the present action against the appellants to recover damages for injuries received in the collision.

It is alleged by the appellee that the collision occurred because of the negligence of the appellant Smith. There was a jury trial, and that body returned a verdict in favor of the appellee. In due time thereafter the appellants filed a motion for a new trial, in which they set forth objections to the district court's instructions, and made other complaints. After considering the motion for a new trial, the district court overruled the same and entered judgment on the verdict. From that judgment and ruling the appellants appeal.

Because we are granting a new trial, we refrain on this appeal from discussing the sufficiency or insufficiency of the evidence relating to the appellants' negligence or to the contributory negligence of the appellee. Nor do we discuss or consider any of the complaints made by the appellants on this appeal, except one. That relates to the court's instruction on the subject of damages. The appellee, in his amended petition, limited the amount of damages claimed on certain items, but, when the district court submitted the issues to the jury, it overlooked the limitations thus placed on the items of damages, and allowed the jury to assess damages without limitations.

Concerning a somewhat similar instruction, we said, in Baker v. Oughton, 130 Iowa 35, reading on page 40, 106 N.W. 272, 274:

"In his instructions to the jury the trial judge did not specifically limit the amount of recovery for each article or service furnished or rendered to defendant's deceased wife to the amount claimed in the itemized account set out in the petition. In this we think there was error. What is said in the concluding paragraph of the opinion in Miller v. Armstrong, 123 Iowa 86, 98 N.W. 561, seems directly applicable in the present case. As to some of the items the evidence tends to show a greater amount to be due than claimed in the petition, and although the verdict of the jury was for an aggregate amount less than the total of plaintiff's claim, it does not appear that the jury may not have allowed for some items more than the amount claimed therefor in the itemized statement. For this error in the instructions the judgment must be reversed."

Likewise we said in Sergeant v. Challis, 213 Iowa 57, reading on page 66, 238 N.W. 442, 446:

"This instruction cannot be upheld. The plaintiff in his petition alleged a specific amount of damage for loss of time, a specific amount for nursing and caring for him, and a specific amount for permanent impairment or injury, and asked judgment for all of the same in the sum of $ 6,656. The court, in the aforesaid instruction, does not tell the jury what elements may be considered by them in fixing the amount of plaintiff's recovery, nor fix the limit of recovery for the different elements mentioned in the petition to that alleged in the petition, nor as shown by the evidence relative thereto. * * * The instruction gives no rule to the jury upon this all important question, but left them to wander into the domain of speculation and conjecture. Appellant's complaint as to this instruction must be upheld." (Italics supplied.)

Again we said in Wosoba v. Kenyon, 215 Iowa 226, reading on page 229, 243 N.W. 569, 571:

"Manifestly the district court should have told the jury that in allowing appellee damages for the doctor bill, no more could be allowed than the amount claimed therefor in the petition. Likewise, the district court should have repeated this thought concerning each item of damages asked; that is to say, appellee could not recover for any one item of damages listed a greater sum than the amount specifically asked therefor in the petition. So, too, the jury could not allow a greater sum than the aggregate amount asked in appellee's petition for the total damages. Of course, in no event could the jury allow any sum, even within the limitations above named, not supported by the evidence."

To the same effect see Charles City Plow & Manufacturing Co. v. Jones & Co., 71 Iowa 234, 32 N.W. 280; Miller v. Armstrong, 123 Iowa 86, 98 N.W. 561; In re Estate of Oldfield, 158 Iowa 98, 138 N.W. 846; Gardner v. Boland, 209 Iowa 362, 227 N.W. 902; Balik v. Flacker, 212 Iowa 1381, 238 N.W. 467; Waldman v. Sanders Motor Co., 214 Iowa 1139, 243 N.W. 555.

But it is argued by the appellee that the evidence on any item named would not support a judgment for more than the amount claimed in the amended petition. Therefore the appellee concludes that the appellants were not prejudiced because the district court told the jury to allow only such damages as were supported by the evidence. The principle of law here contended for by the appellee was sustained in Wosoba v. Kenyon, supra, and the cases therein cited. It cannot be said, however, that the error of the district court in the case at bar can be cured in this way. There is nothing to indicate that the evidence sustaining the items named would not warrant a larger verdict than that fixed by the limitation in the appellee's amended petition. In his original petition, the appellee, after describing the injuries received in the collision, asked for damages in the lump sum of $ 8,000. This petition the appellants attacked by a motion for a more specific statement. When the motion was presented to the district court, it sustained the same in the part requiring that there be a more specific statement concerning the amount claimed by the appellee for loss of time and earnings and the amount expended by the appellee for doctors, nurses, and hospital services.

While attempting to comply with the court's ruling in that regard, the appellee, by amendment to his petition, pleaded as follows:

"Plaintiff (appellee) suffered a complete loss of time from the date of his injury on February 8, 1933, until he was removed from the hospital on March 11, 1933, and substantially complete loss of time for one month thereafter, during which period he could only move on crutches and thereafter partial loss of time because of his disability to the present time and which he alleges will continue in the future, which he alleges would be forty per cent loss of time following April 11, 1933. [Limitation No. 1] That...