Droullard v. Rudolph

• Decision Date: 15 January 1929
• Docket Number: 39017
• Citation: Droullard v. Rudolph, 207 Iowa 367, 223 N.W. 100 (Iowa 1929)
• Parties: LEO O. DROULLARD, Administrator, Appellee, v. HAROLD RUDOLPH, Appellant, et al., Appellees
• Court: Iowa Supreme Court

223 N.W. 100

207 Iowa 367

LEO O. DROULLARD, Administrator, Appellee, v. HAROLD RUDOLPH, Appellant, et al., Appellees

No. 39017

Supreme Court of Iowa, Des Moines

January 15, 1929

Appeal from Dubuque District Court.--P. J. NELSON, Judge.

An action for damages resulting in the death of appellee's decedent, claimed to have resulted from a collision between an automobile driven by the appellant and an automobile in which the decedent was riding. From a verdict for plaintiff the defendant Rudolph appeals.

Reversed.

Kenline Roedell, Hoffmann & Tierney, for appellant.

Hurd Lenehan, Smith & O'Connor and Frantzen, Bonson & Gilloon, for appellee.

ALBERT, C. J. STEVENS, MORLING, and WAGNER, JJ., concur, DE GRAFF, J., concurs in result.

OPINION

ALBERT, C. J.

This case is a companion case to Judd v. Rudolph, 207 Iowa 113, 222 N.W. 416. This action grew out of the same collision which was the basis of that action, and as the facts are quite fully set out in that opinion, we need but summarize them here.

This collision occurred in the northeast segment of the intersection of Jackson and Thirty-second Streets in the city of Dubuque. The car in which the plaintiff's decedent was riding was traveling in a northerly direction on Jackson Street, and the Rudolph and Casey cars approached from the east on Thirty-second Street. Appellee's decedent, Gladys Droullard, was sitting in the rear seat, and the Judd car, in which she was riding, was first struck by the Rudolph car and then by the Casey car. She was thrown from the car, struck the hotel building on the northwest corner of the intersection, at a point some 16 feet from the ground, fell to the cement sidewalk in front of said building, and was taken in an ambulance to a hospital, where she shortly afterward died.

There are 96 errors assigned in this case, a large part of them having reference to rulings on evidence. We have reviewed each error and the reasons claimed therefor, and find that, so far as these objections to the reception or rejection of evidence are concerned, there was no prejudicial error. Much that is said in the Judd case on the question of receiving or rejecting testimony is controlling in this case.

Objection was made that certain witnesses were allowed to give incompetent conclusions; but, as we read the record, this objection is not tenable, for the conclusions given by these witnesses against which objection is lodged, are such as we have repeatedly held to be admissible.

Complaint is made of the admission of certain testimony as to pain and suffering. It is well settled that, in an action of this kind, this element cannot be considered in determining the damage. Donaldson v. Mississippi & M. R. Co., 18 Iowa 280; Rose v. Des Moines Valley R. Co., 39 Iowa 246; Dwyer v. Chicago, St. P. & O. R. Co., 84 Iowa 479, 51 N.W. 244; Hammer v. Janowitz, 131 Iowa 20, 108 N.W. 109. In the case of Nicoll v. Sweet, 163 Iowa 683, 696, 144 N.W. 615, this court said:

"There was no error in admitting complaints made by the deceased of pain and suffering soon after his injury. It is true, the administrator was not entitled to recover for the pain and suffering sustained by the deceased, and the jury were so instructed; but the rule which admits the complaints of the injured person as bearing upon the nature, extent, and location of his injuries is quite elementary."

While the Nicoll case is not exactly parallel with the situation we have before us, we are disposed to think it is controlling here. On the other hand, if this evidence was not admissible, it was not submitted to the jury as one of the elements of damage, and we think, therefore, there was no error here.

Defendant tendered testimony to the effect that Judd, the driver of the car in which the decedent was riding, made certain statements after the accident, to the effect that he "stepped on the gas, or tried to beat the other car to it." Objection was sustained to this line of testimony, and rightfully so. Such statements would not be binding on this plaintiff, under the circumstances, nor were they res gestae, under the rule laid down in the case of Keyes v. City of Cedar Falls, 107 Iowa 509, 78 N.W. 227.

While in this case, as in the Judd case, the action was originally commenced by plaintiff against Rudolph, Casey, and his mother (the owner of the car), during the trial of the case plaintiff dismissed the case, so far as Casey and his mother were concerned; so that, when the case was finally submitted, the Caseys were not parties.

Complaint is made because concurrent negligence was not pleaded, and was not properly instructed upon. With this we cannot agree. One of our holdings in the Judd case was that, if the facts were as claimed by the plaintiff, the negligence of the Caseys had no material bearing in the case. After reciting the substance of the law in two sections of the Code, the court said, in his instructions: "The violation of either of these...