Dutcher v. Lewis

• Decision Date: 18 September 1974
• Docket Number: No. 56300,56300
• Citation: 221 N.W.2d 755
• Parties: Freda Joan DUTCHER, Administrator of the Estate of Mitchell Dutcher, Appellee and Cross-Appellant, v. Thomas W. LEWIS, Appellant and Cross-Appellee.
• Court: Iowa Supreme Court

Page 755

221 N.W.2d 755

Freda Joan DUTCHER, Administrator of the Estate of Mitchell Dutcher, Appellee and Cross-Appellant, v.Thomas W. LEWIS, Appellant and Cross-Appellee.

No. 56300.

Supreme Court of Iowa.

Sept. 18, 1974.

Connolly, Connolly & Bray, Council Bluffs, for appellant and cross-appellee.

Davidson & Hemphill, Clarinda, for appellee and cross-appellant.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

MASON, Justice.

Freda Dutcher, as administrator of the estate of her husband, Mitchell, brought a law action to recover for his death which resulted from a one-car accident which occurred while he was riding as a guest in a vehicle owned and being operated by defendant, Thomas Lewis.

At the close of all evidence plaintiff moved for a directed verdict asserting her evidence had established a prima facie case of liability and defendant's defenses were without merit and failed to state a proper defense on the pleadings as well as the evidence.Defendant made no motions at this stage of the trial.

A jury answered the special interrogatories which found defendant was under the influence of alcoholic beverage; was operating his vehicle in a reckless manner; and plaintiff's decedent assumed the risk.

The jury returned a plaintiff's verdict for $20,000 but by separate statement attached to the verdict form stipulated the amount was to be placed in trust to provide for the education of decedent's infant son.

Defendant appeals and plaintiff cross-appeals from the trial court's ruling sustaining defendant's motion for a new trial.

Plaintiff in her petition alleged decedent was a passenger in a 1969 Corvette Stingray owned and operated by defendant in the early morning hours of July 12, 1969.Plaintiff also alleged defendant operated the car in a reckless manner with willful and utter disregard for the safety of others in seven distinct particulars.In paragraph 8she alleged defendant at the time and place of the accident was under the influence of alcoholic beverage or other drugs or a combination of both.

Defendant in answer alleged decedent was riding as a guest and was himself negligent and reckless in various particulars.He also alleged assumption of risk as an affirmative defense.

The record discloses the facts surrounding the accident.Lewis met Dutcher about 9:30 p.m. at a pool hall in Shenandoah and the two played several games of pool.About 11 o'clock defendant purchased a six-pack of beer; they then went to defendant's apartment where each drank two cans.Because it was a very hot evening and defendant's apartment was not air-conditioned, they left and decided to drive to Clarinda; decedent asked to go along and defendant let him.They stayed in Clarinda for only a short time, returned to Shenandoah and eventually stopped at Jerry's Tavern about 1:30 a.m.Having left the remainder of the first six-pack at the apartment, defendant purchased a second six-pack at this time.Plaintiff's decedent gave defendant approximately 75 cents, the cost of beer he had earlier consumed.Again they returned to the apartment and this time consumed one can apiece.

The apartment was still uncomfortable, so taking a single beer apiece they left and drove to Northboro to see a friend, Harry Clark.They visited with Clark briefly and then left.The accident occurred a short distance outside Northboro near a series of fairly sharp curves.At least by the time they left Northboro decedent had fallen asleep in the car.

Officer Davidson arrived at the scene shortly after the accident and examined the site.He testified the car left the asphalt pavement and traveled 297 feet in the ditch before hitting a farm field driveway at which time the car was propelled into the air for approximately 60 feet.When the car came down it continued on for another 78 feet before finally coming to rest.Davidson stated the fiberglass body of the Stingray 'just exploded' when it hit the roadway and came back down.

Witnesses Clark, Davidson and Redinger testified defendant was under the influence of alcoholic beverate at the time of the accident.Defendant later pled guilty to the charge of reckless driving.

After judgment was entered defendant moved for judgment notwithstanding the general verdict or, in the alternative, for a new trial.The motion alleged the answer to the special interrogatories voided the general verdict or that due to the irreconcilable conflict the special findings control.It also stated the answers to the special interrogatories overcame the general verdict and therefore defendant was entitled to judgment.

Plaintiff then moved the court to sustain the general verdict and overrule defendant's motion.In the alternative plaintiff sought a new trial.As stated, the trial court sustained defendant's request for new trial after finding the jury's answers to the interrogatories on assumption of risk inconsistent with the verdict of the jury.Defendant's motion was otherwise denied.The record does not contain any ruling by the trial court on plaintiff's motion.

The issue presented for review on defendant's appeal is whether the trial court erred in denying his motion for judgment notwithstanding the general verdict.

Plaintiff's cross-appeal presents the issue whether the trial court erred in submitting the interrogatory on assumption of risk to the jury and whether the trial court erred in not allowing the general verdict to stand.

I.Plaintiff contends on appeal the trial court should not have submitted the interrogatory on assumption of risk since the evidence was insufficient to warrant submission of that issue.She particularly maintains there was not substantial evidence which would justify a jury in finding decedent assumed the risk of both intoxication and recklessness; that defendant failed to introduce any evidence tending to establish the fact decedent was aware of defendant's reckless driving for that decedent had an alternative of subjecting or not subjecting himself to the risk, both of which she contends are essential elements of this affirmative defense and must be proven by substantial evidence.

The record discloses that in the trial courtplaintiff's objection to the proposed instruction was directed to instruction 10 on assumption of risk and to instruction 18 dealing with interrogatories.We quote from the record:

'* * * Plaintiff * * * excepted and objected to the instructions including the interrogatories, and moved to strike the interrogatories for the reason there is no allegation in any of the pleadings that the Plaintiff's decedent was under the influence of intoxicating beverages and this is not under consideration by this court.'

The objections were overruled.

Plaintiff urged as a basis for new trial, 'That there is no evidence of assumption of risk and since there is no such evidence, the interrogatory on that subject is not supported by the evidence.'

The grounds of a motion for new trial must stand or fall on exceptions taken at trial and a party cannot in a post-verdict motion amplify or add new grounds as an attack on instructions.State v. Buchanan, 207 N.W.2d 784, 787(Iowa1973).The reason for the rule is stated in this fashion in the cited case: '* * * It avails a trial court nothing for a defendant to save part of his exceptions for a motion for new trial, when the court can no longer change its instructions before reading them to the jury.'

Plaintiff's objection set out, supra, specifically referred to defendant's failure to plead plaintiff's decedent was under the influence of intoxicating beverages.It clearly did not point to a lack of evidence presented by defendant on the pleaded defense of assumption of risk which is the argument urged in motion for new trial and now on appeal.Plaintiff's objection here is not that the interrogatory was improper in form, Main v. Sheston-Luxor Cab Co., 249 Iowa 973, 977, 89 N.W.2d 865, 867, or not germane to the issues presented to the jury, Dezsi v. Mutual Benefit Health, etc., Assn., 255 Iowa 1027, 1037, 125 N.W.2d 219, 224--225, but because it had no support in the evidence.See alsoBerghammer v. Smith, 185 N.W.2d 226, 235--236(Iowa1971), and authorities cited.In effect plaintiff argues she was entitled to a ruling as a matter of law on the issue of assumption of risk.

Since this trial took place in January 1972, rule 196,Rules of Civil Procedure, prior to its amendment by the 1973 Regular Session of the Sixty-fifth General Assembly, chapter 316, is applicable.It provides in pertinent part:

'* * * Within such time, all objections to giving or failing to give any instruction must be made in writing or dictated into the record, * * *, specifying the matter objected to and on what grounds.No other grounds or objections shall be asserted thereafter, or considered on appeal.'

In determining the sufficiency of an objection to an instruction in order to preserve error the test is whether the exception taken alerted the trial court to the error which is urged on appeal.Pose v. Roosevelt Hotel Company, 208 N.W.2d 19, 25(Iowa1973);Froman v. Perrin, 213 N.W.2d 684, 689--690(Iowa1973);andState v. Baskin, 220 N.W.2d 882, division II, (Iowa 1974).

As pointed out, plaintiff's objection to the proposed instructions urged failure to raise an issue by the pleadings whereas on cross-appeal she asserts the evidence was insufficient to justify submission of the issue raised by defendant's specially pleaded affirmative defense.

It cannot be logically argued plaintiff's objection to the proposed instructions alerted the trial court to the question she now attempts to present for review in this court.The alleged error asserted in the assignment not having been properly preserved in the trial court presents nothing for review in this court.

Plaintiff also argues in her appeal the trial court erred in not allowing the general verdict to stand.This argument apparently is used as a basis for...