Dutcher v. Lewis

• Decision Date: 21 December 1977
• Docket Number: No. 59391,59391
• Citation: 260 N.W.2d 404
• Parties: Freda Joan DUTCHER, Administrator of the Estate of Mitchell Dutcher, Appellant, v. Thomas W. LEWIS, Appellee.
• Court: Iowa Supreme Court

Page 404

260 N.W.2d 404

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

No. 59391.

Supreme Court of Iowa.

Dec. 21, 1977.

Davidson & Hemphill, Clarinda, for appellant.

Dippel & McCann, Council Bluffs, and Fraser, Stryker, Veach, Vaughn & Meusey, P. C., Omaha, Neb., for appellee.

Submitted to MOORE, C. J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

LeGRAND, Justice.

This appeal from defendant's verdict following a jury trial on plaintiff's claim for the wrongful death of her husband raises two issues. One pertains to an alleged wrongful voir dire examination of the jury and the other to a requested instruction which was rejected by the trial court. We affirm on both issues.

Mitchell Dutcher was a passenger in an automobile owned and driven by defendant, Thomas W. Lewis, at the time of an accident which caused his death. Suit for his wrongful death was brought by Freda Joan Dutcher, his surviving spouse and administrator of his estate. Prior to trial, Freda Joan Dutcher remarried and is now Freda Joan Perry.

I. The first issue raised concerns reference by defendant's counsel to Freda's new marital status during voir dire examination of prospective jurors. The specific error alleged is that counsel violated the trial court's order on a motion in limine filed by plaintiff prior to trial. We limit our consideration accordingly. We do not believe that complaint is justified. The order prohibited the defendant from mentioning the marriage in the examination of any witness, but specifically excluded from its terms the question of voir dire examination.

After a preliminary ruling on the motion in limine, the trial court reconsidered the matter and dictated the following order into the record:

"During the noon recess, the court has had an opportunity to reexamine the motion in limine and finds that (paragraph one of the motion asks only that counsel be admonished) not to question any witnesses as to the present name of Freda Joan Dutcher or as to the present spouse of Freda Joan Dutcher and that she should also be referred to as Freda Joan Dutcher, Administrator of the Estate of Mitchell Dutcher, deceased, and therefore after having reexamined the said motion and having reconsidered the motion in limine * * *, the court finds the same should be sustained as to any questions to be asked witnesses concerning * * * (Freda Joan Dutcher's present marital status).

"The court further orders that paragraph four of said motion (relating to the examination of witnesses concerning Freda Dutcher's remarriage) should be sustained in its entirety, as the motion in limine nowhere refers to the voir dire examination of the jurors by the defendant's attorney. The court is not ruling on that question." (Emphasis added.)

This is the order under which voir dire was conducted. It is clear the jury examination conducted by defendant's counsel did not violate its terms.

We find no ground for reversal on the basis urged. Our decision is limited to the issue as raised on this appeal. We express no opinion as to the extent to which, if at all, Freda's remarriage could have been brought to the jury's attention on voir dire if proper objection had been made. The authorities are divided on this question. See Annot. 87 A.L.R.2d 252, 260 (1963). Cases which permit disclosure of the surviving spouse's remarriage include Dubil v. Labate, 52 N.J. 255, 245 A.2d 177, 180 (1968) and Watson v. Fischbach, 54 Ill.2d 498, 301 N.E.2d 303, 306 (1973). For opinions...