Elenz v. Conrad

• Decision Date: 20 December 1901
• Citation: Elenz v. Conrad, 115 Iowa 183, 88 N.W. 337 (Iowa 1901)
• Parties: ELENZ v. CONRAD.
• Court: Iowa Supreme Court

115 Iowa 183

88 N.W. 337

ELENZ

v.CONRAD.

Supreme Court of Iowa.

Dec. 20, 1901.

Appeal from district court, Dubuque county; Fred O'Donnell, Judge.

When plaintiff and her husband were a short distance beyond a bridge on the way out of Dyersville, at about 5:30 o'clock in the afternoon of Jan. 6, 1899, they stopped to cover an oil can, not well corked. Hearing a team approach rapidly, he resumed his seat, and had just started on as it passed, the hind wheel of the wagon striking that of plaintiff and her husband, throwing both to the ground, and breaking her nose. She demands damages. The pleadings raised the usual issues in such a case, and also whether defendant was the person who drove the passing team. Trial to jury resulted in a verdict for plaintiff, upon which judgment was entered, and defendant appeals. Reversed.Husted & Michel, for appellant.

Matthews, Lindsay & Frantzen, for appellee.

LADD, J.

The plaintiff, a married woman, followed no separate or independent employment. Her husband then, and not she, was entitled to recover for medical services and the value of the time lost by reason of the injuries received. Tuttle v. Railroad Co., 42 Iowa, 518;Nichols v. Railway Co., 68 Iowa, 736, 28 N. W. 44;Hall v. Town of Manson, 90 Iowa, 585, 58 N. W. 881;Denton v. Ordway, 108 Iowa, 487, 79 N. W. 271. The court told the jury, in the twelfth instruction, to allow the plaintiff damages sustained by her, “as shown by the evidence. Consider the character and nature of the same, the pain suffered, the time she was disabled, how much and to what extent her nose is permanently disfigured, what she had to pay for services of a physician,--and from these say what damages she should receive.” The expense for medical attendance was but $20, and it is possible that, were this the only difficulty in the way of an affirmance, it might be remedied by a remittitur. See Van Gorder v. Sherman, 81 Iowa, 403, 46 N. W. 1087;Frohs v. City of Dubuque, 109 Iowa, 220, 80 N. W. 341. It is to be noted, however, that the case differs from those cited in that no claim was made in the petition for such expenses, and the court's attention was directed to the error involved in its allowance by a motion to strike evidence. But this distinction could only affect the propriety of requiring remittitur in this court and the taxation of costs. But the petition does base the recovery of damages in part on the allegation that she “has been and will be unable to perform her usual household duties,” and, in this instruction, one of the elements to be considered in measuring her damages was “the time she was disabled.” Appellee insists this had reference solely to the extent and seriousness of her injuries. An analysis of the instruction will not bear out this contention. Five elements for consideration are named: (1) the nature of the injuries; (2) the pain endured; (3) the time she...