Englund v. Younker Bros., Inc.

• Decision Date: 03 May 1966
• Docket Number: No. 51990,51990
• Parties: H. Maurine ENGLUND, Appellant, v. YOUNKER BROTHERS, INC., and Mart, Inc., Appellees.
• Court: Iowa Supreme Court

Page 530

142 N.W.2d 530

259 Iowa 48

H. Maurine ENGLUND, Appellant, v. YOUNKER BROTHERS, INC., and Mart, Inc., Appellees.

No. 51990.

Supreme Court of Iowa.

May 3, 1966.

As Amended on Denied of Rehearing June 14, 1966.

Buell M. Lindgren and S. R. Eiller, Des Moines, for appellant.

Eugene Davis, of Duncan, Jones, Riley & Davis, Des Moines, for appellee Younker Brothers, Inc.

Robert Allbee, of Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee Mart, Inc.

BECKER, Justice.

Plaintiff seeks damages by reason of a fall which occurred in the parking lot immediately adjacent to the store known as Younkers-East located in Des Moines. Defendant Younkers Brothers, Inc. rents the premises from defendant Mart, Inc. Plaintiff alleges she stepped in a hole created by broken and crumbling concrete in the lot as she was returning to her car. The first trial resulted in a mistrial; the second in verdict for defendants. Plaintiff appeals.

I. Plaintiff's first assignment of error grows out of the mistrial. Briefly, the mistrial occurred when defense counsel mistook one of the jurors for defendant Younkers' representative who was attending the trial. During recess counsel talked to a juror under the impression that he was talking to his client's representative and made some remarks concerning opposing counsel. The remarks were not complimentary to plaintiff's attorney. The juror identified himself as a juror. Counsel immediately broke off the conversation and reported the incident to the court in chambers.

It would serve no useful purpose to detail the conversation between lawyer and juror. Suffice to say, enough was said to justify a mistrial. However, both plaintiff and defendant Younkers agreed to excuse the juror and use an alternate. To this defendant Mart, Inc. objected, insisting on a mistrial.

The court observed: 'Well, the court is convinced that it was an innocent mistake. There is no doubt about that in the court's mind, * * *.'; declared a mistrial, taxing the costs to defendant. The case was reset at a later date.

Plaintiff moved to tax attorney fees as costs for the two days trial work aborted by the mistrial which plaintiff alleged was due to defense counsel's misconduct. Defense counsel denied misconduct, stating that the incident was due to his innocent mistake. The motion to tax attorney fees was denied.

This type of incident should not occur during a trial conducted by experienced and competent counsel. Nevertheless, due to the tension and occasional frustration incident to such trials, the efforts of trial lawyers and human nature, such incidents do occur. We understand from our examination of the record why plaintiff's counsel feels fully justified in denominating defense counsel's remark as misconduct, but we are satisfied that such conduct was inadvertent, not wilful or deliberate.

We agree with plaintiff that such conduct is not to be encouraged, but on the contrary, discouraged. We observe that the offending attorney immediately reported to the court and truthfully told the substance of the conversation.

While plaintiff cites several cases from other jurisdictions that indicate a right to recompense where the wrongful act of a party has caused the opponent unnecessary attorney fees, none are in point here. These cases deal primarily with the imposition of attorney fees as an incident to a party caused continuance, a mistrial with certain broad statutory authority in the court, and the like. The two Iowa cases cited are not analogous.

To the contrary defendants cite Thorn v. Kelley, Iowa 134 N.W.2d 545, 548.

'The right to recover attorney fees as part of the costs does not exist at common law. They cannot be so allowed in the absence of a statute or agreement expressly authorizing it. In order that they may be so taxed the case must come clearly within the terms of the statute or agreement. Indeed the court does not have inherent power to tax costs even to the losing party. Harris v. Short, 253 Iowa 1206, 1208--1210, 115 N.W.2d 865, 866--867, and citations; Dallas v. Dallas, supra, 222 Iowa 42, 44, 268 N.W. 516; 20 C.J.S. Costs § 218a.'

Confronted with this Iowa rule, the trial court correctly refused to tax attorney fees as part of the costs.

II. As to the second trial, plaintiff alleged defendant Younker Brothers, Inc. was the tenant of defendant Mart, Inc. by virtue of a written lease and defendants controlled the cement parking area adjacent to the store. On June 27, 1963, at about 8:20 P.M., plaintiff with a friend, Louise Wheaton, went to Younkers-East to shop, parked her car in the parking lot and walked to the store. Shortly thereafter, returning to her car, she stepped on broken and crumbling concrete, causing her to fall and break her hip. The court submitted plaintiff's allegation that defendants supplied a defective parking area which it knew or should have known was defective, and failure to warn persons using the lot as to its condition.

Louise Wheaton testified she was with Miss Englund when they walked between two cars in the parking lot. It was dark at the time Miss Englund fell. There was a hole where she fell that was filled with crumbled rock and cement.

The errors relied upon for reversal involve evidentiary rulings; a). admitting into evidence a photograph known as Exhibit 6, b). admitting into evidence testimony of one Lindy Brown as to the illumination of the parking lot at the time the lights were installed, and c). failure to admit into evidence certain parts of a lease between Younker Brothers, Inc. and Mart, Inc.

The lighting conditions prevailing at the time and place of plaintiff's fall became one of the main issues in the case. After the mistrial was declared and before the second trial was reached, defendant procured Exhibit 6, a photograph taken by a commercial photographer at approximately 9:15 P.M., April 27, 1965, at a time when it was dark and the parking lights were on. The photographer testified that the photograph correctly shows and truly pictures the conditions prevailing in the parking lot at the time the picture was taken. He further testified that the picture indicates conditions as he saw them when he took the picture. He used no artificial light.

Plaintiff's trial objections to Exhibit 6 were that it was incompetent and irrelevant to any issue in the case, being entirely remote from the time alleged that this accident occurred; no evidence that the light was the same then as it was at the time of the accident; the photographer wasn't present when the accident occurred and light varies in every occasion; that what the photographer observed was not the same as was observed the night the accident occurred; and finally that the picture had nothing to do with depicting any situation that was prevalent or present at the time of the alleged accident on which this suit is based.

Plaintiff now urges five objections to the exhibit; remoteness of time of taking the picture (almost 2 years delay); inky blackness at time of taking this photograph (vis-a-vis dusk at 8:00 P.M., June 21st which is urged as a matter of common knowledge); use of 4 second shutter speed; use of wide angle lens; and placement of the cars contrary to the evidence.

None of these objections, except that of remoteness as to time, were brought to the attention of the trial court either by objection or cross examination. The shutter speed appears of record as part of the legend on the reverse side of the picture. The type of lens used is not shown in the record.

'The time at which a photograph offered in evidence was taken is important only with reference to the question of probability of change in condition of the person or object portrayed. * * * The mere fact, however, that photographs were taken at a time different from that in question does not render them inadmissible if witnesses are able to verify them as substantial representations of the conditions as they existed at the time in question. * * * Photographs of the scene of an accident taken at or near the time are not always obtainable, and the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity and that changes, whatever they may be, should be carefully pointed out and brought to the jury's attention.' 20 Am.Jur. Evidence, § 1731, page 611.

Plaintiff's witness, Miss Wheaton, had testified that 'It wasn't light between the two cars. It was drak'; and 'It was dark. It was real dark between those two cars just like when you walk into a dark room.' Defendants offered parts of plaintiff's deposition where she said:

'Q. When you arrived at the Eastgate area and left you car in the parking lot what was the condition as far as lightness or darkness was concerned? A. I presume lights were on.

'Q. Well, leaving the lights out of it for a monent, was it night? A. Quite dark.

'Q. Quite dark? A. Quite dark.

'Q. By 'quite dark' what do you mean? A. Approximately dark. It was approximately night dark; that isn't a good way to say it, but--'

The picture concerns itself with the concrete parking lot, two cars that appear in the picture and the lights used to illuminate the area. There is no question of trees or other foliage that would be subject to change. Remonteness of the time of taking the picture would, therefore, be immaterial with the exception of the condition of the lights. Defendant Younkers had produced testimony by its manager that the lights were the same as those present in June and July of 1963 and they they had not been changed in any way in candle power or intensity. The trial court alluded to the testimony of this witness in overruling plaintiff's objection to the exhibit.

Plaintiff's objections here really go to the use of time exposure on a photograph taken at night and the affect of such techniques on admissibility. This matter was not called to the attention of the court by objection or by eliciting additional information on...