Evans v. Holsinger

• Decision Date: 05 June 1951
• Docket Number: No. 47853,47853
• Citation: 28 A.L.R.2d 1434,242 Iowa 990,48 N.W.2d 250
• Parties: , 28 A.L.R.2d 1434 EVANS v. HOLSINGER.
• Court: Iowa Supreme Court

Page 250

48 N.W.2d 250

242 Iowa 990, 28 A.L.R.2d 1434

EVANS v. HOLSINGER.

No. 47853.

Supreme Court of Iowa.

June 5, 1951.

Rehearing Denied Sept. 21, 1951.

J. R. McManus, and A. R. Shepherd, of Des Moines, and Neil McManus, of Keokuk, for appellant.

Hansen & Wheatcraft, of Des Moines, for appellee.

THOMPSON, Justice.

Involved in this action is the Iowa 'guest statute,' but no claim is made that plaintiff did not plead and prove a case requiring submission to the jury. No motion for directed verdict was made either at the close of plaintiff's evidence or at the end of all the evidence in the case. There are, however, other serious questions involved which require careful consideration.

Plaintiff's action was brought in a representative capacity. Her husband, Charles Evans, was killed in Polk county, Iowa, on the early morning of January 16, 1949, while riding as a passenger and guest in defendant's automobile; and she was duly appointed as administratrix of his estate. Decedent and defendant, accompanied by two young women, had, earlier in the evening, driven from Des Moines to Ames in defendant's car with defendant at the wheel. There is evidence that while there decedent and defendant did some drinking, both of whiskey and beer; and from some of the testimony it is possible to infer that defendant may have been somewhat affected by his potations. The party started from Ames for Des Moines about 2:00 A.M., and the fatal accident occurred shortly after they had crossed the Polk county line, perhaps fifteen or sixteen miles south of Ames. No other car was involved; defendant apparently lost control of his automobile, and after veering from side to side of the paved road several times it plunged across the shoulder on the left side of the highway and struck a telephone pole. Charles Evans was thrown from the car and almost instantly killed. There is testimony from which the jury would have been warranted in finding that defendant drove at a speed of 80 to 85 miles per hour much of the way south from Ames, and was so driving at the time of the accident. Further details of the evidence will be referred to in the various divisions of the opinion which follow.

I. Many of the grievances of which plaintiff complains herein were invited by her. Of course, she sued in a representative capacity, and under many circumstances her individual acts would not be binding upon her as administratrix. Her counsel cite many cases to this effect; but they are of little aid to her cause. Her pleadings, and her testimony as a witness were written and spoken in behalf of the estate. It is elementary that she is bound by her pleadings, and that the defendant was entitled to cross-examine, within reasonable limits, upon any matter which she had, by her direct testimony, introduced into the case. Likewise, he had the right to rebut, by proper evidence, any facts bearing upon the issues in the case which she had attempted to establish by her testimony or that of the witnesses called by her. Citation of authority here is unnecessary. Suffice it to say that she opened up some avenues of controversy down which the able counsel for defendant was glad to tread; and while there is much in the case which clearly has no proper place there, it is not so easy to say that defendant is solely at fault therein. There are, however, certain errors appearing which we think require reversal, and which will be pointed out.

From the record, much of the trial was concerned not so much with what happened to cause the fatal accident as with the chastity and fidelity of the plaintiff. Here Nicoll v. Sweet, 163 Iowa 683, 144 N.W. 615, L.R.A. 1918C, 1099, becomes of much importance. In this case it was held that the number and ages of the children of a decedent whose estate is suing for his wrongful death, are properly admissible. It is also established in Iowa that under such circumstances it may be shown that the decedent was married. Wheelan v. Chicago, Milwaukee & St. P. Ry. Co., 85 Iowa 167, 52 N.W. 119. The reason given is that a married man is presumed to have more incentive to habits of thrift and industry and will therefore be likely to accumulate a larger estate; and in Nicoll v. Sweet, supra, Justice Weaver, speaking for a majority of the court, held that the same principle applied in permitting a showing as to the number and ages of the children of a decedent father.

Upon this foundation, plaintiff testified without objection that she was married to Charles Evans on September 2, 1940; that he was born November 22, 1920; that they had two children, a daughter 8 years old, and a son five. She testified that he had worked at various jobs, and as to the amount of his earnings; that he was in the service of the United States from August, 1943, until August 1947, during which time he sent home $100 per month for his family; that he was a good provider and good to her and the children; that he was not addicted to the use of intoxicants; that when he came back from the service, jobs were scarce in their home town and he eventually went to Des Moines where he was employed as a bartender at the American Legion Club until the time of his death; and that 'he came home to see me and the children and sent me money every week.'

Upon cross-examination of plaintiff, defendant was permitted to bring out that in December, 1947, she had consulted attorneys with reference to starting a divorce action against decedent; that she had on one or two occasions had him arrested for 'non-support,' and she was asked if she had not had another child in a Keokuk hospital in May of 1947. This she denied. Proper objection was made to the questions pertaining to the divorce matter only.

Defendant was then permitted, over plaintiff's objections, to show that she did, in fact, give birth to a baby in May, 1947. One Carl P. Beard, an attorney of Keokuk, said that he had seen Mrs. Evans in the hospital there at that time, and had a conversation with her involving a baby girl of which she was the mother. During the course of the controversy which this provoked, while the admissibility of the evidence was being argued in chambers, counsel for defendant told the court that they expected to prove by the witness that he was employed by persons interested in the adoption of the illegitimate child of Mrs. Evans; and that she disclosed to him that she was the mother of an illegitimate child born in Keokuk in May, 1947. The actual testimony of the witness before the jury, did not include the word 'illegitimate;' the colloquy in the judge's chambers is mentioned because it shows (if any proof were needed) defendant's real purpose.

The defendant was permitted to introduce into evidence over the strenuous objections of plaintiff's counsel, a certified copy of a birth certificate, showing that a child had been born to Mildred Lucille Evans, at St. Joseph's Hospital, in Keokuk, Iowa, on May 16th, 1947. However, on its own motion the court struck out, by cutting into and from one side of the exhibit, lines 10, 11, 12, 13 and 14, so that a hole about one inch wide by two and one-quarter inches long appears in the certificate. No explanation ws given to the jury as to why this mutilation took place; nor are we advised by the record what was thus deleted. That it contained the data which appears on all birth certificates concerning the father of the child is apparent, at least to anyone familiar with such records. Whether the jury had this knowledge we do not know; and even if it, or some of its members, knew in a general way what had been removed, they would have no way of knowing what specific data concerning the father had been contained therein. Under such circumstances, imagination might readily outrun reality. The jury was, in effect, invited to speculate upon what had been deleted, and why. Defendant's counsel says that the plaintiff was benefited by the mutilation; but in the absence of any information as to just what was eliminated, we cannot join in this opinion. Nor can we agree that plaintiff 'brought it on herself,' so far as the deletion is concerned. Granting arguendo, that the defendant had the right to show that plaintiff had not told the truth when she said that only two children had been born to her, if defendant chose to adopt this way of proving the birth of the third child, the whole of the certificate should have been admitted into evidence. The question naturally arises as to what was deleted. Did it show that Charles Evans was the father of the child? Or that it was some third party? Or that the father was unknown? It is said that: 'Where a record offered in evidence is interlined, erased, or mutilated, the interlineations or erasures should as a general rule be fully and satisfactorily explained, * * *.' 32 C.J.S., Evidence, pp. 509-510, § 646. In 20 Am.Jur. 875, § 1037, the rule is thus stated:

'Necessity of Introducing Copy of Whole Record. Where a copy of public record is offered in evidence as proof of the facts contained in the original, a party should, as a general rule, produce a copy of the entire record in question; otherwise, extracts or portions of them ordinarily will not be received. This rule is based upon the theory that the reading of the entire document is necessary in order to ascertain with certainty its real sense and meaning and that it would be unfair to permit one party to read only portions of the writing. This broad rule applies in all instances where a record is used as evidence to prove the facts therein contained.'

The conclusion is inescapable that prejudicial error appears in the introduction into evidence of the mutilated copy of the record.

II. We are also of the opinion that the defendant was permitted to go too far in cross-examination of Mildred Evans, and in the introduction of so-called rebutting or impeaching testimony concerning the domestic relations of this witness and her husband, the decedent Charles Evans. It is of...