Farmers Ins. Exchange v. Moores

• Citation: 78 N.W.2d 518,247 Iowa 1181
• Decision Date: 18 September 1956
• Docket Number: No. 48971,48971
• Parties: FARMERS INSURANCE EXCHANGE, a Corporation, Plaintiff-Appellant, v. Burton D. MOORES, Defendant, and Ezra Raymond Moores, Appellee. Frances DEMPSTER, Plaintiff-Appellant, v. Burton D. MOORES, Defendant, and Ezra Raymond Moores, Appellee.
• Court: United States State Supreme Court of Iowa

Page 518

78 N.W.2d 518

247 Iowa 1181

FARMERS INSURANCE EXCHANGE, a Corporation, Plaintiff-Appellant, v. Burton D. MOORES, Defendant, and Ezra Raymond Moores, Appellee.

Frances DEMPSTER, Plaintiff-Appellant, v. Burton D. MOORES, Defendant, and Ezra Raymond Moores, Appellee.

No. 48971.

Supreme Court of Iowa.

Sept. 18, 1956.

Harold E. Hanson, Logan, and Baird & Baird, Council Bluffs, for appellants.

Michael Murray, Logan, for appellees.

PETERSON, Justice.

On May 9, 1952, at about 1:40 A.M., the defendant Burton D. Moores was driving his 1949 Ford automobile southwesterly on U. S. highway 30, in Harrison County. About 4 miles south of Woodbine he drove on the wrong side of the highway with the result that he had a collision with a 1950 Pontiac automobile owned and driven by James S. Dempster. Mr. Dempster and his mother lost their lives. His sister, Frances Dempster was a passenger in the Dempster car and was seriously injured. Plaintiff Farmers Insurance Exchange carried collision insurance on the Dempster car and under assignment paid his heirs $1,575. The case of Farmers Insurance Exchange is for the amount paid out by the company. Frances Dempster sued for damages for personal injuries. In both cases Ezra Raymond Moores, a farmer, the father of Burton D. Moores, was joined as defendant with the allegation that he was the owner of the automobile involved, and Burton was driving it with his knowledge and consent. Early in 1952, Burton was in the Navy and was stationed at San Diego. He was desirous of purchasing a car and he called on Gray Automobile Company. He was only 20 years of age so the company told him they would have to have his father's consent for the purchase. They mailed papers to his father, which he signed and returned. His father never paid anything on the car. Burton made a cash down payment, and financed the remainder of the purchase price through a bank at San Diego. In California the certificate is issued by the registrar of vehicles at Sacramento, California. When a car is sold the documents are mailed to the department, and in due course a new registration certificate is mailed to the new owner. The certificate did not reach Burton before he left California on May 5th to drive home on leave of absence. Burton was injured in the collision, but recovered sufficiently to be present at the coroner's inquest which was held on May 16th. At the inquest he testified the car was registered in his father's name. Either the deputy sheriff or one of the highway patrolmen also told the father that the car was registered in his name, and that the car was his because Burton was a minor. The Iowa Highway Department made radio inquiry from the registration department in California as to the registration, and the answer they received was that the car was registered in the name of Estate of C. A. Gray. This was the previous owner, and the record of change had not been completed. In view of the statements with reference to ownership as above outlined, Ezra Raymond Moores in filing answer in the case of Farmers Insurance Exchange admitted the ownership. In his answer in the case of Frances Dempster he denied ownership, but admitted the car was registered in his name. On May 17, 1954, judgment was rendered in favor of Farmers Insurance Exchange by Hon. Bennett Cullison, District Judge, against Burton D. Moores and Ezra Raymond Moores for $1,575. On October 1, 1954, judgment was rendered against the same parties in favor of Frances Dempster by Hon. Vernon Johnson, District Judge, in the amount of $9,989.35. Defendants filed pleadings in the cases, although pleadings in Farmers Insurance Exchange case were not filed until after judgment. Defendants appeared by attorney, but not personally in court for the trials.

By reason of his injuries in the accident Burton was not returned to his ship in San Diego. He was assigned to the Omaha area, and was discharged on May 8, 1953. His shipmates gathered his personal belongings together, including a box of pictures, and mailed them back to him. When received he left them at his father's home. He did not examine them at the time, but on October 12, 1954, he looked through the box containing the pictures. In the box he found the registration certificate for the automobile, and discovered the car was registered in the name of Burton D. Moores and not in the name of Ezra Raymond Moores. He immediately took the certificate to his father, and his father took it to Logan to his present attorney. Since time had expired so that motion for new trial could not be filed under 58 I.C.A. R.C.P. 236 as to Farmers Insurance Exchange case, nor under R.C.P. 244 as to Dempster case, defendant Ezra Raymond Moores filed petition in each case for vacation or modification of judgment, or for new trial under R.C.P. 252(f). It was stipulated between the parties that the two cases be consolidated for trial and that all evidence offered should apply in both cases. Hearing was held before Hon. Bennett Cullison, District Judge. Defendant, Ezra Raymond Moores, offered in evidence the deposition of Albert J. Veglia, Registrar of Vehicles, Department of Motor Vehicles, State of California. He testified that prior to March 25, 1952, the 1949 Ford four-door sedan was registered in the Estate of C. A. Gray. On March 25, 1952, the registration was transferred from the estate to Burton D. Moores. A registration certificate was issued to Burton on April 16, 1952. The record is silent as to when it was mailed. He testified the registration certificate was in the name of Burton D. Moores on May 9, 1952. He identified as Exhibit 'C' a photostatic copy, showing the car registered in the name of Burton D. Moores. Both Ezra Raymond Moores and Burton D. Moores testified as to finding the certificate on October 12th and bringing it on that date to Ezra's attorney. The father was a little uncertain as to the date, under cross-examination, but careful examination of all evidence of father and son established October 12th as the date when the certificate was found and delivered to the attorney. Ezra identified the original certificate, Exhibit 1, which was found on October 12th, as being the original of Exhibit 'C', identified by Mr. Veglia.

On May 13, 1955, the trial court entered order granting new trials in both cases on the ground of newly discovered evidence. This only pertains to the father Ezra; the judgments are in effect as to the son Burton. From this order plaintiffs appeal.

I. The first matter we should consider in connection with a new trial case is the discretion which is granted to the trial judge. We have held in numerous cases the trial court has wide discretion and unless such discretion is abused this court will not interfere. We have also held that we are more reluctant to interfere when a motion has been granted than when it has been denied. Mally v. Mally, 114 Iowa 309, 86 N.W. 262; Dobberstein v. Emmet County, 176 Iowa 96, 155 N.W. 815; Sheridan Bros. v. Dealy, 198 Iowa 877, 200 N.W. 335; Manders v. Dallam, 215 Iowa 137, 244 N.W. 724; White v. Zell, 224 Iowa 359, 276 N.W. 76; Maland v. Tesdall, 232 Iowa 959, 5 N.W.2d 327; Ferguson-Diehl Const. Co. v. Langloss, 239 Iowa 346, 30 N.W.2d 320; Westergard v. Des Moines Ry. Co., 243 Iowa 495, 52 N.W.2d 39; Loughman v. Couchman, 243 Iowa 718, 53 N.W.2d 286.

This general rule is conceded by counsel for appellants, but they allege the trial court abused his discretion. There is no conflict in the evidence as offered upon the hearing as to new trials concerning the fact of the newly discovered evidence, except identification of the certificate, which we will consider hereafter. The matter of discretion of the court was considered in the rather early case of Mally v. Mally, supra, where the court said [114 Iowa 309, 86 N.W. 263]: 'A large discretion is vested in the trial court in matters of this kind. We are slow to reverse where a new trial is granted. * * *' Also in Sheridan Bros. v. Dealy, supra [198 Iowa 877, 200 N.W. 336]: 'The granting of a new trial is a matter resting largely in the sound discretion of the trial court, and the exercise of this discretion will not be interfered with, where a new trial has been granted, unless it appears to have been abused.' Five cases cited. In Thornton v. Boggs, 213 Iowa 849, 239 N.W. 514, 515, we quoted with approval from Jelsma v. English, 210 Iowa 1065, 231 N.W. 304, 306, as follows: "We are more reluctant to interfere with the granting of a new trial than with the refusal to allow the relief. A trial court is vested with a large discretion when passing upon a motion for a new trial. Unless that discretion is abused, this court will not interfere. Such abuse must affirmatively appear." In the recent case of Loughman v. Couchman, supra [243 Iowa 718, 53 N.W.2d 288], we said: 'Of course the trial court has a good deal of discretion in granting a new trial and we will not interfere with such an order unless it is reasonably clear there was an abuse of discretion.' Cases cited. In Torrence v. Sharp, 246 Iowa 460, 68 N.W.2d 85, 88, we said: 'Appellants concede the rule to be that a trial court has wide judicial discretion in the granting of a new trial. As said in Dewey v. Chicago & N. W. Ry. Co., 31 Iowa 373, 'They (trial courts) ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice.' It is also conceded that this court is more reluctant to interfere where a new trial is granted than where it is denied.' Cases cited.

II. There are three general principles involved in cases where a new trial has been granted on the basis of newly discovered evidence, which are pertinent to this case, and which we should consider in determining whether the trial court has abused his discretion. (1) There must be a showing of diligence by the party moving for the new trial, or a reasonable excuse must be...